TEXT NOTES
1. [*8] It is obvious that legislation can
have, in this country, no higher or other authority, than that which results
from natural law, and the obligation of contracts; for our constitutions are
but contracts, and the legislation they authorize can of course have no other
or higher authority than the constitutions themselves. The stream cannot rise
higher than the fountain. The idea, therefore, of any inherent authority
or sovereignty in our governments, as governments, or of any inherent
right in the majority to restrain individuals, by arbitrary enactments, from
the exercise of any of their natural rights, is as sheer an imposture as the
idea of the divine right of kings to reign, or any other of the doctrines on
which arbitrary governments have been founded. And the idea of any necessary or
inherent authority in legislation, as such, is, of course, equally an
imposture. If legislation be consistent with natural justice, and the natural
or intrinsic obligation of the contract of government it is obligatory: if not,
not. Return
2. [*15] The mass of men are so much
accustomed to regard law as an arbitrary command of those who administer
political power, that the idea of its being a natural, fixed, and immutable
principle, may perhaps want some other support than that of the reasoning
already given, to commend it to their adoption. I therefore give them the following corroborations from
sources of the highest authority.
"Jurisprudence
is the science of what is just and unjust." ‑‑‑ Justinian.
"The
primary and principal objects of the law are rights and wrongs." -- Blackstone.
"Justice
is the constant and perpetual disposition to render to every man his due."
-- Justinian.
"The
precepts of the law are to live honestly; to hurt no one; to give to every one
his due."--Justinian &
Blackstone.
"LAW.
The rule and bond of men's actions; or it is a rule for the well governing of
civil society, to give to every man that which doth belong to him."-- Jacob's
Law Dictionary.
"Laws
are arbitrary or positive, and natural; the last of which are essentially just
and good, and bind everywhere, and in all places where they are observed. * * *
* Those which are natural laws, are from God; but those which are arbitrary, are properly
human and positive institutions."--Selden on Fortesque, C. 17, also Jacob's Law Dictionary.
"The
law of nature is that which God, at man's creation, infused into him, for Ins
preservation and direction; and this is an eternal law, and may not be
changed."—2 Shep. Abr. 356, also Jacob's Law Dictionary.
[*16]
"All laws derive their force from the law of nature; and those which do
not, are accounted as no laws." Fortesque, Jac. Law Dict.
"No
law will make a construction to do wrong; and there are some things which the
law favors, and some it dislikes; it favoreth those things that come from the
order of nature."-- 1 Inst. 183, 197. ‑‑‑ Jac.
Law Dict.
"Of
law no less can be acknowledged, than that her seat is the bosom of God, her
voice the harmony of the world. All things in heaven and earth do her homage;
the ]east as feeling her care, and the greatest as not exempted from her
power." ‑‑ Hooker.
Blackstone speaks of law as "A science, which
distinguishes the criterions of right and wrong; which teaches to establish the
one, and prevent, punish or redress the other; which employs in its theory the
noblest faculties of the soul, and exerts in its practice the cardinal virtues
of the heart; a science, which is universal in its use and extent, accommodated
to each individual, yet comprehending the whole community." ‑‑‑ Blackstone's
Lecture on the Study of the Law.
"This
law of nature being coeval with mankind, and dictated by God himself, is of
course superior in obligation to any other. It is binding over all the globe,
in all countries, and at all times: no human laws are of any validity, if
contrary to this; and such of them as are valid, derive all their force, and
all their authority mediately or immediately, from this
original." ‑‑‑ Blackstone, Vol.
I, p. 41.
Mr.
Christian, one of Blackstone's editors, in a note to the above passage, says:
"Lord
Chief Justice Hobart has also advanced, that even an act of Parliament made
against natural justice, as to make a man judge in his own cause, is void in
itself, for jura naturae sunt immutabilia, and they are leges legum" ‑‑ (the
laws of nature are immutable ‑‑ they are the
laws of laws.) ‑‑ Hob. 87.
Mr.
Christian then adds:
"With
deference to these high authorities, (Blackstone and Hobart,) I should conceive
that in no case whatever can a judge oppose his own opinion and authority to
the clear will and declaration of the legislature. His province is to interpret
and obey the mandates of the supreme Power of the state. And if an act of
Parliament, if' we could suppose such a case, should, like the edict of Herod,
command all the children under a certain age to be slain, the judge ought to
resign his office rather than be auxiliary to its execution; but it could only
be declared void by the same legislative Power by which it was ordained. If the
judicial power were competent to decide that an act of parliament was void
because it was contrary to natural in slice, upon an appeal to the House of
Lords this inconsistency would be the consequence, that as judges they must
declare void, what as legislators they had enacted should be valid.
"The
learned judge himself (Blackstone) declares in p. 91, if the Parliament will
positively enact a thing to be done which is unreasonable, I know of no power
in the ordinary forms of the constitution, that is vested with authority to
control it."
It will be
seen from this note of Mr. Christian, that he concurs in the opinion that an
enactment contrary to natural justice is intrinsically void, and not
law; and that the principal, if not the only difficulty, which he sees in
carrying out that doctrine, is one that is peculiar to the British
constitution, and does not exist in the United States. That difficulty is, the
"inconsistency" there would be, if the House of Lords, (which is the
highest law court in England, and at the same time one branch of the
legislature,) were to declare, in their capacity as judges, that an act was
void, which, as legislators, they had declared should be valid. And this is
probably the [*17] reason why Blackstone admitted that he knew of no power in
the ordinary forms of the (British) constitution, that was vested with
authority to control an act of Parliament that was unreasonable, (against
natural justice.) But in the United States, where the judicial and legislative
powers are vested in different bodies, and where they are so vested for the
very purpose of having the former act as a check upon the latter, no such
inconsistency would occur.
The
constitutions that have been established in the United States, and the
discussions had on the formation of them, all attest the importance which our
ancestors attached to a separation of the judicial, from the executive and
legislative departments of the government. And yet the benefits, which they had
promised to liberty and justice from this separation, have in slight only, if
any degree, been realized.-Although the legislation of the country generally
has exhibited little less than an entire recklessness both of natural justice
and constitutional authority, the records of the judiciary nevertheless furnish
hardly an instance where an act of a legislature has, for either of these
reasons, been declared void by its co-ordinate judicial department. There have
been cases, few and far between, in which the United States courts have declared
acts of state legislatures unconstitutional. But the history of the co-ordinate
departments of the same governments has been that the judicial sanction
followed the legislative act with nearly the same unerring certainty, that the
shadow follows the substance. Judicial decisions have consequently had the same
effects in restraining the actions of legislatures, that shadows have m
restraining the motions of bodies.
Why this
uniform concurrence of the judiciary with the legislature? It is because the
separation between them is nominal, not real. The judiciary receive their
offices and salaries at the hands of the executive and the legislature, and are
amenable only to the legislature for their official character. They are made
entirely independent of the people at large, (whose highest interests are
liberty and justice,) and entirely dependent upon those who have-too many
interests inconsistent with liberty and justice. Could a real and entire
separation of the judiciary from the other departments take place, we might
then hope that their decisions would, in some measure, restrain the usurpations
of the legislature, and promote progress in the science of law and of
government.
Whether
any of our present judges would, (ns Mr. Christian suggests they ought,)
"resign their offices" rather than be auxiliary to the execution of
an act of legislation, that, like the edict of Herod, should require all the
children under a certain age to be slain, we cannot certainly know. But this we
do know -- that our judges have hitherto manifested no intention of resigning
their offices to avoid declaring it to be law, that "children of two years
old and under," may be wrested forever from that parental protection which
is their birthright, and subjected for life to outrages which all civilized men
must regard as worse than death. To proceed with our authorities: --
"Those
human laws that annex a punishment to murder, do not at all increase its moral
guilt, or superadd any fresh obligation in the forum of conscience to abstain
from its perpetration. Nay, if any human law should allow or enjoin us to
commit it, we are bound to transgress that human law, or else we must offend
both the natural and the divine." ‑‑‑ Blackstone,
Vol. 1, p. 42, 43.
"The
law of nations depends entirely upon the rules of natural law, or upon
mutual compacts, treaties, leagues and agreements between these several
communities; in the construction also of which compacts, we have no other rule
to resort to, [*18] but the law of nature: (that) being the only one to which
all the communities are equally subject." ‑‑‑ Blackstone,
Vol. 1, p. 43.
"Those
rights then which God and nature have established, and are therefore called
natural rights, such as are life and liberty, need not the aid of human laws to
he more effectually invested in every man than they are; neither do they
receive any additional strength when declared by the municipal laws to be
inviolable. On the contrary, no human legislature has power to abridge or
destroy them, unless the owner shall himself commit some act that amounts to a
forfeiture." ‑‑‑ Blackstone,
Vol. l, p. 54.
"By
the absolute rights of individuals, we mean those which are so in their primary
and strictest sense; such as would belong to their persons merely in a state of
nature, and which every man is entitled to enjoy, whether out of society, or in
it." ‑‑‑ Blackstone, Vol.
1, p. 123.
"The
principal aim of society (government) is to protect individuals in the
enjoyment of those absolute rights, which were vested in them by the immutable
laws of nature; but which could not be preserved in peace without that mutual
assistance and intercourse, which is gained by the institution of friendly and
social communities. Hence it follows, that the first and primary end of human
laws is to maintain and regulate these absolute rights of individuals. Such
rights as are social and relative result from, and are posterior to, the
formation of states and societies; so that to maintain and regulate these, is
clearly a subsequent consideration. And therefore the principal view of human
law is, or ought always to be, to explain, protect, and enforce such rights as
are absolute; which, in themselves, are few and simple: and then such rights as
are relative, which, arising from a variety of connexions, will be far more
numerous and more complicated. These will take up a greater space in any code
of laws, and hence may appear to be more attended to, though in reality they
are not, than the rights of the former kind." ‑‑‑ Blackstone,
Vol. 1,p. 124.
"The absolute
rights of man, considered as a free agent, endowed with discernment to know
good from evil, and with power of choosing those measures which appear to him
most desirable, are usually summed up in one general appellation, and
denominated the natural liberty of mankind. This natural liberty consists
properly in a power of acting as one thinks fit, without any restraint or
control, unless by the law of nature, being a right inherent in us by birth,
and one of the gifts of God to man at his creation, when he endowed him with
the faculty of free will." ‑‑‑ Blackstone,
Vol. 1, p. 125.
"Moral
or natural liberty, (in the words of Burlamaqui, ch. 3, s. 15,) is the right,
which nature gives to all mankind of disposing of their persons and property
after the manner they judge most consonant to their happiness, on condition of
their acting within the limits of the law of nature, and that they do not any
way abuse it to the prejudice of any other men." -- Christian's note,
Blackstone, Vol. 1, p. 126.
"The
law of Nature is antecedent and paramount to all human governments. * * * Every
individual of the human race comes into the world with rights, which, If the
whole aggregate of human power were concentrated in one arm, it could not take
away. * * * The Declaration of Independence recognizes no despotism,
monarchical, aristocratic, or democratic. It declares that individual man is
possessed of rights of which no government can deprive him." ‑‑‑ John
Quincy Adams.
All the
foregoing definitions of law, rights and natural liberty, although some of them
are expressed in somewhat vague and indefinite terms, nevertheless recognize he
primary idea, that law is a fixed principle, resulting from men's natural
rights; [*19] and that therefore the acknowledgment and security of the natural
rights of individuals constitute the whole basis of law as a science, and a sine
qua non of government as a legitimate institution.
And yet writers generally, who acknowledge the true
theory of government and law, will nevertheless, when discussing matters of
legislation, violate continually the fundamental principles with which they set
out. On some pretext of promoting a great public good, the violation of
individual rights will he justified in particular cases; and the guardian
principle being once broken down, nothing can then stay the irruption of the
whole horde of pretexts for doing injustice; and government and legislation
thenceforth become contests between factions for power and plunder, instead of
instruments for the preservation of liberty and justice equally to all.
The
current doctrine that private rights must yield to the public good, amounts, in
reality, to nothing more nor less than this, that an individual or the minority
must consent to have less than their rights, in order that other individuals,
or the majority, may have more than their rights. On this principle no honest
government could ever be formed by voluntary contract, (as our governments
purport to be ;) because no man of common sense would consent to be one of the plundered
minority, and no honest man could wish to be one of the plundering majority.
