CHAPTER XVII. 

RULES OF INTERPRETATION.fn42

The three preceding chapters, as also chapter first, although their principles are claimed to be of paramount authority, as law, to all statutes and constitutions inconsistent with them, are nevertheless not claimed to have anything to do with the question of the constitutionality or unconstitutionality of slavery, further than this, viz., that they indicate the rule of interpretation that should be adopted in construing the constitution. They prove the reasonableness, propriety, and therefore truth, of the rule, quoted from the supreme court of the United States, and adopted in the prior argument, as the fundamental rule of interpretation; a rule which, if adhered to, unquestionably proves that slavery is unconstitutional. That rule is this.

"Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws fn43 is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects." 2 Cranch, 390.

The whole question of the constitutionality or unconstitutionality [*156] of slavery, is one of construction. And the real question is only whether the rules, applicable to the interpretation of statutes, and all other legal instruments, that are enforced by courts as obligatory, shall be applied also to the interpretation of the constitution? or whether these rules are to be discarded, and the worst possible meaning of which the words are capable put upon the instrument arbitrarily, and for no purpose but to sustain slavery? This is the question, and the whole of it.

The validity of the rule, quoted from the supreme court, has not, so far as I am aware, been denied. But some of the explanations given of the rule, in the prior argument, have been called in question. As the whole question at issue, in regard to the constitutionality of slavery, is one solely of interpretation, it becomes important to sustain, not only the explanations given of this rule, [*157] but also some of the other rules laid down in that argument. And hence the necessity of going more fully into the question of interpretation. 

FIRST RULE.

The first rule, in the interpretation of the constitution, as of all other laws and contracts, is, "that the intention of the instrument must prevail."

The reason of this rule is apparent; for unless the intention of the instrument prevail, wherefore was the instrument formed? or established as law?  If any other intention is to prevail over the instrument, the instrument is not the law, but a mere nullity.

The intentions of a statute or constitution are always either declared, or presumed.

The declared intentions of a statute or constitution are the intentions that are clearly expressed in terms in the statute or constitution itself.

Where the intentions of statutes and constitutions are not clearly expressed in the instruments themselves, the law always presumes them. And it always presumes the most just and beneficial intentions, which the words of the instruments, taken as a whole, can fairly be made to express, or imply.

Statutes and constitutions, in which no intentions were declared, and of which no reasonable intentions could be presumed, would be of no legal validity. No intentions that might be attributed to them by mere force of conjecture, and exterior history, could be legally ascribed to them, or enforced as law.

The intentions, which individuals, in discussions, conversations, and newspapers, may attribute to statutes and constitutions, are no part of the instruments themselves. And they are not of the slightest importance as evidence of their intentions, especially if they are in opposition, either to the declared, or the presumed, intentions of the instruments. If the intentions of statutes and constitutions were to be gathered from the talk of the street, there would be no use in writing them in terms. The talk of the street, and not the written instruments, would constitute the laws. And the same instrument would be as various and contradictory in its meanings, as the various conjectures, or assertions, that might be heard from the mouths of individuals; for one mall's conjecture or assertion would be of as much legal value as another's; and effect would therefore have to be given to all, if to any. [*158]

Those who argue for slavery, hold that "the intentions of the people" must prevail, instead of "the intentions of the instrument ;" thus falsely assuming that there is a legal distinction between the intentions of the instrument and the intentions of the people. Whereas the only object of the instrument is to express the intentions of the people. That is the only motive that can be attributed to the people, for its adoption. The people established the constitution solely to give written and certain evidence of their intentions. Having their written instrument, we have their own testimony, their own declaration of what their intentions are. The intentions of the instrument, then, and the intentions of the people, are identical. And it is legally a matter of indifference which forth of expression is used; for both legally express the same idea.

But the same class of persons, who assume a distinction between the intentions of the instrument and the intentions of the people, labor to prove, by evidence extraneous to the instrument, that the intentions of the people were different from those the instrument expresses; and then they infer that the instrument must be warped and twisted, and made to correspond to these unexpressed intentions of the people.

The answer to all this chicanery is this. The people, assuming that they have the right to establish their will as law, have, in theory, agreed upon an instrument to express their will, or their intentions. They have thus said that the intentions expressed in that instrument are their intentions. Also that their intentions, as expressed in the instrument, shall be the supreme law of the land.

"The people," by thus agreeing that the intentions, expressed by their joint instrument, shall be the supreme law of the land, have virtually and legally contracted with each other, that, for the sake of having these, their written intentions, carried into effect, they will severally forego all other intentions, of every name and nature whatsoever, that conflict with the written ones, in which they are all agreed.

Now this written instrument, which is, in theory, the voluntary contract of each and every individual with each and every other, is the highest legal evidence of their intentions. It is the specific evidence that is required of all the parties to it. It is the only evidence that is required, or accepted, of any. It is equally valid and sufficient, in favor of all, and against all. It is the only [*159] evidence that is common to ail. The intentions it expresses must, therefore, stand as the intentions of all, and be carried into effect as law, in preference to any contrary intentions, that may have been separately, individually, and informally expressed by any one or all the parties on other occasions; else the contract is broken.

As long as the parties acknowledge the instrument as being their contract, they are each and all estopped by it from saying that they have any intentions adverse to it.  Its intentions and their intentions are identical, else the parties individually contradict themselves. To acknowledge the contract, and yet disavow its intentions, is perfect self‑contradiction.

If the parties wish to repudiate the intentions of the instrument, they must repudiate or abolish the instrument itself. If they wish to change the intentions of the instrument, in any one or more particulars, they must change its language in those particulars, so as to make it express the intentions they desire. But no change can be wrought by exterior evidence; because the written instrument, to which, and to which only, all have, in theory, agreed, must always be the highest evidence that the courts can have of the intentions of the whole people.

