The Unconstitutionality of Slavery Part 8

This power has been held by the supreme court to be an exclusive one in the general government--and one that cannot be controlled by the states.

Yet it gives congress no const.i.tutional authority to legalize any commerce inconsistent with natural justice between man and man; although the _mere_ verbal import of the words, if stretched to their utmost tension in favor of the wrong, would authorize congress to legalize a commerce in poisons and deadly weapons, for the express purpose of having them used in a manner inconsistent with natural right--as for the purposes of murder.

At natural law, and on principles of natural right, a person, who should _sell_ to another a weapon or a poison, knowing that it would, or intending that it should be used for the purpose of murder, would be legally an accessary to the murder that should be committed with it. And if the grant to congress of a "power to regulate commerce," can be stretched beyond the _innocent_ meaning of the words--beyond the power of regulating and authorizing a commerce that is consistent with natural justice--and be made to cover every thing, intrinsically criminal, that can be perpetrated under the name of commerce--then congress have the authority of the const.i.tution for granting to individuals the liberty of bringing weapons and poisons from "foreign nations" into this, and from one state into another, and selling them openly for the express purposes of murder, without any liability to legal restraint or punishment.

Can any stronger cases than these be required to prove the necessity, the soundness, and the inflexibility of that rule of law, which requires the judiciary to ascribe an innocent meaning to all language that will possibly bear an innocent meaning? and to ascribe _only_ an innocent meaning to language whose mere verbal import might be susceptible of both an innocent _and_ criminal meaning? If this rule of interpretation could be departed from, there is hardly a power granted to congress, that might not _lawfully_ be perverted into an authority for legalizing crimes of the highest grade.

In the light of these principles, then, let us examine those clauses of the const.i.tution, that are relied on as recognizing and sanctioning slavery. They are but three in number.

The one most frequently quoted is the third clause of Art. 4, Sec. 2, in these words:

"No person, held to service or labor in one state, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due."

There are several reasons why this clause renders no sanction to slavery.

1. It must be construed, if possible, as sanctioning nothing contrary to natural right.

If there be any "service or labor" whatever, to which any "persons"

whatever may be "held," _consistently with natural right_, and which any person may, consistently with natural right, "_claim_" as his "_due_" of another, such "service or labor," and _only_ such, is recognized and sanctioned by this provision.

It needs no argument to determine whether the "service or labor," that is exacted of a slave, is such as can be "_claimed_," _consistently with natural right_, as being "_due_" from him to his master. And if it cannot be, some other "service or labor" must, if possible, be found for this clause to apply to.

The proper definition of the word "service," in this case, obviously is, the labor of a _servant_. And we find, that at and before the adoption of the const.i.tution, the persons recognized by the state laws as "servants," const.i.tuted a numerous cla.s.s. The statute books of the states abounded with statutes in regard to "servants." Many seem to have been indented as servants by the public authorities, on account of their being supposed incompetent, by reason of youth and poverty, to provide for themselves. Many were doubtless indented as apprentices by their parents and guardians, as now. The English laws recognized a cla.s.s of servants--and many persons were brought here from England, in that character, and retained that character afterward. Many indented or contracted themselves as servants for the payment of their pa.s.sage money to this country. In these various ways, the cla.s.s of persons, recognized by the statute books of the states as "servants," was very numerous; and formed a prominent subject of legislation. Indeed, no other evidence of their number is necessary than the single fact, that "persons bound to service for a term of years," were specially noticed by the const.i.tution of the United States, (Art. 1, Sec. 2,) which requires that they be counted as units in making up the basis of representation. There is therefore not the slightest apology for pretending that there was not a sufficient cla.s.s for the words "service or labor" to refer to, without supposing the existence of slaves.[20]

2. "_Held to service or labor_," is no legal description of slavery.

Slavery is property in man. It is not necessarily attended with either "service or labor." A very considerable portion of the slaves are either too young, too old, too sick, or too refractory to render "service or labor." As a matter of fact, slaves, who are able to labor, may, in general, be compelled by their masters to do so. Yet labor is not an essential or necessary condition of slavery. The essence of slavery consists in a person's being owned as property--without any reference to the circ.u.mstances of his being compelled to labor, or of his being permitted to live in idleness, or of his being too young, or too old, or too sick to labor.