The
apology., that is constantly put forth for the injustice of government, viz.,
that a man must consent to give up some of his rights, in order to have his
other rights protected--involves a palpable absurdity, both legally and
politically. It is an absurdity in law, because it says that the law must be
violated in some cases, in order that it may be maintained in others. It is an
absurdity politically, because a man's giving up one of his rights has no
tendency whatever to promote the protection of others. On the contrary, it only
renders him less capable of defending himself, and consequently makes the task
of his protection more burdensome to the government. At the same time it places
him in the situation of one who has conceded a part of his rights, and thus
cheapened the character of all his rights in the eyes of those of whom he asks
assistance. There would be as much reason in saying that a marl must consent to
have one of his hands tied behind him, in order that his friends might protect
the rest of his body against an enemy, as there is in saying that a man must
give up some of his rights in order that government may protect the remainder.
Let a man have the use of both of his hands, and the enjoyment of all his
rights, and he will then be more competent to his own defence; his rights will
be more respected by those who might otherwise be disposed to invade them; he
will want less the assistance and protection of others; and we shall need much
less government than we now have.
If
individuals choose to form an association or government, for the mutual
protection of each other's rights, why bargain for the protection of an
indefinite portion of them, at the price of giving to the association itself
liberty to violate the equally indefinite remainder? By such a contract, a man
really surrenders everything, and secures nothing. Such a contract of
government would be a burlesque on the wisdom of asses. Such a contract never
was, nor ever will be voluntarily formed. Yet all our governments act on
that principle; and so far as they act upon it, they are as essentially
usurping and tyrannical as any governments can be. If a man pay his proportion
of the aggregate cost of protecting all the rights of each of the [*20] members
of the association, he thereby acquires a claim upon the association to have
his own rights protected without diminution.
The ultimate truth on this subject is, that man has an inalienable
right to so much personal liberty as he will use without invading the rights of
others. This liberty is an inherent right of his nature and his faculties. It
is an inherent right of his nature and his faculties to develope themselves
freely, and without restraint from other natures and faculties, that have no
superior prerogatives to his own. And this right has only this limit, viz.,
that he do not carry the exercise of his own liberty so far as to restrain or
infringe the equally free development of the natures and faculties of others.
The dividing line between the equal liberties of each must never be
transgressed by either. This principle is the foundation and essence of law and
of civil right. And legitimate government is formed by the voluntary
association of individuals, for the mutual protection of each of them in the
enjoyment of this natural liberty, against those who may be disposed to invade
it. Each individual being secured in the enjoyment of this liberty, must then
take the responsibility of his own happiness and well-being. If his necessities
require more than his faculties will supply, he must depend upon the voluntary
kindness of his fellow-men; unless he be reduced to that extremity where the
necessity of self-preservation over-rides all abstract rules of conduct, and
makes a law for the occasion ‑‑‑ an
extremity, that would probably never occur but for some antecedent in justice. Return
3. [*19] United States vs. Fisher, 2
Cranch, 390 Return
4. [*21] The second charter to
Virginia (1609) grants the power of making "orders, ordinances,
constitutions, directions and instructions," "so always as the said
statutes, ordinances and proceedings, as near as conveniently may be, be
agreeable to the laws, statutes, government and policy of this our realm of
England."
The third
charter (1611 -- 12) gave to the "General Court" "power and
authority'' to "make laws and ordinances" "so always as the same
be not contrary to the laws and statutes of our realm of England."
The first
charter to Carolina, (including both North and South Carolina,) dated 1663,
authorized the making of laws under this proviso--" Provided nevertheless,
that the said laws be consonant to reason, and as near as may be conveniently:
agreeable to the laws and customs of this our kingdom of England."
The second
charter (1665) has this proviso. "Provided nevertheless, that the said
laws he consonant to reason, and as near as may be conveniently, agreeable to
the laws and customs of this our realm of England."
The
charter to Georgia, (1732,) an hundred years after slavery had actually existed
in Virginia, makes no mention of slavery, but requires the laws to be
"reasonable and not repugnant to the laws of this our realm?' "The
said corporation shall and may form and prepare laws, statutes and ordinances
fit and necessary for and concerning the government of the said colony, and not
repugnant to the laws and statutes of England."
The
charter to Maryland gave the power of making laws, "So, nevertheless, that
the laws aforesaid be consonant to reason, and be not repugnant or contrary,
but (so far as conveniently may he,) agreeable to the laws, statutes, customs,
and rights of this our kingdom of England." [*22]
The
charter granted to Sir Edward Plowden had this proviso. "So, nevertheless,
that the laws aforesaid be consonant to reason, and not repugnant and contrary,
(but as convenient as may be to the matter in question,) to the laws, statutes,
customs and rights of oar kingdoms of England and Ireland."
In the
charter to Pennsylvania, power was granted to make laws, and the people were
required to obey them, "Provided nevertheless that the said laws be
consonant to reason, and be not repugnant or contrary, but, as near as
conveniently may be, agreeable to the laws, statutes, and rights of this our
kingdom of England."
I have not
been able to find a copy of the charter granted to the Duke of York, of the
territory comprising New York, New Jersey, &c. But Gordon, in his history
of the American Revolution, (vol. 1, p. 43,) says, "The King's grant to
the Duke of York, is plainly restrictive to the laws and government of
England."
The
charter to Connecticut gave power "Also from time to time, to make, ordain
and establish all manner of wholesome and reasonable laws, statutes,
ordinances, directions and instructions, not contrary to the laws of this realm
of England."
The
charter to the Massachusetts Bay Colony, (granted by William and Mary',) gave
"full power and authority, from time to time, to make, ordain and
establish all manner of wholesome and reasonable orders, laws, statutes and
ordinances, directions and instructions, either with penalties or without, so
as the same be ant repugnant or contrary to the laws of this oar realm of
England."
The
charter to Rhode Island granted the power of making laws, "So as such
laws, ordinances, constitutions, so made, be not contrary and repugnant unto,
but (as near as may be) agreeable to the laws of this our realm of England,
considering the nature and constitution of the place and people there."
Several other charters, patents, &c., that had a temporary
existence, might be named, that contained substantially the same
provision. Return
5. [*22] In the case of the town of
Pawlet v. Clarke and others, the court say ‑‑‑
'' Let us
now see how far these principles were applicable to New Hampshire, at the time
of issuing the charter to Pawlet.
"New
Hampshire was originally erected into a royal province in the thirty-first year
of Charles II., and from thence until the revolution continued a royal
province, under the immediate control and direction of the crown. By the first
royal commission granted in 31 Charles II., among other things, judicial
powers, in all actions, were granted to the provincial governor and council,
'So always that the form of proceeding in such cases, and the judgment thereupon
to be given, be as consonant and agreeable to the laws and statures of this our
realm of England, as the present state and condition of our subjects inhabiting
within the limits aforesaid (i. e. of the province) and the circumstances of
the place will admit.' Independent,
however, of such a provision, we take it to be a clear principle that the
common law in force at the emigration of our ancestors, is deemed the
birthright of the colonies, unless so far as it is inapplicable to their
situation, or repugnant to their other rights and privileges. A fortiori
the principle applies to a royal province." ‑‑‑ (9
Cranch's U. States' Reports, 332 - 3.) Return
6. [*23] Somerset v.
Stewart.--Lofft's Reports, p. 1 to 19, of Easter Term, 1772. In the Dublin
edition, the case is not entered in the Index. Return
7. [*24] Have Parliament the
constitutional prerogative o£ abolishing the writ of habeas corpus? the
trial by jury? or the freedom of speech and the press? If not, have they the
prerogative of abolishing a man’s right of property in his own person? Return
8. [*25] Mr. Bancroft, in the third
volume of his history, (pp. 413-14,) says:
"And
the statute book of England soon declared the opinion of its king and its
Parliament, that ' the trade,'" (by which he means the slave trade,
of which he is writing,) "' is highly beneficial and advantageous to the
kingdom and the colonies.'" To prove this he refers to statute of
"1695, 8 and 10 Wm. 3, ch. 26?' (should be 1697, 8-9 and 10 Wm. 3, ch.
26.)
Now the
truth is that; although this statute may have been, and very probably was
designed to insinuate to the slave traders the personal approbation of
Parliament to the slave trade, yet the statute itself says not a word of
slaves, slavery, or the slave trade, except to forbid, under penalty of five
hundred pounds, any governor, deputy-governor or judge, in the colonies or
plantations in America, or any other Person or persons, for the use or on the
behalf of such governor, deputy-governor or judges, to be "a factor or
factor's agent or agents" "for the sale or disposal of any
negroes?"
The
statute does not declare, as Mr. Bancroft asserts, that "the (slave) trade
is l*26] highly beneficial and advantageous to the kingdom and the colonies
;" but that "the trade to Africa is highly beneficial and advantageous,"
&c. It is all in. fetches of Mr. Bancroft’s that "the trade to
Africa" was the slave trade. Even this inference is not justified
by the words of' the statute, considering them in that legal view, in which Mr.
Bancroft's remarks purport to consider them.
It is true
that the statute assumes that "negroes" will he
"imported" from Africa into "England," (where of course
they were not slaves,) and into the "plantations and colonies in
America." But it nowhere calls these "negroes" slaves,
nor assumes that they are slaves. For aught that appears from the statute, they
were free men and passengers, voluntary emigrants, going to "England"
and "the plantations and colonies" as laborers, as such persons are
now going to the British West Indies.
The
statute, although it apparently desires to insinuate or faintly imply that they
are property, or slaves, nevertheless studiously avoids to acknowledge them as
such distinctly, or even by any necessary implication; for it exempts them from
duties as merchandize, and from forfeiture for violation of revenue laws, and
it also relieves the masters of vessels from any obligation to render any
account of them at the custom houses.
When it is
considered that slavery, property in man, can be legalized, according to the decision
of Lord Mansfield, by nothing less than positive law; that the rights of
property and person are the same on board an English ship, as in the island of
Great Britain; and that this statute implies that these "negroes"
were to be" imported'' into "England," as well as into the
"plantations and colonies in America, " and. that it therefore no
more implies that they were to be slaves in "the plantations and
colonies" than in "England," where we know they could not be
slaves; when these things are considered, it is perfectly clear, as a legal
proposition, that the statute legalized neither slavery in the plantations and
colonies, nor the slave trade from Africa to America ‑‑‑ however
we may suppose it to have been designed to hint a personal approbation, on the
part of Parliament, of the actual traffic.
But lest I
may be suspected of having either misrepresented the words of the statute, or
placed upon them au erroneous legal construction, I give all the words
of the statute, that make any mention of "negroes," or their
importation, with so much of the context as will enable the reader to judge for
himself of the legal import of the whole.
The act is
entitled, "An Act to settle the Trade to Africa." Sec. l,
recites as follows: ‑‑‑
"Whereas,
the Trade to Africa is highly beneficial and advantageous to this kingdom and
to the Plantations and Colonies thereunto belonging."
The act
contains twenty-one sections, regulating trade, duties, &c. like any
other navigation act. "Negroes" are mentioned only in the following
instances and connexions, to wit:
See. 7.
"And be it enacted by the authority aforesaid, That from and after the
four-and-twentieth day of June, one thousand six hundred ninety-and-eight, it
shall and may be lawful to and for any of the subjects of his majesty's realms
of England, as well as the said Company, [* The Royal African Company] to trade from England or any of his
majesty's plantations or colonies in America to the coast of Africa, between
Blanco and Cape Mount, answering and paying a duty of ten pounds per centum ad
valorem for the goods and merchandises to he exported from England or any of
his majesty's plan- [*27] tations or colonies in America to and for the coast
of Africa, between Cape Blanco and Cape Mount, and in proportion for a greater
or lesser value, and answering and paying a further sum and duty of ten pounds
per centum ad valorem, red wood only excepted, which is to pay five pounds per
centum ad valorem, at the place of importation upon all goods and merchandize
(negroes excepted) imported in (into) England or any of his majesty's
plantations or colonies in America, from the coast of Africa, between Cape
Blanco and Cape Mount aforesaid. * * * Ann that all goods and merchandize,
(negroes excepted,) that shall be laded or put on bourn any ship or vessel on
the coast of Africa, between Cape Blanco and Cape Mount, and shall be imported
into England or into any of his majesty's plantations or colonies aforesaid,
shall answer and pay the duties aforesaid, and that the master or chief officer
of every such ship or vessel that shall lade or receive any goods or
merchandize (negroes excepted) on board of his or their ship or vessel between
Cape Blanco and Cape Mount, shall upon making entry at any of his majesty's
custom houses aforesaid of the said ship or vessel, or before any goods or
merchandize be landed or taken out of the said ship or vessel (negroes
excepted) shall deliver in a manifest or particular of his cargo, and take the
following oath, viz.