If, therefore, the fact were historically well authenticated, that every man in the nation had publicly asserted, within one hour after the adoption of the constitution, (that is, within one hour after he had, in theory, agreed to it,) that he did not agree to it intending that any or all of the principles expressed by the instrument should be established as law, all those assertions would not be of the least legal consequence in the world; and for the very sufficient reason, that what they have said in the instrument is the law; and what they have said out of it is no part of it, and has no legal bearing upon it.

Such assertions, if admitted to be true, would only prove that the parties had lied when they agreed to the instrument; and if they lied then. they may be lying now. If we cannot believe their first and formal assertion of their intentions, we cannot believe their second and informal one.

The parties cannot claim that they did not understand the language of the instrument; for if they did not understand the language then, when they agreed to it, how can we know that they understand it now, when they dissent from it? Or how can we know that they so much as understand the very language they are [*160] now using in making their denial? or in expressing their contrary intentions?

They cannot claim that they did not understand the rules, by which their language, used in the instrument, would be interpreted, for if they did not understand them then, how can we know that they understand them now? Or how do we know that they understand the rules, by which their present declarations of their intentions will be interpreted?

The consequence is, that every man must be presumed to understand a contract to which he agrees, whether he actually does understand it or not.  He must be presumed to understand the meaning of its words; the rules by which its words will be interpreted; and the intentions, which its words, thus interpreted, express. Otherwise men can never make contracts that will be binding upon them; for a man cannot bind himself by a contract which he is not presumed to understand; and it can seldom, or never, be proved whether a man actually does understand his contract, or not. If, therefore, at any time, through ignorance, carelessness, mental reservations, or fraudulent designs, men agree to instruments that express intentions different from their own, they must abide the consequences. The instrument must stand, as expressing their intentions, and their adverse intentions must fail of effect.

Every one, therefore, when he agrees to a contract, judges for himself, and takes his own risk, whether he understands the instrument to which he gives his assent. It is plainly impossible to have constitutions established by contract of the people with each other on any other principle than this; for, on any other principle, it could never be known what the people, as a whole, had agreed to. If every individual, after he had agreed to a constitution, could set up his own intentions, his own understandings of the instrument, or his own mental reservations, in opposition to the intentions expressed by the instrument itself, the constitution would be liable to have as many different meanings as there were different individuals who had agreed to it. And the consequence would be, that it would have no obligation at all, as a mutual and binding contract, for, very likely, no two of the whole would have understood the instrument alike in every particular, and therefore no two would have agreed to the same thing.

Each man, therefore, before he agrees to an instrument, must judge for himself, taking his own risk whether he understands it. [*161]

After he has agreed to it, he is estopped, by his own instrument, from denying that his intentions were identical with the intentions expressed by the instrument.

The constitution of the United States, therefore, until its language is altered, or the instrument itself abolished, by the people of the United States, must be taken to express the intentions of the whole people of the United States, whether it really do express their intentions or not. It is the highest evidence of their intentions. It is the only evidence which they have agreed to furnish of their intentions. All other adverse evidence is, therefore, legally worthless and inadmissible. The intentions of the instrument, then, must prevail, as being the intentions of the people, or the constitution itself is at an end. 

SECOND RULE.

The second rule of interpretation is, that "the intention of the constitution must be collected from its words.'' fn43a

This rule is, in reality, nearly synonymous with the preceding one; and its reason, like that of the other, is apparent; for why are words used in writing a law, unless it is to be taken for granted [*162] that when written they contain the law? If more was meant, why was not more said? If less was meant, why was so much said? If the contrary was meant, why was this said, instead of the contrary?

To go beyond the words of a law, (including their necessary or reasonable implications,) in any case, is equivalent to saying that the written law is incomplete; that it, in reality, is not a law, but only a part of one; and that the remainder was left to be guessed at, or rather to be made, by the courts.

It is, therefore, a violation of legal rules, to go beyond the words of a law, (including their necessary or reasonable implications,) in any case whatever. fn43b

To go contrary to the words of a law, is to abolish the law itself, by declaring its words to be false.

But it happens that the same words have such various and opposite meanings in common use, that there would be no certainty as to the meaning of the laws themselves, unless there were some rules for determining which one of a word's various meanings was to be attached to it, when the word was found in a particular connection. Hence the necessity of rules of interpretation. Their office is to determine the legal meaning of a word, or, rather, to select the legal meaning of word, out of all the various meanings which the word bears in common use. Unless this selection were made, a word might have two or more different and contradictory meanings in the same place. Thus the law would be mere jargon, instead of being a certain and precise rule of action.

These rules of interpretation have never been specially enacted by statute, or constitutions, for even a statute or constitution enacting them would be unintelligible or uncertain, until interpreted by them. They have, therefore, originated in the necessity of the case; in the inability of words to express single, definite, and clear ideas, such as are indispensable to certainty in the law, unless some one of their several meanings be selected as the legal one.

Men of sense and honesty, who have never heard of these rules as legal ones, but who, nevertheless, assume that written laws and contracts are made for just and reasonable ends, and then judge of [*163] their meaning accordingly, unconsciously act upon these rules in so doing. Their perception of the fact, that unless the meaning of words were judged of in this manner, words themselves could not be used for writing laws and contracts, without being liable to be perverted to subserve all manner of injustice, and to defeat the honest intentions of the parties, forces upon them the conviction, that the legal meaning of the words must be such, and only such, as (it will hereafter be seen) these rules place upon them. The rules, then, are but the dictates of common sense and common honesty, applied to determining the meaning of laws and contracts. And common sense and common honesty are all that is necessary to enable one to judge of the necessity and soundness of the rules.

Rules of interpretation, then, are as old as the use of words, in prescribing laws, and making contracts. They are as necessary for defining the words as the words are for describing the laws and contracts. The words would be unavailable for writing laws and contracts, without the aid of the rules for interpreting them. The rules, then, are as much a part of the language of laws and contracts as are the words themselves. Their application to the words of laws and contracts is as much presumed to be understood, by all the parties concerned, as is the meaning of the words themselves. And courts have no more right to depart from, or violate, these rules, than to depart from, or contradict, the words themselves.