If "service or labor" were either a test, or a necessary attendant of slavery, that test would of itself abolish slavery; because all slaves, before they can render "service or labor," must have pa.s.sed through the period of infancy, when they could render neither service nor labor, and when, therefore, according to this test, they were free. And if they were free in infancy, they could not be subsequently enslaved.

3. "Held to service or labor in one state, _under the laws thereof_."

The "_laws_" take no note of the fact whether a slave "labors," or not.

They recognize no obligation, on his part, to labor. They will enforce no "_claim_" of a master, upon his slave, for "service or labor." If the slave refuse to labor, the law will not interfere to compel him. The law simply recognizes the master's _right of property_ in the slave--just as it recognizes his right of property in a horse. Having done that, it leaves the master to compel the slave, if he please, and if he can--as he would compel a horse--to labor. If the master do not please, or be not able, to compel the slave to labor, the law takes no more cognizance of the case than it does of the conduct of a refractory horse. In short, it recognizes no obligation, on the part of the slave, to labor, if he can avoid doing so. It recognizes no "_claim_," on the part of the master, upon his slave, for "services or labor," as "_due_" from the latter to the former.

4. Neither "service" nor "labor" is necessarily slavery; and not being necessarily slavery, the words cannot, in this case, be strained beyond their necessary meaning, to make them sanction a wrong. The law will not allow words to be strained a hair's breadth beyond their _necessary_ meaning, to make them authorize a wrong. _The stretching, if there be any, must always be towards the right._ The words "service or labor" do not necessarily, nor in their common acceptation, so much as suggest the idea of slavery--that is, they do not suggest the idea of the laborer or servant being the property of the person for whom he labors. An indented apprentice serves and labors for another. He is "_held_" to do so, under a contract, and for a consideration, that are recognized, by the laws, as legitimate, and consistent with natural right. Yet he is not owned as property. A condemned criminal is "held to labor"--yet he is not owned as property. The law allows no such straining of the meaning of words towards the wrong, as that which would convert the words "service or labor" (of men) into _property in man_--and thus make a man, who serves or labors for another, the property of that other.

5. "No person held to service or labor, in one state, under the _laws_ thereof."

The "_laws_," here mentioned, and impliedly sanctioned, are, of course, only _const.i.tutional_ laws--laws, that are consistent, both with the const.i.tution of the state, and the const.i.tution of the United States.

None others are "_laws_," correctly speaking, however they may attempt to "hold persons to service or labor," or however they may have the forms of laws on the statute books.

This word "laws," therefore, being a material word, leaves the whole question just where it found it--for it certainly does not, _of itself_--nor indeed does any other part of the clause--say that acts of a legislature, declaring one man to be the property of another, is a "_law_" within the meaning of the const.i.tution. 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 const.i.tution whatever, state or national.

The burden of proof, then, still rests upon the advocates of slavery, to show that an act of a state legislature, declaring one man to be the property of another, is a "law," within the meaning of this clause. To a.s.sert simply that it is, without proving it to be so, is a mere begging of the question--for that is the very point in dispute.

The question, therefore, of the _const.i.tutionality_ of the slave acts must first be determined, before it can be decided that they are "laws"

within the meaning of the const.i.tution. That is, they must be shown to be consistent with the const.i.tution, before they can be said to be sanctioned as "laws" by the const.i.tution. Can any proposition be plainer than this? And yet the reverse must be a.s.sumed, 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 const.i.tutional. If it could, any act, purporting to hold "persons to service or labor," would necessarily be const.i.tutional, without any regard to the "persons" so held, or the conditions on which they were held. It would be const.i.tutional, _solely because it purported to hold persons to service or labor_. If this were the true doctrine, any of us, without respect of persons, might be held to service or labor, at the pleasure of the legislature. And then, if "service or labor" mean slavery, it would follow that any of us, without discrimination, might be made slaves. And thus the result would be, that the acts of a legislature would be const.i.tutional, _solely because they made slaves of the people_.

Certainly this would be a new test of the const.i.tutionality of laws.