"I,
A. B., do swear that the manifest or particular now by me given in and signed,
to the best of my knowledge and belief doth contain, signify and express all
the goods, wares and merchandizes, (negroes excepted,) which were laden or put
on board the ship called the ‑‑‑‑‑‑‑‑‑‑‑‑‑‑,
during her stay and continuing on the coast of Africa between Cape Blanco and
Cape Mount, whereof I, A. B., am master."
Sec. 8.
"And that the owner or importer of all goods and merchandize (negroes
excepted) which shall he brought to England or any of his majesty's plantations
from any port of Africa between Cape Blanco sod Cape Mount aforesaid shall make
entry of all such goods and merchandize at one of his majesty's chief custom
houses in England, or in such of his majesty's plantations where the same shall
be imported," &c.
See. 9. *
* * "that all goods or merchandizes (negroes excepted) which shall be
brought from any part of Africa, between Cape Blanco and Cape Mount aforesaid,
which shall he unladed or landed before entry made and signed and oath of the
true and real value thereof made and the duty paid as aforesaid shall be
forfeited, or the value thereof."
Sec. 20.
"And be it further enacted by the authority aforesaid, that no governor,
or deputy-governor of any of his majesty's colonies or plantations il, America,
or his majesty's judges in any courts there for the time being, nor any other
person or persons for the use or on behalf of such governor or deputy-governor
or judges, from and after the nine-and-twentieth day of September, one thousand
six hundred and ninety-eight, shun be a factor or factor's agent or agents for
the said Company,[* The Royal African
Company] or any other person or persons for the sale or disposal of any
negroes, and that every person offending herein shall forfeit five hundred
pounds to the uses aforesaid, to be recovered in any of his majesty's courts of
record at Westminster, by action of debt, bill, plaint or information, wherein
no essoign, protection, privilege or wager of law shall be allowed, nor any
more than one imparlance."
Sec. 21.
"Provided that this act shall continue and he in force thirteen years,
and from thence to the end of the next sessions of Parliament, and no
longer."
Even if
this act had legalized (as in reality it did not legalize) the slave trade during
those thirteen years, it would be impossible now to distinguish the descend-
[*28] ants of those who were imported
under it, from the descendants of those who had been previously, and were
subsequently imported and sold into slavery without law. The act would
therefore avail nothing towards making the existing slavery in this country
legal.
The next
statute, of which I find any trace, passed by Parliament, with any apparent
view to countenance the slave trade, was the statute of 23d George II., ch. 31,
(1749-- 50.)
Mr.
Bancroft has committed another still more serious error in his statement of the
words (for he professes to quote precise words) of this statute. He
says, (vol. 3, p. 414,)
"At
last, in 1749, to give the highest activity to the trade, (meaning the slave
trade,) every obstruction to private enterprise was removed, and the ports of
Africa were laid open to English competition, for 'the slave
trade,' ‑‑‑ such" (says Mr.
Bancroft,) "are the words of the statute ‑‑‑ 'the
slave trade is very advantageous to Great Britain.'"
As words
are, in this case, things ‑‑‑ and
things of the highest legal consequence ‑‑‑ and
as this history is so extensively read and received as authority ‑‑‑ it
becomes important, in a legal, if not historical, point of view, to correct so
important an error as that of the word slave in this statement. "The words
of the statute" are not that "the slave trade," but that "the
trade to and from Africa is very advantageous to Great Britain."
"The trade to and from Africa" no more means, in law,
"the slave trade," than does the trade to and from China. From aught
that appears, then, from so much of the preamble, "the trade to and
from Africa" may have been entirely in other things than slaves. And it
actually appears from another part of the statute, that trade was carried on in
"gold, elephant's teeth, wax, gums and drugs."
From the
words immediately succeeding those quoted by Mr. Bancroft from the
preamble to this statute, it might much more plausibly, (although even from
them it could not be legally) inferred that the statute legalized the slave
trade, than from those pretended to be quoted by him. That the succeeding words
may be seen, the title and preamble to the act are given, as follows:
"An
act for extending' and improving the trade to Africa."
"Whereas,
the trade to and from Africa is very advantageous to Great Britain, and
necessary for supplying the plantations and colonies thereunto belonging, with
a sufficient number of NEGROES at reasonable rates; and for that
purpose the said trade" (i. e. "the trade to and from Africa")
"ought to be free and open to all his majesty's subjects. Therefore be it
enacted," &c.
"Negroes"
were not slaves by the English law, and therefore the word "negroes,"
in this preamble, does not legally mean slaves. For aught that appears from the
words of the preamble, or even from any part of the statute itself, these
"negroes," with whom it is declared to be necessary that the
plantations and colonies should be supplied, were free persons, voluntary
emigrants, that were to be induced to go lo the plantations as hired laborers,
as are those who, at this day, are induced, in large numbers, and by the
special agency of the English government, to go to the British West Indies. In
order to facilitate this emigration, it was necessary that "the trade to
and from Africa" should be encouraged. And the form of the preamble is
such as it properly might have been, if such had been the real object of
Parliament. Such is undoubtedly the true legal meaning of this preamble, for
this meaning being consistent with natural right, public policy, and with the
fundamental principles of English law, legal rules of construction imperatively
require [*29] that this meaning should be ascribed to it, rather than it should
be held to authorize anything contrary to natural right, or contrary to the
fundamental principles of British law.
We are
obliged to put this construction upon this preamble, for the further reason
that it corresponds with the enacting clauses of the statute ‑‑‑ not
one of which mentions such a thing as the transportation of slaves to, or
the sale of slaves in "the plantations and colonies." The first
section of the act is in these words, to wit:
"That
it shall and may be lawful for all his majesty's subjects to trade and traffic
to and from any port or place in Africa, between the port of Sallee in South
Barbary, and the Cape of Good Hope, when, at such times, and in such manner,
and in or with such quantity of goods, wares and merchandizes, as he or
they shall think fit, without any restraint whatsoever, save as is herein after
expressed."
Here
plainly is no authority given "to trade and traffic" in anything
except what is known either to the English law, or the law of nature, as
"goods, wares, or merchandizes " ‑‑‑ among
which men were not known, either to the English law, or the law
of nature.
The second
section of the act is in these words:
"That
all his majesty's subjects, who shall trade to or from any of the ports or
places of Africa, between Cape Blanco and the Cape of Good Hope, shall forever
hereafter be a body corporate and politic, in name and in deed, by the name of
the Company of Merchants Trading to Africa, and by the same name shall have
perpetual succession, and shall have a common seal, and by that name shall and
may sue, and be sued, and do any other act: matter and thing, which any other
body corporate or politic, as such, may lawfully do."
Neither
this nor any other section of the act purports to give this
"Company," in its corporate capacity, any authority to buy or sell
slaves, or to transport slaves to the plantations and colonies.
The
twenty-ninth section of the act is in these words:
"And
be it further enacted, by the authority aforesaid, that no commander or master
of any ship trading to Africa, shall by fraud, force or violence, or by
any other direct practice whatsoever, take on board, or carry away from the
coast of Africa, any negro or native of the said country, or commit, or suffer
to be committed, any violence on the natives, to the prejudice of the said
trade; and that every person so offending shall, for every such offence,
forfeit the sum of one hundred pounds of lawful money of Great Britain; one
moiety thereof to the use of the said Company hereby established, and their
successors, for and towards the maintaining of said forts and settlements, and
the other moiety to and for the use of him or them who shall inform or sue for
the same."
Now,
although there is perhaps no good reason to doubt that the secret intention of
Parliament in the passage of this act, was to stimulate the slave trade, and
that there was a tacit understanding between the government and the slave
dealers, that the slave trade should go on unharmed (in practice) by the
government, and although it was undoubtedly understood that this penalty of one
hundred pounds would either not be sued for at all, or would be sued for so
seldom as practically to interpose no obstacle to the general success of
the trade, still, as no part of the whole statute gives any authority to this
"Company of Merchants trading to Africa" to transport men from Africa
against their will, and as this twenty-ninth section contains a special
prohibition to individuals, under penalty, to do so, no one can pretend that
the trade was legalized. If the penalty had been but one poundj instead of one
hundred pounds, it would have been sufficient, in law to have [*30]
rebutted the pretence that the trade was legalized. The act, on its £tee and in
its legal meaning, is much more an act to prohibit, than to authorize the slave
trade.
The only
possible legal inference from the statute, so far as concerns the
"supplying the plantations and colonies with negroes at reasonable rates,"
is, that these negroes were free laborers, voluntary emigrants, that were to be
induced to go to the plantations and colonies; and that "the trade to and
from Africa" was thrown open in order that the facilities for the
transportation of these emigrants might be increased.
But
although there is, in this statute, no authority given for ‑‑‑ but,
on the contrary, a special prohibition upon ‑‑‑ the
transportation of the natives from Africa against their will, yet I freely
admit that the statute contains one or two strong, perhaps decisive
implications in favor of the fact that slavery was allowed in the English
settlements on the coast of Africa, apparently in conformity with the
customs of the country, and with the approbation of Parliament. But that is the
most that can be said of it. Slavery, wherever it exists, is a local
institution; and its toleration, or even its legality, on the coast of
Africa, would do nothing towards making it legal in any other part of the
English dominions. Nothing but positive and explicit legislation could
transplant it into any other part of the empire.
The
implications, furnished by the act, in favor of the toleration of slavery, in
the English settlements, on the coast of Africa, are the following:
The third
section of the act refers to all other act of Parliament "divesting the
Royal African Company of their charter, forts, castles and military
stores, canoe men and castle-slaves;" and section
thirty-first requires that such "officers of his majesty's navy," as
shall be appointed for the purpose," shall inspect and examine the state
and condition of the forts and settlements on the coast of Africa, in the
possession of the Royal African Company, and of the number of the soldiers
therein, and also the state and condition of the military stores, castles,
slaves, canoes and other vessels and things, belonging to the said company, and
necessary for the use and defence of the said forts and settlements, and
shall with all possible despatch report how they find the same."
Here the fact is stated that the" Royal African
Company," (a company that had been in existence long previous to the
passing of this act,) had held "castle slaves" "for the use and
defence of the said forts and settlements." The act dot's not say directly
whether this practice was legal or illegal; although it seems to imply that,
whether legal or illegal, it was tolerated with the knowledge and approbation
of Parliament.
But the
most distinct approbation given to slavery by the act, is implied in the
twenty-eighth section, in these words:
"That
it shall and may be lawful for any of his majesty's subjects trading to Africa,
for the security of their goods and slaves., to erect houses and warehouses,
under the protection of the said forts," &c.
Although
even this language would not be strong enough to overt, turn previously
established principles of English law, and give the slave holders a legal right
of property in their slaves, in any place where English law had previously been
expressly established, (as it had been in the North American colonies,) yet it
sufficiently evinces that Parliament approved of Englishmen holding slaves in
the settlements on the coast of Africa, in conformity with the customs of that
country. But it implies no authority for transporting their slaves to America;
it does nothing towards legalizing slavery in America; it implies no toleration
even of slavery anywhere, except upon the coast of Africa. Had slavery been
positively and [*31] explicitly legalized on the coast of Africa, it would
still have been a local institution.
This
reasoning may appear to some like quibbling; and it would perhaps be so, were
not the rule well settled that nothing but explicit and irresistible language
can be legally held to authorize anything inconsistent with natural right, and
with the fundamental principles of a government.
That this
statute did not legalize the right of property in man, (unless as a local
principle on the coast of Africa,) we have the decision of Lord Mansfield, who
held that it did not legalize it in England; and if it did not legalize it in
England, it did not legalize it in any of the colonies where the principles of
the common law prevailed. Of course it did not legalize it ill the North
American colonies.
But even if it were admitted that this statute legalized the right
of property, on the part of the slave trader, in his slaves taken in Africa
after the passage of the act, and legalized the sale of such slaves in America,
still the statute would be ineffectual to sustain the legality of slavery, in
general, in the colonies. It would only legalize the slavery of those
particular individuals, who should be transported from Africa to America,
subsequently to the passage of this act, and in strict conformity with the law
of this act ‑‑‑ (a thing, by the way,
that could now be proved in no case whatever.) This act was passed in 1749--50,
and could therefore do nothing towards legalizing the slavery of all those who
had, for an hundred and thirty years previous, been held in bondage in Virginia
and elsewhere. And as no distinction can now be traced between the descendants
cf those who were imported under this act, and those who had illegally been
held in bondage prior to its passage, it would be of no practical avail to
slavery now, to prove, (if it could be proved,) that those introduced into the
country subsequent to 1750, were legally the property of those who introduced
them. Return
9. [*33] "Chastise." An act passed in South Carolina
in 1740, authorized slaves to sue for their liberty, by a guardian appointed
for the purpose. The act then provides that if judgment be for the slave, he
shall be set free, and recover damages; "but in case judgment shall be
given for the defendant, (the master,) the said court is hereby fully empowered
to inflict such corporeal punishment, not extending to life or limb, on the
ward of the plaintiff, (the slave,) as they in their discretion shall see
fit? ‑‑ Brevard's Digest, vol. 2,
p. 130.