The people must always be presumed to understand these rules, and to have framed all their constitutions, contracts, &c., with reference to them, as much as they must be presumed to understand the common meanings of the words they use, and to have framed their constitutions and contracts with reference to them. And why? Because men's contracts and constitutions would be no contracts at all, unless there were some rules of interpretation understood, or agreed upon, for determining which was the legal meaning of the words employed in forming them. The received rules of interpretation have been acted upon for ages; fn43c indeed, they must have been acted upon through all time, since men first attempted to make honest contracts with each other. As no other rules than these received ones can be presumed against the parties, and as these are the only ones that can secure men's honest [*164] rights, under their honest contracts; and, as everybody is bound to know that courts must be governed by fixed rules, applying the same to all contracts whatsoever, it must always be presumed, in each particular case, that the parties intended their instruments should be construed by the same rules by which the courts construe all others.

Another reason why the people must be presumed to know these rules, at least m their application to cases where a question of right and wrong is involved, is, that the rules are but a transcript of a common principle of morality, to wit, the principle which requires us to attribute good motives and good designs to all the words and actions of our fellow‑men, that can reasonably bear such a construction. This is a rule by which every man claims that his own words and actions should be judged. It is also a principle of law, as well as of morals, and one, too; of which every man who is tried for an offence claims the benefit. And the law accords it to him. So long as there be so much as "a reasonable doubt" whether his words or actions evince a criminal intent, the law presumes a good intent, and gives him the benefit of it. Why should not the same rule be observed, in inferring the intent of the whole community, from the language of their laws and constitutions, which is observed in inferring the intent of each individual of that community from his language and conduct? It should clearly require as strong proof to convict the whole community of a crime, (and an unjust law or constitution is one of the highest of all possible crimes,)as it does to convict a single individual. The principle, then, is the same in both cases; and the practice of those who infer a bad intent from the language of the constitution, so long as the language itself admits of a reasonable doubt whether such be its intent, goes the length of overthrowing an universally recognized principle of law, on which the security of every accused person is liable to depend. fn43d For these, and perhaps other reasons, the people are presumed [*165] to understand the reason and justice of these rules, and therefore, to understand that their contracts will be construed by them. If, therefore, men ever frame constitutions or contracts with the intention that they shall be construed contrarily to these rules, their intention must be defeated; and for the same reason that they would have to be defeated if they had used words in a directly opposite sense to the common ones, such, for example, as using white when they meant black, or black when they meant white.

For the sake of having a case for the rules to apply to, we will take the representative clause, embracing the word "free," (Art. 1, sec. 2,) which is the first and the strongest of all the clauses in the constitution that have been claimed as recognizing and sanctioning slavery. Indeed, unless this clause do recognize and sanction it, nobody would pretend that either of the other clauses do so. The same rules, if any, that prevent the representative clause and the word "free" from having any legal reference to slavery, will also have the same effect upon the other clauses. If, therefore, the argument for slavery, based upon the word "free," falls to the ground, the arguments based upon. the words "importation of persons," "service and labor," &c., must also fall; for they can stand, if at all, only by means of the support they obtain from the argument drawn from the word "free." 

THIRD RULE.

A third rule is, that we are always, if possible, to give a word some meaning appropriate to the subject matter of the instrument itself. fn43e

This rule is indispensable, to prevent an instrument from degenerating into absurdity and nonsense.

In conformity with this rule, words which purport to describe certain classes of persons existing under the constitution, must be taken in a sense that will aptly describe such persons as were actually to exist under it, and not in a sense that will only describe those who were to have no existence under it.

It would, for instance, be absurd for the constitution to provide that, in every ten years, there should be "added to the whole num‑ [*166]  ber of free persons three fifths of all other persons," if them were really to be. no other persons than the free.

If, therefore, a sense correlative with slavery were given to the word free, it would make the word inappropriate to the subject matter of the constitution, unless there were really to be slaves under the constitution.

It is, therefore, inadmissible to say that the word free is used in the constitution as the correlative of slaves, until it be first proved what there were to be slaves under the constitution.

We must find out what classes of persons were to exist under the constitution, before we can know what classes of persons the terms used in the constitution apply to.

If the word free had but one meaning, we might infer, from the word itself, that such persons as that word would necessarily describe were to exist under the constitution. But since the word has various meanings, we can draw no certain inference from it alone, as to the class of persons to whom it is applied. We must, therefore, fix its meaning in the constitution, by ascertaining, from other parts of the instrument, what kind of "free persons," and also what kind of "other persons," were really to exist under the constitution. Until this is done, we cannot know the meaning of the word free, as it is used in the constitution.

Those who say that the word free is used, in the constitution, in a sense correlative with slavery, assume the very point in dispute; viz., that there were to be slaves under the constitution. This is the point to be proved, and cannot be assumed. And until it be proved, it is making nonsense of the constitution, to say that the word free is used as the correlative of slavery.

There is no language in the constitution, that expressly declares, or necessarily implies, that slavery was to exist under the constitution. To say, therefore, that the word free was used as the correlative of slaves, is begging the question that there were to be slaves; it is assuming the whole ground in dispute. Those who argue for slavery, must first prove, by language that can mean nothing less, that slavery was to be permitted under the constitution. Then they may be allowed to infer that the word free is used as its correlative. But until then, a different meaning must be given to the word, else the cause before cited is converted into nonsense.

On the other hand, in giving the word free the sense common at that day, to wit, a sense correlative with persons not naturalized, [*167] and not possessed of equal political privileges with others, we assume the existence of no class of persons except those whom the constitution itself especially recognizes, to wit, those possessing full political rights, as citizens, or members of the state, and those unnaturalized persons who will not possess full political rights. The constitution explicitly recognizes these two classes, because it makes a distinction between them in the matter of eligibility to certain offices, and it also explicitly authorizes Congress to pass laws for the naturalization of those who do not possess full rights as citizens.

