UNCONSTITUTIONALITY OF SLAVERY

CHAPTER XVIII.

SERVANTS COUNTED AS UNITS.

THE constitution (Art. 1, Sec. 2) requires that the popular basis of representation and taxation be made up as follows, to wit:

"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."

If the word free, in this clause, be used as the correlative of slaves, and the words "all other persons" mean slaves, the words "including those bound to service for a term of years" are sheer surplusage, having no legal force or effect whatever; for the persons described by them would of course have been counted with the free persons, without the provision. If the word free were used as the correlative of slaves at al!, it was used as the correlative of slaves alone, and not also of servants for a term of years, nor of prisoners, nor of minors under the control of their parents, nor of persons under any other kind of restraint whatever, than the simple one of chattel slavery. fn63

It was, therefore, wholly needless to say that "persons bound to service for a term of years" should not be counted in the class with slaves, for nobody, who understood the word free as the correlative of slaves, would have imagined that servants for a term of years were to be included in the class with slaves. There would have been nearly or quite as much reason in saying that minors under the control of their parents, persons under guardianship, prisoners for debt, prisoners for crime, &c., should not be counted in the class with slaves, as there was in saying that servants for a term of years should not be counted in that class. In fact, the whole effect of the provision, if it have any, on the slave hypothesis, is to imply that all other persons under restraint, except [*238] "those bound to service for a term of years," shall be counted in the class with slaves; because an exception of particular persons strengthens the rule against all persons not excepted. So that, on the slave hypothesis, the provision would not only be unnecessary in favor of the persons it describes, but it would even be dangerous in its implications against persons not included in it.

But we are not allowed to consider these words even as surplusage, if any reasonable and legal effect can be given them. And under the alien hypothesis they have such an effect.

Of the "persons bound to service for a term of years" in those days, large numbers were aliens, who, but for this provision, would be counted in the three fifths class. There was, nevertheless, a sound reason why they should be distinguished from other aliens, and be counted as units, and that was, that they were bound to the country for a term of years as laborers, and could not, like other aliens, be considered either a transient, unproductive, or uncertain population. Their being bound to the country for a term of years as laborers, was, to all practical purposes, equivalent to naturalization; for there was little or no prospect that such persons would ever leave the country afterwards, or that, during their service, they would recognize the obligations of any foreign allegiance.

On the alien hypothesis, then, the words have an effect, and a reasonable one. On the slave hypothesis, they either have no effect at all, or one adverse to all persons whatsoever that are under any kind of restraint, except servants for a term of years.