"Baptize."
In 1712 South Carolina passed this act:
"Since
charity and the Christian religion which we profess, obliges us to wish well to
the souls of all men, and that religion may not be made a pretence to alter any
man's property and right, and that no persons may neglect to baptize their
negroes or slaves, or suffer them to be baptized, for fear that thereby they
should be manumitted and set free: Be it therefore enacted, That it
shall be, and is hereby declared lawful for any negro or Indian slave, or any
other slave or slaves whatsoever, to receive and profess the Christian faith,
and be thereunto baptized. But that notwithstanding such slave or slaves shall
receive and profess the Christian religion, and be baptized, he or they shall
not thereby be manumitted or set free, or his or their owner, master or
mistress lose his or their civil right, property and authority over such slave
or slaves, but that the slave or slaves, with respect to his or their
servitude, shall remain and continue in the same state and condition, that he
or they was in before the making of this act." ‑‑‑ Grimke,
p. 18. Brevard, vol. 2, p. 229.
In 1667,
the following statute was passed in Virginia:
"Whereas,
some doubts have arisen whether children that are slaves by birth, and by the
charity and piety of their owners made partakers of the blessed sacrament of
baptism, should by virtue of their baptism be made free; It is enacted and
declared by this grand assembly, and the authority thereof, that the
conferring of baptism doth not alter the condition of the person as to his
bondage or freedom; that divers masters, freed from this doubt, may more
carefully endeavour the propagation of' Christianity by permitting children,
though slaves, or those of greater growth, if capable to be admitted to that
sacrament." ‑‑‑ Hening's
Statutes, vol. 2, p. 260. Return
10. [*34]
Henning, Vol. 2, p. 283. Return
11. [*34]
Henning, Vol. 5, p. 547-8. Return
12. [*34] In 1753 Virginia passed a statute, occupying some twelve or
fifteen pages of the statute book, and intended to cover the whole general
subject of slavery. One of the sections of' this act is as follows:
"That
all and every other act and acts, clause and clauses, heretofore made, fo-
[*35] or concerning any matter or thing within the provision of this act, shall
be and are hereby repealed." ‑‑‑ Hening’s
Statutes, vol. 6, p. 369.
No
reservation being made, by this section, of rights acquired under former
statutes, and slave property being a matter dependent entirely upon statute,
all title W slave property, acquired under former acts, was by this act
annihilated; and all the slaves in the State were made freemen, as against
all prior legislation. And the slaves of the State were thenceforward held
in bondage only by virtue of another section of the same act, which was in
these words:
"That
all persons who have been, or shall be imported into this colony, by sea
or land, and were not Christians in their native country, except Turks and
Moors in amity with his majesty, and such who can prove their being free in
England, or any other Christian country, before they were shipped for
transportation hither, shall be accounted slaves, and as such be here bought
and sold, notwithstanding a conversion to Christianity after their
importation." ‑‑‑ Hening, vol. 6,
p.356-7.
The act
also provided, "That all children shall be bond or free, according to the
condition of their mothers and the particular directions of this act."
Return
13. [*35] The following is the preamble
and the important enacting clause of this statute 1740:
"Whereas,
in his majesty's plantations in America, slavery has been introduced [*36] and
allowed; and the people commonly called negroes, Indians, mulattos and
mestizoes have (been) deemed absolute slaves, and the subjects of property in
the hands of particular persons; the extent of whose power over such slaves
ought to be settled and limited by positive laws, so that the slaves may be
kept in due subjection and obedience, and the owners and other persons having
the care and government of slaves, may be restrained from exercising too great
rigor and cruelty over them; and that the public peace and order of this
province may be preserved: Be it enacted, That all negroes, Indians, (free
Indians in amity with this government, and negroes, mulattos and mestizoes, who
are now free, excepted,) mulattos and mestizoes, who now are or shall
hereafter be in this province, and all their issue and offspring born or to be
born, shall be and they are hereby declared to be and remain forever hereafter
absolute slaves, and shall follow the condition of thru mother,"
&c. ‑‑‑ Grimke, p. 163 - 4. Brevard,
vol. 2, p. 229. Return
14. [*39] The State constitutions of 1789 were adopted as follows:
Georgia, 1777 South Carolina, .1778; North Carolina, 1776; Virginia, 1776;
Maryland, 1776, Delaware, 1776; Pennsylvania, 1776; New Jersey, 1776; New York,
1777; Massachusetts, 1780; New Hampshire, 1753.
These
early Constitutions ought to be collected and published with appropriate notes.
Return
15. [*47] Since that time the words "free" and
"freemen" have been gradually falling into disuse, and the word
citizen been substituted -- doubtless for the reason that it is not pleasant to
our pride or our humanity to use words, one of whose significations serves to
suggest a contrast between ourselves and slaves. Return
16. [*48]
Dallas’ edition of the Laws of Pennsylvania, vol. 1, Appendix, Page 25. Return
17. [*51]
Cooper’s edition of the Laws of South Carolina, vols. 2 and 4.
"Aliens." Return
18. [*63] This language of the Supreme
Court contains an admission of the truth of the charge just made against
judges, vis. That rather than lose their offices, they will violate what they
know to be law, in subserviency to the legislatures on whom they depend; for it
admits, 1st, that the preservation of men's rights is the
vital principle of law, and 2nd, that courts (and the Supreme Court
of the United States in particular) will trample upon that principle at the
bidding of the legislature, when the mandate comes in the shape of the statute
of such "irresistible clearness," that is meaning cannot be
evaded. Return
19. [*63]
"Laws are construed strictly to save a right." ‑‑‑ Whitney
et al. vs. Emmett et al., 1 Baldwin, C. C. R. 316.
"No law will make a
construction to do wrong; and there are some things which the law favors, and
some it dislikes; it favoreth those things that come from the order of
nature." ‑‑‑ Jacob's Law
Dictionary, title Law. Return
20. [*68] In the convention that
framed the constitution when this clause was under discussion,
"servants" were spoken of as a distinct class from
"slaves." For instance,
"Mr. Butler and Mr. Pickney moved to require fugitive slaves and ser-
[*64] vants to be delivered up like criminals.'" Mr. Sherman
objected to delivering up either slaves or servants. He said he "saw no
more propriety in the public seizing and surrendering a slave or servant,
than a horse." ‑‑‑ Madison
Papers, p. 1447- 8
The
language finally adopted shows that they at last agreed to deliver up "servants,"
but not "slaves" ‑‑‑ for
as the word "servant" does not mean "slave," the word
"service" does not mean slavery.
These
remarks in the convention are quoted, not because the intentions of the
convention are of the least legal consequence whatever; but to rebut the silly
arguments of those who pretend that the convention, and not the people, adopted
the constitution-- and that the convention did not understand the legal
difference between the word "servant" and "slave," and
therefore used the word "service" in this clause, as meaning slavery.
Return
21.
[*80] It is a well
settled rule of interpretation, that each single word of an instrument must be
taken to have some appropriate reference or relation to the matters treated of
in the rest of the instrument, where it is capable of such a meaning. By this
rule the words "free" and "freeman," when used in charters
of incorporation, universally apply to persons who are members of the
corporation ‑‑‑ or are (as it is
termed) "free of the company" or corporation, created by the
charter ‑‑‑ that is, free to enjoy, as
a matter of right, the privileges of the corporation. It is not probable that,
at the adoption of the constitution, any other use of these words,
"free" and "freeman," could have been found in a single
charter of incorporation in the English language, whether the charter were one
of a trading corporation, of a city, a colony, or a State. Now, the
constitution of the United States is but the charter of a corporation. Its
object is to form "the people of the United States" into corporation,
or body politic, for the purpose of maintaining government, and for dispensing
the benefits of government to the members of the corporation. If the word
"free," in such a charter, is to be construed to have any reference
to the general subject matter of the charter, it of course refers to those who
are members of the corporation; to the citizens; those who are "free of
the corporations" as distinguished from aliens, or persons not members of
the corporation.
But the
advocates of slavery are compelled to adopt the absurdity of denying that the
meaning of the word "free" has any relation Lo the rest of the
instrument; or [*81] any reference to the persons who are really "free of
the corporation," which the instrument creates. They are obliged to
maintain that it is used only to describe those who are free from some
individual tyranny, which the instrument nowhere else recognizes as existing,
and which really had no legal existence to be recognized.
All this
is a palpable violation of a perfectly well settled rule of
interpretation ‑‑‑ of a rule, which is
obviously indispensable for maintaining any kind of coherence between the
different parts of an instrument. Return
22. [*82]
Gibbons vs. Ogden. ‑‑‑ (9 Wheaton, 1.) Return
23. [*87] Since the publication of the first edition, it has been asked
whether the "tax or duty" authorized by the clause, does not imply
that the persons imported axe property? The answer is this. "A tax or
duty" on persons is a poll tax; and a poll tax is a tax or duty on
persons ‑‑‑ nothing more ‑‑‑ nothing
less. A poll tax conveys no implication that the persons, on whom the tax is
levied, are property otherwise all of us, on whom a poll tax has ever been
levied, were deemed by the law to be property ‑‑‑ and
if property, slaves. A poll tax on immigrants no more implies that they are
slaves, than a poll tax on natives implies that the latter are slaves. Return
24. [*92] "The government (of the U. S.) proceeds directly from the people;
is 'ordained and established' in the name of the people." ‑‑‑ M'Culloch
vs. Maryland, 4 Wheaton, 403.
"The
government of the Union is emphatically and truly, a government of the people;
and in form and in substance it emanates from them. Its powers are granted by
them, aNd are to be exercised directly on them, and for their
benefit." ‑‑‑ Same, pages
404, 405.
"The
constitution of the United States was ordained and established, not by the
United States in their sovereign capacities, but emphatically, as the preamble
of the constitution declares, by 'the people of the United
States.'" ‑‑‑ Martin vs.
Hunter's lessee, 1 Wheaton, 324. Return
25. [*99] That is, male persons. The constitution, whenever it uses
the pronoun, ia speaking of the President, uniformly uses the masculine
gender ‑‑‑ from which it may be
inferred that male persons only were intended to be made eligible to the
office.
Perhaps
this inference might not be allowable, if either the office, or eligibility to
the office, were anything that any one could naturally claim as a right. But
neither can be claimed as a right. The office is not given to any one because
he has a right to it, nor because it may be even a benefit to him. It is
conferred upon him, or rather confided to him, as a trust, and solely as a
trust, for the sole benefit of the people of the United States. The President,
as President, is rot supposed to have any rights in the office on his own
account; or any rights except what the people, for their own benefit, and not
for his, have voluntarily chosen to grant to him. And the people have a right
to confide this trust to whomsoever they please, or to whomsoever they think it
will be most for their interest to confide it. And no one can say that
his rights are either violated or withheld, merely because he is not selected
for the trust, even though his real fitness for the trust should be altogether
superior to that of the one selected. He can only say that his merits or
qualifications are not properly appreciated. The people have naturally the same
free, unqualified, irresponsible right to select their agents or servants,
according to their pleasure or discretion, that a private individual has to
select his, without giving any one, who is not selected, any reason to say that
his rights are violated. The most fit person has no more claim, in the nature
of a right, to the office, than a person the least fit; he has only
qualifications; no one has rights.
The
people, then, who establish this office, and for whose benefit alone it is to
be filled, and whose servant he President is, have naturally an unqualified
right to exercise their free pleasure or discretion in the selection of the
person to fill it without giving any one, who is not selected, any ground for
saying that his rights are withheld, or for saying anything other than that his
merits or abilities are not [*100] properly estimated. The people, for example,
have a right to say, as in their constitution they have said, that they will
confide this trust to no one who is not thirty-five years old; and they do not
thereby infringe or withhold any of the rights of those who are under
thirty-five years old; although it is possible that they do not properly
estimate their fitness for the office. So they have a perfect right to say that
they will not confide this trust to women; and women cannot say that their
rights are thereby withheld; although they are at liberty to think and say that
their qualifications for the office arc not appreciated.