If, then, we take the word free in the sense correlative with unnaturalized persons, the word has a meaning that is already appropriate to the subject matter of the instrument, and requires no illegal assumptions to make it so.

On the other hand, if we use the word in the sense correlative with slaves, we either make nonsense of the language of the constitution, or else we assume the very point in dispute, viz., that there were to be slaves under the constitution; neither of which have we any right to do.

This argument is sufficient, of itself, to overthrow all the arguments that were ever made in favor of the constitutionality of slavery.

Substantially the whole argument of the advocates of slavery is founded on the assumption of the very fact in dispute, viz., that there was to be slavery under the constitution. Not being able to prove, by the words of the constitution, that there was to be any slavery under it, they assume that there was to be slavery, and then use that assumption to prove the meaning of the constitution itself. In other words, not being able to prove slavery by the constitution, they attempt to prove the meaning of the constitution by slavery. Their whole reasoning on this point is fallacious, simply because the legality of slavery, under the constitution, is itself a thing to be proved, and cannot be assumed.

The advocates of slavery cannot avoid this dilemma, by saying that slavery existed at the time the constitution was adopted; for many things existed at the time, such as their, robbery, piracy, &c., which were not therefore to be legalized by the constitution. And slavery had no better constitutional or legal existence than either of these crimes.

Besides, even if slavery had been legalized (as it was not) by may of the then existing state constitutions, its case would have [*168] been no better; for the United States constitution was to be the supreme law of the land, anything in the constitution to laws of any state to the contrary notwithstanding. The constitution being the supreme law, operating directly upon the people, and securing to them certain rights, it necessarily annulled everything that might be found in the state constitutions that was inconsistent with the freedom of the people to enjoy those rights. It of course would have annulled the legality of slavery, if slavery had then had any legal existence; because a slave cannot enjoy the rights secured by the United States constitution.

Further. The constitution is a political instrument, treating of men's political rights and privileges. Its terms must therefore be taken in their political sense, in order to be appropriate to the subject matter of the instrument. The word free, in its political sense, appropriately describes men's political rank as free and equal members of the state, entitled, of right, to the protection of the laws. On the other hand, the word free, in the sense correlative with slavery, has no appropriateness to the subject matter of such an instrument  ‑‑  and why? Because slavery is not, of itself, a political relation, or a political institution; although political institutions may, and sometimes do, recognize and legalize it. But, of itself, it is a merely private relation between one man and another, created by individual force, and not by political authority. Thus a strong man beats a weaker one, until the latter will obey him. This is slavery, and the whole of it; unless it be specially legalized. The United States constitution does not specially legalize it; and therefore slavery is no part of the subject matter of that instrument. The word free, therefore, in the constitution, cannot be said to be used as the correlative of slavery; because that sense would be entirely inappropriate to anything that is the subject matter of the instrument. It would be a sense which no other part of the constitution gives any occasion or authority for. 

FOURTH RULE.

A fourth rule is, that where technical words are used, a technical meaning is to be attributed to them.

This rule is commonly laid down in the above general terms. It is, however, subject to these exceptions, viz., that where the technical sense would be inconsistent with, or less favorable to, justice, or not consonant to the context, or not appropriate to the nature of the subject, some other meaning may be adopted. Sub- [*169]  ject to these exceptions, the rule is of great authority, for reasons that will hereafter appear.

Thus, in commercial contracts, the terms and phrases used in them are to be taken in the technical or professional sense common among merchants, if that sense be consonant to the context, and appropriate to the nature of the contracts.

In political contracts, the terms and phrases used in them are to be taken in the political and technical sense common in such instruments, if that sense be consonant to the context, and appropriate to the subject matter of the contracts.

Terms common and proper to express political rights, relations, and duties, are of course to be taken in the technical sense natural and appropriate to those rights, relations, and duties.

Thus, in political papers, such terms as liberty, allegiance, representation, citizenship, citizens, denizens, freemen, free subjects, freeborn subjects, inhabitants, residents, people, aliens, allies, enemies, are all to be understood in the technical sense appropriate to the subject matter of the instrument, unless there be something else, in the instrument itself, that shows that some other meaning is intended.

Terms which, by common usage, are properly descriptive of the parties to, or members of, the compact, as distinguished from others, are to be taken in the technical sense, which describes them, as distinguished from others, unless there be, in the instrument itself, some unequivocal evidence that they are to be taken in a different sense,

The authority of this rule is so well founded in nature, reason, and usage, that it is almost strange that it should be questioned. It is a rule which everybody, by their common practice, admit to be correct; for everybody more naturally understands a word in its technical sense than in any other, unless that sense be inconsistent with the context.

Nevertheless, an attempt has been made by some persons to deny the rule, and to lay down a contrary one, to wit, that where a word has what they choose to call a common or popular meaning, and also a technical one, the former is to be preferred, unless there be something, in other parts of the instrument, that indicates that the technical one should be adopted.

The argument for slavery virtually claims, not only that this so called common and popular meaning of a word, (and especially of the word" free,") is to be preferred to the technical one, but also that this simple preference is of sufficient consequence to out‑ [*170] weigh all considerations of justice and injustice, and indeed all, or nearly all, the other considerations on which legal rules of interpretation are founded. Nevertheless I am not aware that the advocates of slavery have ever had the good fortune to find a single instance where a court has laid it down, as a rule, that any other meaning is, of itself, preferable to the technical one; much Jess that that preference was sufficient, in cases where right and wrong were involved, to turn the scale in favor of the wrong. And if a court were to lay down such a rule, every one is at liberty to judge for himself of its soundness.

But inasmuch as this pretended rule is one of the main pillars, if not the main pillar, in support of the constitutionality of slavery, it is entitled to particular consideration.