All the arguments in favor of slavery, that have heretofore been drawn from this clause of the const.i.tution, have been founded on the a.s.sumption, that if an act of a legislature did but purport to "hold persons to service or labor"--no matter how, on what conditions, or for what cause--that fact alone was sufficient to make the act const.i.tutional. The entire sum of the argument, in favor of slavery, is but this, viz. the const.i.tution recognizes the const.i.tutionality of "laws" that "hold persons to service or labor,"--slave acts "hold persons to service or labor,"--therefore slave acts must be const.i.tutional. This profound syllogism is the great pillar of slavery in this country. It has, (if we are to judge by results,) withstood the scrutiny of all the legal ac.u.men 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 const.i.tutions 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 const.i.tutions as lawful.

No doubt the clause contemplates that there may be const.i.tutional "laws," under which persons may be "held to service or labor." But it does not follow, therefore, that every act, that purports to hold "persons to service or labor," is const.i.tutional.

We are obliged, then, to determine whether a statute be const.i.tutional, before we can determine whether the "service or labor" required by it, is sanctioned by the const.i.tution 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 const.i.tutionality.

Whether it be or be not const.i.tutional, 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 const.i.tution requires of the people, is of course not sanctioned by this clause of the const.i.tution as being lawfully required. Neither, of course, is the requirement of service or labor, _on any conditions, that are inconsistent with any rights that are secured to the people by the const.i.tution_, sanctioned by the const.i.tution as lawful. Slave laws, then, can obviously be held to be sanctioned by this clause of the const.i.tution, only by gratuitously a.s.suming, 1st, that the const.i.tution neither confers any rights, nor imposes any duties, upon the people of the United States, inconsistent with their being made slaves; and, 2d, that it sanctions the general principle of holding "persons to service or labor"

arbitrarily, without contract, without compensation, and without the charge of crime. If this be really the kind of const.i.tution 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 const.i.tution 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 const.i.tution that was in existence at the time the const.i.tution of the United States was adopted. And if they were not "laws" at that time, they have not been made so since.

6. The const.i.tution itself, (Art. 1. Sec. 2,) in fixing the basis of representation, has plainly _denied_ that those described in Art. 4, as "persons held to service or labor," are slaves,--for it declares that "persons bound to service for a term of years" shall be "included" in the "number of _free_ persons." There is no _legal_ difference between being "bound to service," and being "held to service or labor." The addition, in the one instance, of the words, "for a term of years," does not alter the case, for it does not appear that, in the other, they are "held to service or labor" beyond a fixed term--and, in the absence of evidence from the const.i.tution itself, the presumption must be that they are not--because such a presumption makes it unnecessary to go out of the const.i.tution to find the persons intended, and it is also more consistent with the prevalent munic.i.p.al, and with natural law.

And it makes no difference to this result, whether the word "free," in the first article, be used in the political sense common at that day, or as the correlative of slavery. In either case, the persons described as "free," could not be made slaves.

7. The words "service or labor" cannot be made to include slavery, unless by reversing the legal principle, that the greater includes the less, and holding that the less includes the greater; that the innocent includes the criminal; that a sanction of what is right, includes a sanction of what is wrong.

Another clause relied on as a recognition of the const.i.tutionality 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 _a.s.sumes_, _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 const.i.tution sanction or recognize slavery. Now it is very clear that no such meaning can be given to the word, _for such a purpose_. The ordinary meaning of a word cannot be thus arbitrarily changed, _for the sake of sanctioning a wrong_. A choice of meaning would be perfectly allowable, and even obligatory, if made for the purpose of _avoiding_ any such sanction; but it is entirely inadmissable for the purpose of giving it. The legal rules of interpretation, heretofore laid down, imperatively require this preference of the right, over the wrong, in all cases where a word is susceptible of different meanings.

The English law had for centuries used the word "free" as describing persons possessing citizens.h.i.+p, 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 const.i.tutions, in existence at the time the const.i.tution of the United States was formed and adopted, used the word in this sense, and no other. The Articles of Confederation--the then existing national compact of union--used the word in this sense, and no other. The sense is an appropriate one in itself; the most appropriate to, and consistent with the whole character of the const.i.tution, of any of which the word is susceptible. In fact, it is the only one that is either appropriate to, or consistent with, the other parts of the instrument. Why, then, is it not the legal meaning?

Manifestly it _is_ the legal meaning. No reason whatever can be given against it, except that, if such be its meaning, _the const.i.tution will not sanction slavery_! A very good reason--a perfectly unanswerable reason, in fact--in favor of this meaning; but a very futile one against it.