Inasmuch, then, as no rights are withheld or violated by
making male persons only eligible to the office, we are at perfect liberty to
construe the language of the constitution according to its grammatical meaning,
without seeking to go beyond it. According to this meaning, male persons only are
eligible ‑‑‑ for the constitution
speaks of "the President" as a single individual; and very
properly too ‑‑‑ for although different
individuals may fill the office, yet only one can fill it at a time, and the
office is presumed never to be vacant. It is therefore of the officer, as a
single and perpetual one, and not of the different individuals, (as
individuals,) who may at different times fill the office, that the constitution
speaks, when it speaks of "the President." And in speaking of this
perpetual officer as a single individual, it uniformly uses the masculine
pronoun. Inasmuch as it would be a plain violation of grammatical rules to
speak of a single and particular individual as a male person, if the individual
were a female, it may (and probably must) be inferred that the constitution did
not intend that the office should ever be filled by any other than a male
person. Return
26. [*105] Somerset was not a citizen
of England, or entitled, as such, to the protection of the English law. The
privilege of the writ of habeas corpus was granted to him on the ground
simply of his being a man. Return
27. [*107] From whom come these
objections to the "propriety" of the general government's interfering
to maintain republicanism in the states? Do they not come from those who have
ever hitherto claimed that the general government was hound to interfere to put
down republicanism? And that those who were republicans at the north, might
with perfect "propriety" and consistency, pledge their assistance to
the despots of the south, to sustain the worst, the meanest and most atrocious
of tyrannies? Yes, from the very same. To interfere to assist one half of the
people of a state in the cowardly, cruel and fiendish work of crushing the
other half into the earth, corresponds precisely with their chivalrous notions
of "propriety;" but it is insufferable officiousness for them to form
any political compacts that will require them to interfere to protect the weak
against the tyranny of the strong or to maintain justice, liberty, peace and
freedom. Return
28. [*111] Eli Whitney. Return
29.
[*114] The Supreme
Court say, "The instrument, when it came from their hands (that is, the
hands of the convention,) was a mere proposal, without obligation or pretension
to it." "The people were at perfect liberty to accept or reject it;
and their act was final." ‑‑‑ M'Culloch
vs. Maryland, ‑‑‑ 4
Wheaton 403-4 Return
30. [*115] The Supreme Court of the
United States say:
"The
intention of the instrument must prevail: this intention must be collected
from its words." -‑- Ogden vs.
Saunders ‑‑‑ 12 Wheaton,
332.
"The
intention of the legislature is to be searched for in the words which the
legislature has employed to convey it." ‑‑‑ Schr.
Paulina's Cargo vs. United States, ‑‑‑ 7
Cranch, 60.
Judge
Story, in giving an opinion upon the bankrupt act, replies as follows to al
argument analogous to that, which is often drawn from the debates of the
convention, in opposition to the language of the constitution itself. He says:
"At
the threshold of the argument, we are met with the suggestion, that when the
(Bankrupt) act was before Congress, the opposite doctrine was then maintained
in the House of Representatives, and it was confidently stated, that no such
jurisdiction was conferred by the act, as is now insisted on. What passes in
Congress upon the discussion of a bill can hardly become a matter of strict
judicial inquiry; and if it were, it could scarcely be affirmed, that the
opinions of a few members, expressed either way, are to be considered as the
judgment of the whole House, or even of a minority. But, in truth, little
reliance can or ought to be placed upon such sources of interpretation of a
statute. The questions can be, and rarely are, there debated upon strictly
legal grounds, with a full mastery of the subject and of the just rules of
interpretation. The arguments are generally of a mixed character, addressed by
way of objection or of support, rather with a view to carry or defeat a bill,
than with the strictness of a judicial decision. But if the House entertained
one construction of the language of the bill, non constat, that the same
opinion was entertained either by the Senate or by the President; and their
opinions are certainly, in a matter of the sanction of laws, entitled to as
great weight as the other branch. But in truth, courts of justice are not at
liberty to look at considerations of this sort. We are bound to interpret the
act as we find it, and to make such an interpretation as its language and its
apparent objects require. We must toke it to be true, that the legislature
intend precisely what they say, and to the extent which the provisions of
the act require, for the purpose of securing their just operation and effect. Any
other course would deliver over the court to interminable doubts and
difficulties; and we should be compelled to guess what was the law, from the
loose commentaries of different debates, instead of the precise enactments of
the statute. Nor have there been wanting illustrious instances of great
minds, which, after they had, as legislators, or commentators, reposed upon a
short and hasty opinion, have deliberately withdrawn from their first
impressions, when they came upon the judgment seat to re-examine the statute or
law in its full bearings." ‑‑‑ Mitchell
vs. Great Works Milling and Manufacturing Company. Story's Circuit Court
Reports, Vol. 2, page 653.
If the intentions of legislatures, who are invested with the
actual authority of prescribing laws, are of no consequence otherwise than as
they are expressed in the language of their statutes, of how much less
consequence are any unexpressed intentions of the framers of the constitution,
who had no authority to establish a constitution, but only to draft one to be
offered to the people for their adoption or rejection. Return
31.
[*117]
"Elliot's Debates," so often referred to, are, if possible, a more
miserable authority than Mr. Madison's notes. He seems to have picked up the
most of them from the newspapers of the day, in which they were reported by
nobody now probably knows whom. In his preface to his first volume, containing
the debates in the Massachusetts and New York conventions, he says:
"In
the compilation of this volume, care has been taken to search into contemporary
publications, in order to make the work as perfect as possible; still, however,
the editor is sensible, from the daily experience of newspaper reports of the
present time, that the sentiments they contain may, in some instances, have
been inaccurately taken down, and in others, probably too faintly sketched,
fully to gratify the inquisitive politician." He also speaks of them as
"rescued from the ephemeral prints of that day, and now, for the first
time, presented in a uniform and durable form."
In the
preface to his second volume, which is devoted to the Virginia convention, he
says the debates were reported by an able stenographer, David Robertson; and
then quotes the following from Mr. Wirt, in a note to the Life of Patrick
Henry:
"From
the skill and ability of the reporter, there can be no doubt that the substance
of the debates, as well as their general course, are accurately
preserved."
In his
preface to the third volume, embracing the North Carolina and Pennsylvania
conventions, he says:
"The first
of the two North Carolina conventions is contained in this volume [*118] the second
convention, it is believed, was neither systematically reported nor
printed." The debates in the Pennsylvania convention, that have been
preserved, it appears, are on one side only; a search into the
contemporary publications of the day, has been unsuccessful to furnish us with
the other side of the question."
In his
preface to the fourth volume, he says:
"In
compiling the opinions, on constitutional questions, delivered in Congress, by
some of the most enlightened senators and representatives, the files of the New
York and Philadelphia newspapers, from 1789 to 1800, had to be relied on; from
the latter period to the present, the National Intelligencer is the authority
consulted for the desired information."
It is from such stuff as this, collected and published thirty-five
and forty years after the constitution was adopted ‑‑‑ stuff
very suitable for constitutional dreams to be made of ‑‑‑ that
our courts and people now make their constitutional law, in preference to adopting
the law of the constitution itself. In this way they manufacture law strong
enough to bind three millions of men in slavery. Return
32.
[*129] This
principle would apply, as we have before seen, where the change was from the colonial
to a state government. It would also apply to all cases where the change took
place, under the constitution of the United States, from a territorial
to a state government. It needs no argument to prove that all our territorial
statutes that have purported to authorize slavery, were unconstitutional. Return
33. [*131] Art. 2, Sec. 1, Clause 5:
"No person, except a natural born citizens * * * shall be eligible to the
office of President." Return
34. [*139]
Jones on Bailments, 133. Return
35. [*139] Kent, describing the
difficulty of construing the written law, says:
"Such
is the imperfection of language, and the want of technical skill in the makers
of the law, that statutes often give occasion to the most perplexing and
distressing doubts and discussions, arising from the ambiguity that attends
them. It requires great experience, as well as the command of a perspicuous
diction, to frame a law ia such clear and precise termss as to secure it from
ambiguous expressions, and from all doubts and criticisms upon its
meaning." ‑‑‑ Kent, 460. Return
36. [*140] This condemnation of written
laws must, of course, be understood as applying only to cases where principles
and rights are involved, and not as condemning any governmental arrangements,
or instrumentalities, that are consistent with natural right, and which must be
agreed upon for the purpose of carrying natural law into effect. These things
may be varied, as expediency may dictate, so only that they be allowed to
infringe no principle of justice. And they must, of course, be written, because
they do not exist as fixed principles, or laws in nature. Return
37. [*140] The objections made to
natural law, on the ground of obscurity, are wholly unfounded. It is true, it
must be learned, like any other science, but it is equally true, that it is
very easily learned. Although as illimitable in its applications as the
infinite relations of men to each other, it is, nevertheless, made up of simple
elementary principles, of the truth and justice of which every ordinary mind
has [*141] an almost intuitive perception. It is the science of justice ‑‑‑ and
almost all men have the same perceptions of what constitutes justice, or of
what justice requires, when they understand alike the facts from which their
inferences are to be drawn. Men living in contact with each other, and having
intercourse together, cannot avoid learning natural law, to a very great
extent, even if they would. The dealings of men with men, their separate
possessions, and their individual wants, are continually forcing upon their'
minds the questions, ‑‑‑ Is this act just?
or is it unjust? Is this thing mine?. or is it his? And these are questions of
natural law; questions, which, in regard to the great mass of cases, are
answered alike by the human mind everywhere.
Children
learn many principles of natural law at a very early age. For example: they
learn that when one child has picked up an apple or a flower, it is his, and
that his associates must not take it from him against his will. They also learn
that if he voluntarily exchange his apple or flower with a playmate, for some
other article of desire, he has thereby surrendered his right to it, and must
not reclaim it. These are fundamental principles of natural law, which govern
most of the greatest interests of individuals and society; yet, children learn
them earlier than they learn that three and three are six, or five and five,
ten. Talk of enacting natural law by statute, that it may be known ! It would
hardly be extravagant to say, that, in nine cases in ten, men learn it before
they have learned the language by which we describe it. Nevertheless, numerous
treatises are written on it, as on other sciences. The decisions of courts,
containing their opinions upon the almost endless variety of cases that have
come before them, are reported; and these reports are condensed, codified, and
digested, so as to give, in a small compass, the facts, and the opinions of the
courts as to the law resulting from them. And these treatises, codes, and
digests are open to be read of all men. And a man has the same excuse for being
ignorant of arithmetic, or any other science, that he has for being ignorant of
natural law. He can learn it as well, if he will, without its being enacted, as
he could if it were.
If our
governments would but themselves adhere to natural law, there would be little
occasion to complain of the ignorance of the people in regard to it. The
popular ignorance of law is attributable mainly to the innovations that have
been made upon natural law by legislation; whereby our system has become an
incongruous mixture of natural and statute law, with no uniform principle
pervading it. To learn such a system, ‑‑‑ if
system it can be called, and if learned it can be, ‑‑‑ is
a matter of very similar difficulty to what it would be to learn a system of
mathematics, which should consist of the mathematics of nature, interspersed
with such other mathematics as might be created by legislation, in violation of
all the natural principles of numbers and quantities.
But
whether the difficulties of learning natural law be greater or less than here
represented, they exist in the nature of things, and cannot be removed.
Legislation, instead of removing, only increases them. This it does by
innovating upon natural truths and principles, and introducing jargon and
contradiction, in the place of order, analogy, consistency, and uniformity.
Further
than this; legislation does not even profess to remove the obscurity of natural
law. That is no part of its object. It only professes to substitute some-
[*142] thing arbitrary in the place of natural law. Legislators generally have
the sense to see that legislation will not make natural law any clearer than it
is.
Neither is
it the object of legislation to establish the authority of natural law.
Legislators have the sense to see that they can add nothing to the authority of
natural law, and that it will stand on its own authority, unless they overturn
it.
The whole
object of legislation, excepting that legislation which merely makes
regulations, and provides instrumentalities for carrying other laws into
effect, is to overturn natural law, and substitute for it the arbitrary will of
power. In other words, the whole object of it is to destroy men's rights. At
least, such is its only effect; and its design must be inferred from its effect.
Taking all the statutes in the country, there probably is not one in a hundred,
‑‑‑ except the auxiliary ones just
mentioned, ‑‑‑ that dues not violate natural
law; that does not invade some right or other.