The falsehood of this pretended rule will be evident when it is considered that it assumes that the technical meaning of a word is not the common and popular one; whereas it is the very commonness, approaching to uniformity, with which a word is used in a particular sense, in relation to particular things, that makes it technical. fn43f

A technical word is a word, which in one profession, art, or trade, or in reference to particular subjects, is generally, or uniformly, used in a particular sense, and that sense a somewhat different one from those in which it is generally used out of that profession, art, or trade, or in reference to other subjects.

There probably is not a trade that has not its technical words. Even the cobbler has his. His ends are generally quite different things from the ends of other people. If we hear a cobbler speak of his ends, we naturally suppose he means the ends of his threads, because he has such frequent Occasion to speak of and use them. If we hear other people speak of their ends, we naturally suppose that they mean the objects they have in view. With the cobbler, then, ends is a technical word, because he frequently or generally uses the word in a different sense from that in which it is used by other people.

Mechanics have very many technical words, as, for instance, to describe particular machines, parts of machines, particular processes [*171] of labor, and particular articles of manufacture. And when we hear a mechanic use one of these words, we naturally suppose that he uses it in a technical sense  ‑‑  that is, with reference to his particular employment, machinery, or production. And why do we suppose this? Simply because it is more common for him to use the word in that sense than in any other, especially if he is talking of anything in regard to which that sense would be appropriate. If, however, his talk is about some other subject, in relation to which the technical sense of the word would not be appropriate, then we conclude that he uses it, not in the technical sense appropriate to his art, but in some other sense more appropriate to the subject on which he is speaking.

So, if we were to hear a banker speak of "the days of grace having expired," we should naturally attach a very different meaning to the words from what we should if we were to hear them from the pulpit. We should suppose, of course, that he used them in the technical sense appropriate to his business, and that he had reference only to a promissory note that had not been paid when due.

If we were to hear a banker speak of a check, we should suppose he used the word in a technical sense, and intended only an order for money, and not a stop, hindrance, or restraint.

So, if one farmer were to say of another, He is a good husband, we should naturally infer that he used the word husband in the technical sense appropriate to his occupation, meaning that he cultivated and managed his farm judiciously. On the other hand, if we were to hear lawyers, legislators, or judges, talking of husbands, we should infer that the word was used only in reference to men's legal relations to their wives. The word would be used in a technical sense in both cases.

So, if we were to hear a man called a Catholic priest, we should naturally infer that the word Catholic was used in its technical sense, that is, to describe a priest of the Catholic persuasion, and not a priest of a catholic, liberal, and tolerant spirit.

These examples might be multiplied indefinitely. But it will be seen from those already given that, so far from the technical sense and the common sense of words being opposed to each other, the technical sense is itself the common sense in which a word is used with reference to particular subjects.

These examples also show how perfectly natural, instead of unnatural, it is for us to attribute the technical meaning to a word, [*172]  whenever we are talking of a subject in relation to which that meaning is appropriate.

Almost every word of substantive importance, that is of frequent use in the law, is used in a technical sense  ‑‑  that is, in a sense having some special relation either to natural justice, or to men's rights or privileges under the laws.

The word liberty, for instance, has a technical meaning in the law. It means, not freedom from all restraint, or obligation; not a liberty to trespass with impunity upon other men's rights; but only that degree of liberty which, of natural right, belongs to a man; in other words, the greatest degree of liberty that he can exercise, without invading or immediately endangering the rights of others.

Unless nearly all words had a technical meaning in the law, it would be impossible to describe laws by words; because words have a great variety of meanings in common use; whereas the law demands certainty and precision. We must know the precise meaning of a word, before we can know what the law is. And the technical meaning of a word is nothing more than a precise meaning, that is appropriate, and commonly applied, to a particular subject, or class of subjects.

How would it be possible, for instance, to have laws against murder, unless the word murder, or some other word, were understood, in a technical sense, to describe that particular mode of killing which the law wishes to prohibit, and which is morally and legally distinguishable from all other modes of killing?

So indispensable are precision and certainty, as to the meaning of words used in laws, that where a word has not a technical meaning already known, the legislature frequently define the meaning they intend it shall bear in particular laws. Where this is not done, the courts have to give it a precise and definite meaning, before the law can be administered; and this precise meaning they have to conjecture, by reference to the context, and to the presumed object of all laws,  justice.

What perfect chaos would be introduced into all our existing laws and contracts, if the technical meanings of all the words used in them were obliterated from our minds. A very large portion of the laws and contracts themselves would be substantially abolished, because all certainty as to their meaning would be extinguished. Suppose, for instance, the technical meanings of liberty, trial by jury, habeas corpus, grand jury, petit jury, murder, rape [*173] arson, theft, indictment, trial, oath, testimony, witness, court, verdict, judgment, execution, debt, dollar, bushel, yard, foot, cord, acre, rod, pound, check, draft, order, administrator, executor, guardian, apprentice, copartner, company, husband, wife, marriage, lands, goods, real estate, personal estate, highway, citizen, alien, subject, and an almost indefinite number of other words, as they now stand in our laws and contracts, were at once erased from our minds, and the legal meanings of the same words could only be conjectured by the courts and people from the context, and such other circumstances as might afford grounds for conjecture. Suppose all this, and where would be our existing laws and contracts, and the rights dependent upon them? We might nearly as well throw our statute‑books, and all our deeds, notes, and other contracts, into the fire, as to strike out the technical meanings of the words in which they are written. Yet for the courts to disregard these technical meanings, is the same thing as to strike them out of existence.

If all our constitutions, state and national, were to be annulled at a blow, with all the statutes passed in pursuance of them, it would hardly create greater confusion as to men's rights, than would be created by striking out from men's minds all knowledge of the technical meanings of the words now used in writing laws and contracts. And the reconstruction of the governments, after such an abolition of them, would be a much less labor than the reconstruction of a legal language, in which laws and contracts 'could be written with the same conciseness and certainty as now. The former would be the work of years, the latter of centuries.