It is evident that the word "free" is not used as the correlative of slavery, because "Indians not taxed" are "excluded" from its application--yet they are not therefore slaves.

Again. The word "free" cannot be presumed to be used as the correlative of slavery--because slavery then had no _legal_ existence. The word must obviously be presumed to be used as the correlative of something that did _legally_ exist, rather than of something that did not legally exist. If it were used as the correlative of something that did not legally exist, the words "all other persons" would have no legal application. Until, then, it be shown that slavery had a legal existence, authorized either by the United States const.i.tution, or by the then existing state const.i.tutions--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_ const.i.tutions, the word "free," in the United States const.i.tution, could not have been claimed to have been used as its correlative, unless it had appeared that the United States const.i.tution 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 const.i.tution of the United States has done, in the persons of aliens.

The power of naturalization is, by the const.i.tution, taken from the states, and given exclusively to the United States. The const.i.tution of the United States, therefore, necessarily supposes the existence of aliens--and thus furnishes the correlative sought for. It furnishes a cla.s.s 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 const.i.tution 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 const.i.tutions_--the only instruments to which we can go--we can find there _no other_ persons for the words to apply to--no other cla.s.ses answering to the description of the "free persons" and "all other persons,"--than the very cla.s.ses suggested by the United States const.i.tution itself, to wit, citizens and aliens; (for it has previously been shown that the then existing state const.i.tutions recognized no such persons as slaves.)

If we are obliged, (as the slave argument claims we are,) to go out of the const.i.tution of the United States to find the cla.s.s 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 const.i.tution to find the persons described in it as "the free" and "all other persons," we are obliged to go out of it to ascertain who are the persons on whom it declares that the representation of the government shall be based, and on whom, of course, the government is founded. And thus we should have the absurdity of a const.i.tution 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 const.i.tution, to find the persons on whom the government rests, and those persons are arbitrarily prescribed by some other instrument, independent of the const.i.tution, 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 const.i.tution and laws being the supreme law of the land.

Again. It certainly cannot be admitted that we must go out of the United States const.i.tution to find the cla.s.ses whom it describes as "the free,"

and "all other persons" than "the free," until it be shown that the const.i.tution has told us where to go to find them. _In all other cases_, (without an exception, I think,) where the const.i.tution makes any of its provisions dependent upon the state const.i.tutions, 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 const.i.tutions, 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 const.i.tution of the United States, for going to the state const.i.tutions, to find the cla.s.ses described in the former as the "free persons" and "all other persons," than we have for going to Turkey or j.a.pan. We are compelled, therefore, to find them in the const.i.tution 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 const.i.tutions, or to the state statute books, to find who were the persons intended by the const.i.tution of the United States; and if, as the slave argument a.s.sumes, it was left to the states respectively to prescribe who should, and who should not, be "free" within the meaning of the const.i.tution 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 cla.s.ses of persons, as there were different states in the union. Not only so, but the application might also be varied at pleasure in the same state. One inevitable consequence of this state of things would be, that there could be neither a permanent, nor a uniform basis of representation throughout the country. Another possible, and even probable consequence would be, such inextricable confusion, as to the persons described by the same terms in the different states, that Congress could not apportion the national representation at all, in the manner required by the const.i.tution. The questions of law, arising out of the different uses of the word "free," by the different states, might be made so endless and inexplicable, that the state governments might entirely defeat all the power of the general government to make an apportionment.

If the slave construction be put upon this clause, still another difficulty, in the way of making an apportionment, would follow, viz., that congress could have no _legal_ knowledge of the persons composing each of the two different cla.s.ses, on which its representation must be based; for there is no legal record--known to the laws of the United States, or even to the laws of the states--of those who are slaves, or those who are not. The information obtained by the census takers, (who have no legal records to go to,) must, in the nature of things, be of the most loose and uncertain character, on such points as these. Any accurate or _legal_ knowledge on the subject is, therefore, obviously impossible. But if the other construction be adopted, this difficulty is avoided--for congress then have the control of the whole matter, and may adopt such means as may be necessary for ascertaining accurately the persons who belong to each of these different cla.s.ses. 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 cla.s.ses, "free" and "all other persons,"