Yet, the
advocates of arbitrary legislation are continually practising the fraud of
pretending, that unless the legislature make the laws, the laws will not
be known. The whole object of the fraud is to secure to the government the
authority of making laws that never ought to be known.
Return
38. [*140] The objections made to
natural law, on the ground of obscurity, are wholly unfounded. It is true, it
must be learned, like any other science, but it is equally true, that it is
very easily learned. Although as illimitable in its applications as the infinite
relations of men to each other, it is, nevertheless, made up of simple
elementary principles, of the truth and justice of which every ordinary mind
has [*141] an almost intuitive perception. It is the science of justice ‑‑‑ and
almost all men have the same perceptions of what constitutes justice, or of
what justice requires, when they understand alike the facts from which their
inferences are to be drawn. Men living in contact with each other, and having
intercourse together, cannot avoid learning natural law, to a very great
extent, even if they would. The dealings of men with men, their separate
possessions, and their individual wants, are continually forcing upon their'
minds the questions, ‑‑‑ Is this act just?
or is it unjust? Is this thing mine?. or is it his? And these are questions of
natural law; questions, which, in regard to the great mass of cases, are
answered alike by the human mind everywhere.
Children
learn many principles of natural law at a very early age. For example: they
learn that when one child has picked up an apple or a flower, it is his, and
that his associates must not take it from him against his will. They also learn
that if he voluntarily exchange his apple or flower with a playmate, for some
other article of desire, he has thereby surrendered his right to it, and must
not reclaim it. These are fundamental principles of natural law, which govern
most of the greatest interests of individuals and society; yet, children learn
them earlier than they learn that three and three are six, or five and five,
ten. Talk of enacting natural law by statute, that it may be known ! It would
hardly be extravagant to say, that, in nine cases in ten, men learn it before
they have learned the language by which we describe it. Nevertheless, numerous
treatises are written on it, as on other sciences. The decisions of courts,
containing their opinions upon the almost endless variety of cases that have
come before them, are reported; and these reports are condensed, codified, and
digested, so as to give, in a small compass, the facts, and the opinions of the
courts as to the law resulting from them. And these treatises, codes, and
digests are open to be read of all men. And a man has the same excuse for being
ignorant of arithmetic, or any other science, that he has for being ignorant of
natural law. He can learn it as well, if he will, without its being enacted, as
he could if it were.
If our
governments would but themselves adhere to natural law, there would be little
occasion to complain of the ignorance of the people in regard to it. The
popular ignorance of law is attributable mainly to the innovations that have
been made upon natural law by legislation; whereby our system has become an
incongruous mixture of natural and statute law, with no uniform principle
pervading it. To learn such a system, ‑‑‑ if
system it can be called, and if learned it can be, ‑‑‑ is
a matter of very similar difficulty to what it would be to learn a system of
mathematics, which should consist of the mathematics of nature, interspersed
with such other mathematics as might be created by legislation, in violation of
all the natural principles of numbers and quantities.
But
whether the difficulties of learning natural law be greater or less than here
represented, they exist in the nature of things, and cannot be removed.
Legislation, instead of removing, only increases them. This it does by
innovating upon natural truths and principles, and introducing jargon and
contradiction, in the place of order, analogy, consistency, and uniformity.
Further
than this; legislation does not even profess to remove the obscurity of natural
law. That is no part of its object. It only professes to substitute some-
[*142] thing arbitrary in the place of natural law. Legislators generally have
the sense to see that legislation will not make natural law any clearer than it
is.
Neither is
it the object of legislation to establish the authority of natural law.
Legislators have the sense to see that they can add nothing to the authority of
natural law, and that it will stand on its own authority, unless they overturn
it.
The whole
object of legislation, excepting that legislation which merely makes
regulations, and provides instrumentalities for carrying other laws into
effect, is to overturn natural law, and substitute for it the arbitrary will of
power. In other words, the whole object of it is to destroy men's rights. At
least, such is its only effect; and its design must be inferred from its
effect. Taking all the statutes in the country, there probably is not one in a
hundred, ‑‑‑ except the auxiliary ones just
mentioned, ‑‑‑ that dues not violate natural
law; that does not invade some right or other.
Yet, the
advocates of arbitrary legislation are continually practising the fraud of
pretending, that unless the legislature make the laws, the laws will not
be known. The whole object of the fraud is to secure to the government the
authority of making laws that never ought to be known.
Return
38a.
[*143] Kent says,
and truly, that "A great proportion of the rules and maxims, which
constitute the immense code of the common law, grew into use by gradual
adoption, and received the sanction of the courts of justice, without any
legislative act or interference. It was the application of the dictates of natural
justice and cultivated reason to particular cases." 1 Kent,
470. Return
39. [*145]
That is, these decisions are unauthorized, on the supposition that justice is
not necessarily law, unless the general requirement, made upon courts by
some of our constitutions, that they "administer right and justice,"
or some other requirement contained in them equivalent to that, be considered
as arbitrarily prescribing these principles as law, and thus authorizing the
decisions. But if these requirements, instead of being regarded, as they
doubtless ought to be, as an acknowledgment that "right and justice"
are law of themselves, be considered only as arbitrarily prescribing them as
law, it is at least an admission that the simple words "right and justice"
express, with legal accuracy, an infinite variety of fixed, definite, and
certain principles, that are properly applicable, as law, to the
relations of man with man. But wherever a constitution makes no such
requirement, the decisions are illegal, as being made without authority, unless
justice itself be law. Return
40. [*146] We add the following authorities to
those given in the note to chapter first, on the true nature and definition of
law: ‑‑‑ Cicero says, "There is a
true law, a right reason, conformable to nature, universal, unchangeable,
eternal. * * * * This law cannot be contradicted by any other law, and is not
liable either to derogation [*147] or abrogation. Neither the senate nor the
people can give us any dispensation for not obeying this universal law of justice.
* * * * It is not one thing at Rome, and another at Athens; one thing to-day,
and another to-morrow; but in all times and nations, this universal law must
forever reign, eternal and imperishable. * · · * He who obeys it not, flies
from himself and does violence to the very nature of man." ‑‑‑ Cicero's
Republic, Barham's Translation, B. 3, p. 270.
"This justice is the very foundation of lawful government ill
political constitutions." ‑‑‑ Same,
B. 3, p. 272.
"To secure to the citizens the benefits of an honest and
happy life, is the grand object of all political associations."
‑‑‑ Same, B. 4, p. 283.
"There is no employment so essentially royal as the
exposition of equity, which eomprises the true meaning of all laws."
‑‑‑ Same, B. 5, p. 290.
"According to the Greeks, the name of law implies an
equitable distribution of goods; according to the Romans, au equitable
discrimination between good and evil. The true definition of law should,
however, include both these characteristics. And this being granted as an
almost self-evident proposition, the origin of justice is to be sought in the
divine law of eternal and immutable morality." ‑‑‑ Cicero's
Treatise on the Laws, Barham's Translation, B. 1, p. 37.
"Of all the questions which our philosophers argue, there is
none which it is more important thoroughly to understand than this,
‑‑‑ that man is born for justice,
and that law and equity are not a mere establishment of opinion, but an
institution of nature. " ‑‑‑
Same, B. 1, p. 45.
"Nature hath
not merely given us reason, but right reason, and, consequently, that law,
which is nothing else than right reason, enjoining what is good, and forbidding
what is evil.
"Now, if nature hath given us law, she hath also given us
justice; for, as she has bestowed reason on all, she has equally bestowed the
sense of justice on all." ‑‑‑ Same,
B. 1, p. 48.
"Nature herself is the foundation of justice."
‑‑‑ Same, B. 1, p. 49.
"It is an absurd extravagance, in some philosophers, to
assert that all things are necessarily just, which are established by the civil
laws and the institutions of the people. Are, then, the laws of tyrants just,
simply because they are laws? If the thirty tyrants of Athens imposed certain
laws on the Athenians, and if these Athenians were delighted with these
tyrannical laws, are we, therefore, bound to consider these laws as just? For
my own part, I do not think such laws deserve any greater estimation than that
passed during our own interregnum, which ordained that the dictator should be
empowered to put to death with impunity, whatever citizens he pleased, without
hearing them in their own defence.
"There can be but one essential justice which cements
society, and one law which establishes this justice. This law is right reason,
which is the true rule of all commandments and prohibitions. Whoever neglects
this law, whether written or unwritten, is necessarily unjust and wicked.[*148]
"But if justice consist in submission to written laws and
customs, and if, as the Epicureans persist in affirming, everything must be
measured by utility alone, he who wishes to find an occasion of breaking such
laws and customs, will be sure to discover it. So that real justice remains
powerless if not supported by nature, and this pretended justice is overturned
by that very utility which they call its foundation." ‑‑‑
Same, B. 1, p. 55-6.
"If nature does not ratify law, all virtues lose their
sway." ‑‑‑ Same, B. 1,
p. 46.
"If the will of the people, the decrees of the senate, the
adjudications of magistrates, were sufficient to establish justice, the only
question would be how to gain suffrages, and to win over the votes of the
majority, in order that corruption and spoliation; and the falsification of
wills, should become lawful. But if the opinions and suffrages of foolish men
had sufficient weight to outbalance the nature of things, might they not
determine among them, that what is essentially bad and pernicious should
henceforth pass for good and beneficial? Or why should not a law, able to
enforce injustice, take the place of equity? Would not this same law be able to
change evil into good, and good into evil?
"As far as we are concerned, we have no other rule capable of
distinguishing between a good or a bad law, than our natural conscience and
reason. These, however, enable us to separate justice from injustice, and to
discriminate between the honest and the scandalous. For common sense has
impressed in our minds the first principles of things, and has given us a
general acquaintance with them, by which we connect with virtue every honorable
and excellent quality, and with vice all that is abominable and disgraceful.
"Now we must entirely take leave of our senses, ere we can
suppose that law and justice have no foundation in nature, and rely merely on
the transient opinions of men." ‑‑‑
Same, B. 1, p. 56-7.
"Whatever is just is always the true law; nor can this true
law either be originated or abrogated by any written enactments."
‑‑‑ Same, B. 2, p. 83.
"As the divine mind, or reason, is the supreme law, so it
exists in the mind of the sage, so far as it can be perfected in man. With
respect to civil laws, which differ in all ages and nations, the name of law
belongs to them not so much by right as by the favor of the people. For every
law which deserves the name of a law ought to be morally good and laudable, as
we might demonstrate by the following arguments. It is clear, that laws were
originally made for the security of the people, for the preservation of cities,
for the peace and benefit of society. Doubtless, the first legislators
persuaded the people that they would write and publish such laws only as should
conduce to the general morality and happiness, if they would receive and obey
them. Such were the regulations, which being settled and sanctioned, they
justly entitled laws. From which, we may reasonably conclude, that those who
made unjustifiable and pernicious enactments for the people, counteracted their
own promises and professions, and established anything rather than laws,
properly so called, since it is evident that the very signification of the word
law comprehends the essence and energy of justice and equity."
‑‑‑ Same, B. 2, p.
83-4.
"Marcus. If then, in the majority of nations, many
pernicious and mischievous enactments are made, as far removed from the law of
justice we have defined as the mutual engagements of robbers, are we bound to
call them laws? For as we cannot call the recipes of ignorant empirics, who
give poisons instead of medicines, the prescriptions of a physician, we cannot
call that the true law of the people, whatever be its name, if it enjoins what
is injurious, let the people receive it they will. For law is the just
distinction between right and wrong, conform- [*149] able to nature, the original
and principal regulator of all thins, by which the laws of men should be
measured, whether they punish the guilty, or protect the innocent.
"Quintus. I quite agree with you, and think that no
law but that of justice should either be proclaimed as a law, or enforced as a
law.
"Marcus. Then you regard as nullable and voidable, the
laws of Titius and Apuleius, because they are unjust.
"Quintus. You may say the same of the laws of Livius.
"Marcus. You are right; and so much the more, since a
single vote of the senate would be sufficient to abrogate them in an instant.
But that law of justice which I have explained can never be rendered obsolete
or inefficacious.
"Quintus. And, therefore, you require those laws of
justice the more ardently, because they would be durable and permanent, and
would not require those perpetual alterations which all injudicious enactments
demand." ‑‑‑ Same, B. 2,
p. 85--6.
"Long before
positive laws were instituted, the moral relations of justice were absolute and
universal." ‑‑‑ Montesquieu.