The foregoing considerations show in what ignorance and folly are founded the objections to the technical meanings of words used in the laws.

The real difference between the technical meaning of a word, and any other meaning, is just the difference between a meaning that is common, certain, and precise, and one that is, at best, less common, less certain, and less precise, and perhaps neither common, certain, nor precise.

The authorities in favor of the technical meaning, are given in the note, and are worthy of particular attention. fn43g [*174]

The argument, and the whole argument, so far as I know, in favor of what is called the common or popular meaning, is, that that meaning is supposed to be better known by the people, and therefore it is more probable they would use it, than the other. [*175]

But this argument, if not wholly false, is very shallow and frivolous; for everybody is presumed to know the‑laws, and therefore they are presumed to be familiar with the technical meanings of all the technical words that are of frequent use in writing the laws. [*176] And this presumption of law corresponds with the general fact. The mass of the people, who are not learned in the law, but who nevertheless have general ideas of legal matters, naturally understand the words of the laws in their legal senses, and attach their legal senses to them without being aware that the legal sense is a technical one. They have been in the habit of thinking that the technical meaning of words was something dark and recondite, (simply because some few technical terms are in another language than the English,) when in reality they themselves are continually using a great variety of words, indeed, almost all important words, in a technical or legal sense, whenever they are talking of legal matters.

But whether the advocates of slavery can, or cannot, reconcile themselves to the technical meaning of the word "free," they cannot, on their own construction of the constitution, avoid giving the word a precise and technical sense, to wit, as the correlative of slavery, as distinguished from all other forms of restraint and servitude. [*177]

The word slaves, if it had been used in the constitution, (instead bf the words "all other persons,") would have itself been held to be used in a technical sense, to wit, to designate those persons who were held as chattels, as distinguished from serfs, villeins, apprentices, servants for years, persons under twenty‑one years of age, prisoners of war, prisoners for debt, prisoners for crime, soldiers, sailors, &c., &c. The word slaves, then, being technical, the word free must necessarily have been taken in a technical sense, to wit, as the precise correlative of chattel slaves, and not as the correlative of persons held under any of these other forms of restraint or servitude. So that on the score of technicality, (even if that were an objection,) nothing would be gained by adopting the sense correlative with slaves.

But it is a wholly erroneous assumption that the use of the word "free," in a sense correlative with slaves, was either a common or popular use of the word. It was neither common nor popular, if we may judge of that time by the present; for now such a use of it is seldom or never heard, unless made with special reference to the classification which it is assumed that the constitution has established on that point.

The common and popular classification of the people of this country, with reference to slavery, is by the terms, white, free colored, and slaves. We do not describe anybody as free, except the free colored. The term white carries with it the idea of liberty; and it is nearly or quite universally used in describing the white people of the South, as distinguished from the slaves.

But it will be said by the advocates of slavery, that the term white was not used in the constitution, because it would not include all the free; that the term free was used in order to include both white and free colored. But this assertion is but another wholly gratuitous assumption of the facts, that there were to be slaves under the constitution, and that representation and taxation were to be based on the distinction between the slaves and the free; both of which points are to be proved, not assumed.

If there were to be slaves under the constitution, and if representation and taxation were to be based upon the distinction between the slaves and the free, then the constitution undoubtedly used the word free, instead of white, in order to include both the white and free colored in the class of units. But if, as we are bound to presume until the contrary is proved, there were to be no slaves under the constitution, or if representation and taxation were not founded [*178] on the distinction between them and the free, then the constitution did not use the word free for such a purpose. The burden is upon the advocates of slavery to prove, first, that there were to be slaves under the constitution, and, secondly, that representation and taxation were to be based on the distinction between them and the free, before they can say that the word free was used for the purpose of including the white and free colored.

Now the whole argument, or rather assertion, which the advocates of slavery can offer in support of these points, which they are necessitated to prove, is, that the word free is commonly and popularly used as the correlative of slaves. That argument, or assertion, is answered by the fact that the word free is not commonly or popularly used as the correlative of slaves; that the terms white and free colored are the common terms of distinction between the free and the slaves. Now these last named facts, and the argument resulting from them, are not met at all, by saying that if there were to be slaves, and if representation and taxation were to be based on the distinction between them and the free, the word free would then have been used, in preference to any other, in order to include the free colored in the same class with the whites.

It must first be proved that there were to be slaves under the constitution, and that representation and taxation were to be based on the distinction between them and the free, before it can be said that the word free was used in order to include both white and free colored. Those points not being proved, the allegation, founded on the assumption of them, is good for nothing.

The use of the word free, then, in a sense correlative with slavery, not being the common and popular use of the word at the time the constitution was adopted, all the argument, founded on that assumption, falls to the ground.

On the other hand, the use of the word free, in a political sense, as correlative either with aliens, or with persons not possessed of equal political privileges with others, was the universal meaning of the word, in all documents of a fundamental and constitutional character, up to the time when the constitution of the United States was adopted  ‑‑  (that is, when it was used, as it is in the United States constitution, to describe one person, as distinguished from another living under the same government.) Such was the meaning of the word in the colonial charters, in several of the State constitutions existing in 1789, and in the articles of confederation Furthermore, it was a term that had very recently been in common [*179] use in political discussions, and had thus been made perfectly familiar to the people. For example, the discussions immediately preceding the revolution, had all, or nearly all, turned upon the rights of the colonists, as "free British subjects." In fact, the political meaning of the word free as probably as familiar to the people of that day as the meaning of the word citizen is now; perhaps, indeed, more so, for there is some controversy as to the legal meaning of the word citizen. So that all the argument against the technical sense of the term, on the ground of its not being the common sense, is founded in sheer ignorance or fraud. fn43h

Finally; unless the word free be taken in the technical sense common at that day, it is wholly an unsettled matter what sense should be given to it, in the constitution. The advocates of slavery take it for granted that, if it be not taken in its common and technical sense, it must be taken in the sense correlative with slavery. But that is all gratuitous. There are many kinds of freedom besides freedom from chattel slavery; and many kinds of restraint besides chattel slavery; restraints, too, more legitimate in their nature, and better legitimated under the laws then existing, than slavery. And it may require a great deal more argument than some persons imagine, to settle the meaning of the word free, as used in the constitution, if its technical meaning be discarded.