"All the tranquillity, the happiness, and security of the
human race, rests on justice; on the obligation of paying a regard to the
rights of others." ‑‑‑ Vattel,
B. 2, chap. 12, sec. 163.
"Justice is the basis of all society." ‑‑‑ Vattel,
B. 1, chap. 5, sec. 63.
Bacon says,
"There are in nature certain fountains of justice, whence all civil laws
are derived but as streams." ‑‑‑ Bacon's
Tract on Universal Justice.
"Let no man weakly conceive that just laws, and true policy,
have any antipathy, for they are like the spirits and sinews, that one moves
with the other." ‑‑‑ Bacon's
Essay on Judicature.
"Justice is the end of government. It is the end of civil
society." ‑‑‑ Federalist, _No.
51.
About bail our state
constitutions specially require of our courts that they administer "right
and justice" to every man.
The national constitution enumerates among its objects, the
establishment of "justice,"
and the security of "liberty."
Judge Story says, "To establish justice must forever be one
of the greatest ends , of every wise government; and even in arbitrary
governments it must, to a great extent, be practised, at least in respect to
private persons, as the only security against rebellion, private vengeance, and
popular cruelty. But in a free government, it lies at the very basis of all its
institutions. Without justice being freely, fully, and impartially
administered, neither our persons, nor our rights, nor our property, can be
protected." ‑‑‑ l Story's Com.
on Const., 463.
"It appears in our books, that, in many cases, the common law
will control acts of parliament, and sometimes adjudge them to be utterly void;
for when an act of parliament is against common right or reason, the common law
will control it, and adjudge such act to be void." ‑‑‑ Coke,
in Bonham's case; 4 Coke's Rep., part 8, p. 118.
Kent also, although he holds that, in
England, "the will of the legislature is the supreme law of the land, and
demands perfect obedience," yet says: "But while we admit this concision
of the English law, we cannot but admire the intrepidity and powerful sense of
justice which led Lord Coke, when Chief Justice of the King's bench, to
declare, as he did in Doctor Bonham's case, that the common law doth
control acts of parliament, and adjudges them void when against common right
and reason. The same sense of justice and freedom of opinion led Lord [*150]
Chief Justice Hobart, in Day vs. Savage, to insist that an act of
parliament, made against natural equity, as to make a man judge in his own
case, was void; and induced Lord Chief Justice Holt to say, in the case of the City
of London vs. Wood, that the observation of Lord Coke was not
extravagant, but was a very reasonable and true saying." ‑‑‑ 1
Kent, 448.
"A treaty made from an unjust and dishonest intention is
absolutely null, nobody having a right to engage to do things contrary to the
law of nature." ‑‑‑ Vattel, B.
2, chap. 12, sec. 161.
That definition which makes law to be "a rule of civil
conduct, prescribed by the supreme power of a state, commanding what its
subjects are to do, and prohibiting what they are to forbear," is
manifestly a false definition, inasmuch as it does not include the law of
nations. The law of nations has never been "prescribed" by any"
supreme power," that regards the nations as its "subjects," and
rules over them as other governments rule over individuals. Nations acknowledge
no such supreme power. The law of nations is, in reality, nothing else than the
law of nature, applicable to nations. Yet it is a law which all civilized
nations acknowledge, and is all that preserves the peace of nations; and no
definition of law that excludes so important a portion of the law of the world,
can reasonably be for a moment regarded as true. Return
41. [*154] The objection stated in the
text, to our present system of legislation, will not lie obviated in
principle, by assuming that the male adults are natural guardians of women
and children, as they undoubtedly are of children, and perhaps, also, in some
sense, of women. But if they are their natural guardians, they are their
guardians only for the purpose of protecting their rights; not for the
purpose of taking them away. Nevertheless, suppose, for the sake of the
argument, that the women and children are really and rightfully represented
through the male adults, the objection will still remain that the legislators
are chosen by a bare majority of the voters, (representing a bare majority of
the people;) and then, a bare majority of the legislators chosen constitute a
quorum; and a bare majority of this quorum [*155] make the laws. So that, even then, the actual law-makers
represent but little more than one eighth of the people.
If the
principle is to be acted upon, that the majority have a right to rule
arbitrarily, there is no legitimate way of carrying out that principle, but by
requiring, either that a majority of the whole people, (or of the voters,)
should vote in favor of every separate law, or by requiring entire unanimity in
the representative bodies, who actually represent only a majority of the
people.
But the principle is utterly false, that a majority, however
large, have any right to rule so as to violate the natural rights of any single
individual. It is as unjust for millions of men to murder, ravish, enslave,
rob, or otherwise injure a single individual, as it is for another single
individual to do it. Return
42.
[*155] Two things
are necessary to a good lawyer. 1. A knowledge of natural law. This
knowledge, indispensable to the peace and security of mankind, in their
dealings, intercourse, and neighborhood with each other, is possessed, in some
good measure, by mankind at large. 2. A knowledge of the rules of
interpreting the written law. These are few, simple, natural, reasonable,
just, and easily learned. These two branches of knowledge comprise
substantially all the science, and all "the reason," there are in the
law. I hope these considerations, in addition. to that of understanding the
constitution, may induce all, who read any portion of this book, to read with
patience this chapter on the rules of interpretation, however tedious it may
be. Return
43. [*155] In "The
Unconstitutionality of Slavery," the word laws, in this rule, was printed
law, through my inadvertence in copying the rule. The error was not dis- [*156]
covered until it was pointed out by Wendell Phillips. I am obliged to him for
the correction. A case might be supposed, in which the difference would be
important. But I am not aware that the correction affects any of the arguments
on which the rule has thus far been, or will hereafter be, brought to
bear; because, in construing the constitution by this rule, "the general
system of the laws" must be presumed to be "the general system of the
laws" authorized by the constitution itself, and not "the general system
of the laws" previously prevailing in the country, if the two systems
should happen to differ. The constitution being the supreme law, anything in
the constitutions or laws of the states to the contrary notwithstanding, those
constitutions and laws must be construed with reference to it; instead
of its being construed with reference to them, whenever the two may
appear to conflict.
Mr.
Phillips, however, seems to think the difference important to this discussion;
because he says "the general system of the law might refer to the
general system of law, as a science ;" whereas "the general system of
the laws clearly relates to the general spirit of the laws of this
nation, which is quite a different thing." But he here assumes the
very point in dispute, viz., that "the general spirit of the constitutional
laws of this nation, (which are, in reality, its only laws,) are
a very different thing" from "the general system of law, as a
science." So far as they relate to slavery, we claim that all our constitutional
laws are perfectly accordant with "the general system of law, as a
science," and this is the question to be determined.
That
"the general system of the laws," authorized by the constitution,
and relating to other subjects than slavery, is, for the most part, at least,
if not entirely, accordant with" law, as a science," Mr. Phillips
will probably not deny, whatever he may think of those it authorizes in
relation to slavery. But the rule of the court forbids that, in the matter of
slavery, any construction of the constitution be adopted, at variance with
"the general system of the laws" authorized by the constitution, on
all other subjects, unless such intention "be expressed with
irresistible clearness." "The general system of the laws,"
authorized by the constitution, on all other subjects than slavery, is a very
important guide for the interpretation of those clauses that have been claimed
for slavery. If this guide be followed, it extinguishes all pretended authority
for slavery ‑‑‑ instead of supporting
it, as Mr. Phillips' remark would imply. Return
43a.
[*161] The Supreme Court of the United States say: "The intention of the
instrument must prevail; this intention must be collected from its words." ‑‑‑ 12
Wheaton, 332.
"The intention of the legislature is to be searched for in
the words which the legislature has employed to convey it." ‑‑‑ 7
Cranch, 60.
Story says, "We must take it to be true, that the legislature
intend precisely what they say." ‑‑‑ 2
Story's Circuit Court Rep., 653.
Rutherforth says,
"A promise, or a contract, or a will, gives us a right to whatever the
promiser, the contractor, or the testator, designed or intended to make ours.
But his design or intention, if it is considered merely as an act of his mind,
cannot be known to any one besides himself. When, therefore, we speak of his
design or intention as the measure of our claim, we must necessarily be
understood to mean '.he design or intention which he has made known or
expressed by some outward mark; because, a design or intention which does not
appear, can have no more effect, or can no more produce a claim, than a design
or intention which does not exist.
"In like manner, the obligations that are produced by the
civil laws of our country arise from the intention of the legislator; not
merely as this intention is an act of the mind, but as it is declared or
expressed by some outward sign or mark, which makes it known to us. For the intention of the legislator, whilst
he keeps it to himself, produces no effect, and is of no more account, than if
he had no such intention. Where we have no knowledge, we can be under no
obligation. We cannot, therefore, be obliged to comply with his will, where we
do not know what his will is. And we can no otherwise know what his will is,
than by means of some outward sign or mark, by which this will is expressed or
declared." ‑‑‑ Rutherforth, B. 2,
chap. 7, p. 307-8. Return
43b.
[*162] This rule, that forbids us to go
beyond the words of the law, must not be understood as conflicting with the one
that allows us, in certain cases, to go out of an instrument to find the
meaning of the words used in the instrument. We may, in certain cases,
(not in all,) and under certain limitations as will hereafter be explained, go
out of an instrument to find the meaning of its words; but we can never
go beyond their meaning, when found. Return
43c.
[*163] Kent says, these rules "have been accumulated by the
experience, and ratified by the approbation, of ages." ‑‑‑
1 Kent, 461. Return
43d.
[*164] Vattel says, "The interpretation of every act, and of every
treaty, ought to be made according to certain rules proper to determine the
sense of them, such as the parties concerned must naturally have understood
when the act was prepared and accepted.
"As these rules are founded on right reason, and are
consequently approved and prescribed by the law of nature, every man, every
sovereign, is obliged to admit and follow them. If princes were to acknowledge
no rules that determined the sense in which the expressions ought to be taken, treaties
would be only empty words; nothing could be agreed upon With security, and it
would be almost ridiculous to place any dependence on the effect of
conventions." ‑‑‑ Vattel,
B. 2, chap. 17, sec. 268. Return
43e.
[*165] Blackstone says, "As to the subject matter, words are always
to be understood as having regard thereto." -- 1 Blackstone, 60.
"We ought always to give to expressions the sense most
suitable to the subject to the matter, to which they relate." ‑‑‑ Vattel,
B. 2., chap. 17, sec. 280.
Other authorities on this point are given in the note at the end
of this chapter. Return
43f.
[*170] It was, for example, the commonness, or rather the uniformity, with
which the word "free" had been used ‑‑‑ up
to the time the constitution was adopted ‑‑‑ to
describe persons possessed of political and other legal franchises, as
distinguished from persons not possessed of the same franchises, that made the
word "free" a technical one in the law. Return
43g.
[*173] "Terms of art, or technical terms, must be taken according to the
acceptation of the learned in each art, trade, and science." ‑‑‑ 1
Blackstone, 59.
"When technical words are used, they are to be understood in
their technical sense and meaning, unless the contrary clearly appears." ‑‑‑ 9
Pickering, 514.
"The words of a statute are to be taken in their natural and
ordinary significa- [*174] tion and import; and if technical words are used,
they are to be taken in a technical sense."-- 1 Kent, 461.
Lord Ellenborough says, "An agreement is to be
construed according to its sense and meaning, as collected in the first place
from the terms used in it, which terms are themselves to be understood in their
plain, ordinary, and popular sense, unless they have generally, in respect
to the subject matter, as by the known usage of trade or the like, acquired a
peculiar sense, distinct from the popular sense of the same words; or unless
the context evidently points out that they must, in tits particular instance,
and in order to effect the immediate intention of the parties to that contract,
be understood in some other special and peculiar sense." ‑‑‑ 4
East, 135; cited in Chitty on Contracts, 80.
Chitty adds, "The same rule applies
to the construction of acts of parliament," and cites several authorities.
"In the enactment of laws, when terms of art, or peculiar
phrases, are made use of, it must be supposed that the legislature have in view
the subject matter about which such terms or phrases are commonly
employed." ‑‑‑ Pickering,
261.
"If a statute make use of a word, the meaning of which is
well known at the common law, the word shall be understood in the same sense it
was understood at the common law." ‑‑‑ Bacon's
Abridg. Stat., I, 29.