I repeat, it is a wholly gratuitous assumption that, if the technical meaning of the word free be discarded, the sense correlative with slavery must be adopted. The word "free," in its common and popular sense, does not at all imply, as its correlative, either property in man, or even involuntary service or labor. It, therefore, does not imply slavery. It implies, as its correlative, simply restraint. It is, of itself, wholly indefinite as to the kind of restraint implied. It is used as the correlative of all kinds of restraint, imprisonment, compulsion, and disability, to which mankind are liable. Nothing, therefore, can be inferred from the word alone, as to the particular kind of restraint implied, in any case. It is indispensable to know the subject matter, about which the word is used, in order to know the kind of restraint implied. And [*180] ff the word had had no technical meaning appropriate to the subject matter of the constitution, and if no other part of the constitution had given us any light as to the sense of the word in the representative clause, we should have been obliged to conjecture its correlative. And slavery is one of the last correlatives that we should have been at liberty to adopt. In fact, we should have been obliged to let the implication remain inoperative for ambiguity, and to have counted all men as "free," (for reasons given under rule seventh,) rather than have adopted slavery as its correlative. 

FIFTH RULE.

A fifth rule of interpretation is, that the sense of every word, that is ambiguous in itself, must, if possible, be determined by reference to the rest of the instrument.

The importance of this rule will be seen, when it is considered that the only alternatives to it are, that we must go out of the instrument, and resort to conjecture, for the meaning of ambiguous words.

The rule is an universal one among courts, and the reasons of it are as follows:

Vattel says, "If he who has expressed himself in an obscure or equivocal manner, has spoken elsewhere more clearly on the same subject, he is the best interpreter of himself. We ought to interpret his obscure and vague expressions, in such a manner, that they may agree with those terms that are clear and without ambiguity, which he has used elsewhere, either in the same treaty, or in some other of the like kind. In fact, while we have no proof that a man has changed his mind, or manner of thinking, it is presumed that his thoughts have been the same on the same occasions; so that if he has anywhere clearly shown his intention, with respect to anything, we ought to give the same sense to what he has elsewhere said obscurely on the same affair."  ‑‑  B. 2, ch. 17, sec. 9‑84.

Also; "Frequently, in order to abridge, people express imperfectly, and with some obscurity, what they suppose is sufficiently elucidated by the things that preceded it, or even what they propose to explain afterwards; and, besides, the expressions have a force, and sometimes even an entirely different signification, according to the occasion, their connection, and their relation to other words. The connection and train of the discourse is also another source of interpretation. We ought to consider the whole discourse together, in order perfectly to conceive the sense of it, and to give to each expression, not so much the signification it may receive in [*181] itself, as that it ought to have from the thread and spirit of the discourse. This is the maxim of the Roman law: Incivile est, nist tota lege perspecta una aliqua particula ejus proposita, judicare, vel respondere." (It is improper to judge of, or answer to, any one thing proposed in a law, unless the whole law be thoroughly examined.)   ‑‑   Same, sec. 285.

Also; "The connection and relation of things themselves, serve also to discover and establish the true sense of a treaty, or of any other piece. The interpretation ought to be made in such a manner, that all the parts appear consonant to each other; that what follows agree with what went before; at least, if it does not manifestly appear, that by the last clauses, something is changed that went before. For it is presumed that the authors of the treaty have had an uniform and steady train of thought; that they did not desire things which ill agreed with each other, or contradictions; bat rather that they have intended to explain one thing by another; and, in a word, that one and the same spirit reigns throughout the same work, or the same treaty."  ‑‑   Same, sec. 286.

The Sup. Court of Mass. says, "When the meaning, of any particular section or clause of a statute is questioned, it is proper to look into the other parts of the statute; otherwise, the different sections of the same statute might be so construed as to be repugnant."  ‑‑  1 Pickering, 250.

Coke says, "It is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute."  ‑‑   Co. Lit., 381, b.

The foregoing citations indicate the absolute necessity of the rule, to preserve any kind of coherence or congruity between the different parts of an instrument.

If we were to go out of an instrument, instead of going to other parts of it, to find the meaning of every ambiguous word, we should be liable to involve the whole instrument in all manner of incongruities, contradictions, and absurdities. There are hardly three consecutive lines, of any legal instrument whatever, the sense of which can be understood without reference to other parts of the instrument.

To go out of an instrument, instead of going to other parts of it, to find the sense of an ambiguous word, is also equivalent to saying that the instrument itself is incomplete.

 Apply this rule, then, to the word "free" and the words "all other persons." The sense of these words being ambiguous in themselves, the rest of the instrument must be examined to find the persons who may properly be denominated "free persons,"  and "all other persons." In making this examination, we shall [*182] find no classes mentioned answering to these descriptions, but the native and naturalized persons on the one hand, and those not naturalized on the other.  

SIXTH RULE.

A sixth rule of interpretation, and a very important, inflexible, and universal one, applicable to contracts, is, that a contract must never, if it be possible to avoid it, be so construed, as that any one of the parties to it, assuming him to understand his rights, and to be of competent mental capacity to make obligatory fn43i contracts, may not reasonably be presumed to have consented to it.

If, for instance, two men were to form a copartnership in business, their contract, if its language will admit of any other possible construction, must not be so construed as to make it an agreement that one of the partners shall be the slave of the other; because such a contract would be unnatural, unreasonable, and would imply that the party who agreed to be a slave was incompetent to make a reasonable, and therefore obligatory, contract. fn43j

This principle applies to the constitution of the United States, and to all other constitutions that purport to be established by "the people ;" for such constitutions are, in theory, hut contracts of the people with each other, entered into by them severally for their individual security and benefit. It also applies equally to all statutes made in pursuance of such constitutions, because the statutes derive their authority from the constitutional consent or contract of the people that such statutes may be enacted and enforced. The authority of the statutes, therefore, as much rests on contract, as does the authority of the constitutions themselves. To deny that constitutions and statutes derive their authority from contract, is to found the government on arbitrary power.

By the rule laid down, these statutes and constitutions, therefore, must not be construed, (unless such construction be unavoidable,) so as to authorize anything whatever to which every single individual of "the people" may not, as competent men, knowing [*183] their rights, reasonably be presumed to have freely and voluntarily assented.

Now the parties to the contract expressed in the constitution of the United States, are "the people of the United States," that is, the whole people of the United States. The description given of the parties to the constitution, as much includes those "people of the United States" who were at the time treated as slaves, as those who were not. The adoption of the constitution was not, in theory, the exercise of a right granted to the people by the State legislatures, but of the natural original right of the people themselves, as individuals. (This is the doctrine of the supreme court, as will presently appear.) The slaves had the same natural competency and right to establish, or consent to, government, that others had; and they must be presumed to have consented to it equally with others, if the language of the constitution implies it. We certainly cannot go out of the constitution to find the parties to it. And the constitution affords no legal ground whatever for separating the then "people of the United States" into two classes, and saying that one class were parties to the constitutional contract, and that the other class were not. There would be just as much reason in saying that the terms "the people" used in the constitutions of Massachusetts, Maine, New Hampshire, and Vermont, to describe the parties to those constitutions, do not include all "the people" of those States, as there is for saying that all "the people of the United States" are not included in the constitutional description of them, and are not, therefore, parties to the constitution of the United States.

We are obliged to take this term, "the people," in its broadest sense, unless the instrument itself have clearly and palpably imposed some restriction upon it.

It is a universal rule of courts, that where justice will be promoted by taking a word in the most comprehensive sense in which it can be taken consistently with the rest of the instrument, it must be taken in that sense, in order that as much justice as possible may be accomplished. On the other hand, where a word is unfavorable to justice, it must be taken in its most restricted sense, in order that as little injustice as possible may be accomplished. fn43k [*184]

In conformity with this rule, the words, "the people of' the United States," would have to be taken in their most extensive sense, even though they stood but on an equal ground with other words in the instrument. But, in fact, they stand on privileged ground. Their meaning is to be determined before we proceed to the interpretation of the rest of the instrument. The first thing to be ascertained, in regard to an instrument, always is, who are the parties to it; for upon that fact may depend very many important things in the construction of the rest of the instrument. In short, the body of the instrument is to be interpreted with reference to the parties, and not the parties conjectured by reference to the body of the instrument. We must first take the instrument's own, declaration as to who the parties are; and then, if possible, make the body of the instrument express such, and only such, intentions, as all the parties named may reasonably be presumed to have agreed to.

Assuming, then, that all the people of the United States" are parties to the constitutional contract, it is manifest, that it cannot reasonably be presumed that any, even the smallest, portion of them, knowing their natural rights, and being competent to make a reasonable contract of government, would consent to a constitution that should either make them slaves, or assist in keeping them in slavery. Such a construction, therefore, must not be put upon the contract, if the language admits of any other. This rule alone, then, is sufficient to forbid a construction sanctioning slavery.

It may, perhaps, be argued that the slaves were not parties to the constitution, inasmuch as they never, in fact, consented to it. But this reasoning would disfranchise half the population; for there is not a single constitution in the country  ‑‑  state, or national  ‑‑  into which one half of the people who are, the theory, parties to it, ever, in fact and in forms, agreed. Voting for and under a constitution, are almost the only acts that can, with any reason at all, be considered a formal assent to a constitution. Yet a bare majority [*185] the adult males, or about one tenth of the whole people, is the largest number of "the people" that has ever been considered necessary, in this country, to establish a constitution. And after it is established, only about one fifth of the people are allowed to vote under it, even where suffrage is most extended. So that no formal assent to a constitution is ever given by the people at large. Yet the constitutions themselves assume, and virtually assert, that all "the people" have agreed to them. They must, therefore, be construed on the theory that all have agreed to them, else the instruments themselves are at once denied, and, of course, invalidated altogether. No one, then, who upholds the validity of the constitution, can deny its own assertion, that all "the people'' are parties to it. Besides, no one, unless it be the particular individuals who have not consented, can take advantage of the fact that they have not consented.

And, in practice, we do not allow even such individuals to take advantage of the fact of their non‑consent, to avoid the burdens imposed by the instrument; and not allowing the individuals themselves to take advantage of it for that purpose, no other person, certainly, can be allowed to take advantage of it to shut them out from its protection and benefits.

The consent, then, of "the people" at large is presumed, whether they ever have really consented, or not. Their consent is presumed only on the assumption that the rights of citizenship are valuable and beneficial to them, and that if they understood that fact, they would willingly give their consent in form. Now, the slaves, if they understood that the legal effect of their consenting to the constitution would be "to secure the blessings of liberty to themselves and their posterity," would doubtless all be as ready to give their actual assent to it, as any other portion of "the people" can be. Inasmuch, then, as such would be the legal effect of their consent, there is no other class of "the people of the United States," whose consent to the constitution may, with so much reason, be presumed; because no other class have so much to gain by consenting to it. And since the consent of all is presumed, solely on the ground that the instrument is beneficial to them, regardless of their actual assent, there is no ground for excluding, or for not presuming, the consent of those, whose consent, on account of its beneficial operation upon their interests and rights, can be most reasonably and safely presumed.

But it may, perhaps, be said that it cannot reasonably be pre‑ [*186] sumed that the slaveholders would agree to a constitution, which would destroy their right to their slave property.

One answer to this argument is, that the slaveholders had, at the time, no legal or constitutional right to their slaves, under their S