"Technical terms, or terms proper to the arts and sciences,
ought commonly to be interpreted according m the definition given of them by
the masters of the art, the person versed in the knowledge of the art or
science to which the term belongs. I say commonly; for this rule is not so
absolute, that we cannot, or even ought not, to deviate from it, when we have
good reasons to do it; as, for instance, if it was proved that he who speaks in
a treaty, or in any other public piece, did not understand the art or science
from which he borrowed the term, that he knows not its force as a technical
word: that he has employed it in a vulgar sense, &c." ‑‑‑ Vattel,
B. 2, ch. 17, sec. 276.
"In things favorable," (" things favorable" he
defines to mean "things useful and salutary to human society,")
"the terms of art ought to be taken in the fullest extent they are capable
of; not only according to common use, but also as technical terms, if he who
speaks understands the art to which those terms belong, or if he conducts
himself by the advice of men who understand that art.
"But we ought not from this single reason, that a thing is
favorable, to take the terms in an improper signification; this is only
allowable to be done, to avoid absurdity, injustice, or the nullity of the act,
as is practised on every subject. For we ought to take the terms of an act in
their proper sense, conformable to custom, at least, if we have not very strong
reasons for deviating from it." ‑‑‑ Vattel,
B. 2. ch. 17, sec. 307.
"Where technical words are used, the technical meaning is to
be applied to them, unless it is repelled by the context. But the same
word often possesses a technical and common sense. In such a case the latter is
to be preferred, unless some attendant circumstance points clearly to the
former." ‑‑‑ 1 Story's
Comm. on Const., 438.
It will be observed that every one of these authorities, except
the single one from Story, gives the preference to the technical meaning, over
any of the other meanings which a word may have. The latter branch of
Story's rule gives the preference to the other meaning over the technical one.
Admitting, for the sake of the argument, that the latter branch of
Story's rule is [*175] correct, still the meaning of the word "free,"
in the constitution, is not thereby altered; because his rule admits that if
"some attendant circumstance points clearly to the technical
meaning," that meaning is to be adopted. Now every "attendant
circumstance" that can legally be taken into consideration,
"points clearly to the technical meaning " ‑‑‑ and
why? Because that meaning alone is consistent with justice, appropriate to the
subject matter of the instrument, consistent with the idea that all the parties
to the instrument could have reasonably agreed to it, (an essential point, as
will hereafter be seen,) consistent with all the general provisions of the
instrument. If the other meaning be adopted, all the general provisions of the
instrument are either contradicted outright, or have to be taken subject to
limitations and exceptions which are nowhere expressed, and which would not
only exclude one sixth of "the people of the United States" from the
operation of the constitution, established in their name, and for their
benefit, .but would actually sanction the greatest wrongs against them.
The result, then, is, not merely that "some attendant
circumstance," (although the rule admits that that would be sufficient to
turn the scale,) but that every attendant circumstance, points to the
technical meaning as the true one.
There is, also, in the same clause with the word
"free," one attendant circumstance which points clearly to the
technical meaning; and that is, that "all other persons" than the
free, are to be represented and taxed as three fifths units. Now there is no
propriety in representing or taxing slaves at all, as persons;
but there is a special propriety in representing and taxing aliens as three
fifths units, as will more fully appear hereafter.
But, in point of fact, Story's rule destroys itself, for the two
branches of it flatly contradict each other. The .first branch says,
that "where technical words are used, the technical meaning is to
be applied to them, unless it is repelled by the context." The
second branch says, that "the same word often possesses a technical and a
common sense. In such case the latter is to be preferred, unless some attendant
circumstance points clearly to the former."
It might be thought, on a careless reading of this rule, that
there was no contradiction in it; that the first branch of it referred to a
case where a word had only one meaning, and that a technical one; and
that the latter branch referred to a case where a word had two or more
meanings. But, in reality, there is probably not a single technical word in the
language, that has not role or more other meanings beside the technical one;
and it seems impossible there should be such a word, because the very meaning
of a technical word is a word which, in one profession, art, or trade, is used
in a somewhat different sense from what it is out of that profession, art, or
trade. But be this as it may, it is evident that the first branch of the rule
as much refers to a word having two meanings, as does the latter branch of it;
for it says "the technical meaning is to be applied, unless it be
repelled by the context." What is the inference from this proviso?
Why, plainly, that if the technical meaning "be repelled by the
context," the other meaning is to be adopted. This of course implies that
the word has another meaning which may be adopted if the context require it.
If, then, there are two meanings to the words in each case, the
two branches of this rule flatly contradict each other.
The first branch of the rule is given by Story, and is sustained
by all the other [*176] authorities cited. The second branch is Story's own,
sustained by nobody. Thr reader will judge which is sustained by reason.
But, in truth, Story has himself laid down the true rule more
accurately in another place, as follows:
"Where the words admit of two senses, each of which is
conformable to common usage, that sense is to be adopted which, without
departing from the literal import of the words, best harmonizes with the nature
and objects, the scope and design, of the instrument." ‑‑‑ l
Comm. on Const., 387.
One other authority, which has fallen under my eye, ought to be
noticed, lest it be misunderstood. It is this:
"The language of a statute is not to be construed according
to technical rules, unless such be the apparent meaning of the
legislature." -- 14 Mass. Rep., 92.
This language,
taken independently of the context, would convey the idea that the adoption of
the technical meaning was n matter of indifference; or perhaps even that
another meaning was rather to be preferred to the technical one.
But it will be seen on examining the report from which this
extract is taken, that the court did not at all intend to deny, but on the
contrary to admit, that the general rule was, that the technical
meaning was to be preferred; and that they only intended to assert that the
rule in favor of the technical meaning was not so imperative that it could not
be departed from in a case where "manifest justice" would be promoted
by the departure; for they plead, as a justification for departing from the
technical meaning, that in that particular case, "manifest
justice" will be subserved by a different construction.
Thus have been presented all the authorities on this point, that
happen now to be within my knowledge. Many more of the same kind might
doubtless be found. I am aware of no contrary one, unless the single one cited
from Story be so esteemed.
The conclusion, both from reason and authority, evidently is, that
the technical meaning is the preferable one in all cases, except where justice,
or some other legal object, will be promoted by adopting some other. Return
43h.
[*179] Vattel says, "Languages vary incessantly, and the
signification and force of words change with time. When an ancient act is to be
interpreted, we should know the common use of the terms at the time when it was
written." ‑‑‑ B. 2, ch.
17, sec. 272.
He also says, "In the interpretation of treaties, pacts, and
promises, we ought ,lot to deviate from the common use of language, at least,
if we have not very strong reasons for it." -- Same sec. Return
43i.
[*182] Contracts made by persons mentally incompetent to make reasonable
contracts, are not "obligatory." Return
43j.
[*182] Although the greatest discretion that is within the limits of reason, is
allowed to parties in making contracts, yet contracts manifestly unreasonable
are not held obligatory. And all contracts are unreasonable that purport to
surrender one's natural rights. Also, all contracts that purport to surrender
any one's natural rights, as property, for example, without any equivalent, or
reasonable motive. Return
43k.
[*183] Vattel says, "When the subject relates to things
favorable." ‑‑‑ (in sec. 302, he
defines "things favorable" to be things "useful and salutary to
human society,") --- "we ought to give the terms all the extent they
am capable of in common use; [*184] and if a term has many significations, the
most extensive ought to be performed" ‑‑‑ B.
2, ch. 17, sec. 307.
"In relation to things favorable, the most extensive
signification of the terms is more agreeable to equity than their confined
signification." ‑‑‑ Same.
"We should, in relation to things odious," -- (in
sec. 302, he defines "as odious, everything that, in its own
nature, is rather hurtful than of use to the human race,") ‑‑‑ "
take the terms in the most confined sense, and even, to a certain degree, may
admit the figurative, to remove the burdensome consequences of the proper and
literal sense, or what it contains that is odious." ‑‑‑ Same,
sec. 308, Return
44. [*188] Story says, "Who, then,
are the parties to this contract? * * * * Let the
instrument answer for itself. The people of the United States are the parties
to the constitution." ‑‑‑ l Story's
Comm. on Const., p. 355.
The Supreme Court of the United States says,
"The government (of the U. S.) proceeds directly from the people; is
'ordained and established ' in the name of the people." ‑‑‑ 4
Wheaton, 403.
"The
government of the Union is, emphatically and truly, a government of the people;
and in form and in substance it emanates from them. Its powers are granted by
them, and are to be exercised directly on them, and for their benefit."
‑‑‑ 4 Wheaton, 404, 405.
"The
constitution of the United States was ordained and established, not by
the United States in their sovereign capacities, but emphatically, as the
preamble of the constitution declares, by the people of the United
States." ‑‑‑ 1 Wheaton,
324.
Story,
commenting upon the words "We the people of the United States," says,
' We have the strongest assurances that this preamble was not adopted as a mere
[*189] formulary; but as a solemn promulgation of a fundamental fact, vital to
the character and operations of the government. The obvious object was to
substitute a government of the people for a confederacy of states."
‑‑‑ 1 Comm., p. 446.
Also,
"The convention determined that the fabric of American empire ought to
rest, and should rest, on the solid basis of the consent of the people. The
streams of national power ought to flow, and should flow, immediately from the
highest original fountain of all legitimate
authority. * * * And the uniform doctrine of the highest
judicial authority has accordingly been, that it was the act of the people, and
not the act of the states; and that it bound the latter aa subordinate to the
people." ‑‑‑ 1 Story's Comm.,
p. 447.
Kent says, "The government of the United States
was erected by the free voice and the joint will of the people of America, for
their common defence and general welfare." ‑‑‑ 1
Kent, 189.
Chief
Justice Jay said, "Every state constitution is a compact, made by and
between the citizens of the state to govern themselves in a certain manner; and
the constitution of the United States is likewise a compact, made by the people
of the United States to govern themselves, as to general objects, in a certain
manner." ‑‑‑ 2 Dallas,
419; cited by Story, 1 Comm., p. 317.
Mr.
Webster says, "It is the people's constitution, the people's government;
made for the people; made by the people; and answerable to the people. The
people of the United States have declared that this constitution shall be the
supreme law. We must either admit the proposition, or dispute their authority.
* * * We are all agents of the same supreme power, the people. The general
government and the state governments derive their authority from the same
source." ‑‑‑ Webster's
Speeches, vol. 1, p. 410.
Also, "I hold it to be a popular government,
erected by the people; those who administer it, responsible to the people; and
itself capable of being amended and modified, just as the people choose it
should be. It is as popular, just as truly emanating from the people, as the
state governments. It is created for one purpose; the state governments for
another. It has its own powers; they have theirs." ‑‑‑ Same,
p. 418.
Also, "This government is the independent
offspring of the popular will." ‑‑‑ Same,
419.
If the
constitution were not established by "the people," there is no
information given in the constitution, as to whom it was established by. We
must, of necessity, therefore, accept its own declaration, that it was
established by the people. And if we accept its declaration that it was established
by" the people," we must also accept its virtual declaration that it
was established by the whole people, for it gives no information of its being
established by one portion of the people, any mom than by another. No
separation can therefore be made between different portions of the people.
Return
45. Page
62, Second Edition. Return
46. By
Wendell Phillips. Return
47. [*199] Story says, "The
importance of examining the preamble, for the purpose of expounding the
language of a statute, has been long felt, and universally conceded in all
juridical discussions. It is an admitted maxim in the ordinary court of the
administration of justice, that the preamble of a statute is a key to open the
mind of the makers, as to the mischiefs which are to be remedied, and the objects
which are to be accomplished by the provisions of the statute. We find it laid
down in some of our earliest authorities in the common law, and civilians are
accustomed to a similar expression, cessante legis proemia, cessat et ipsa
lex. (The preamble of the law ceasing, the law itself also ceases.)
Probably it has a foundation in the exposition of every code of written law,
from the universal principle of interpretation, that the will and intention of
the legislature is to be regarded and followed. It is properly resorted to
where doubts or ambiguities arise upon the words of the enacting part; for if
they are clear and unambiguous, there seems little room for interpretation,
except in cases leading to an absurdity, or to a direct overthrow of the intention
expressed in the preamble.
"There
does not seem any reason why, in a fundamental law or constitution of
government, an equal attention should not be given to the intention of the
framers, as expressed in the preamble. And accordingly we find that it has been
constantly referred to by statesmen and jurists to aid them in the exposition
of its provisions." ‑‑‑ Story's
Comm. on Const., p. 443-4.
Story also
says, "Its true office is to expound the nature, and extent, and
application of the powers actually conferred by the constitution, and not
substantively to create them." ‑‑‑ Same,
445.
"Though
the preamble cannot .control the enacting part of a statute which in expressed
in clear and unambiguous terms, yet, if any doubt arise on the words of the
enacting part, the preamble may be resorted to, to explain
it." ‑‑‑ 7 Bacon's, Abr., 435,
note. 4 Term Rep., 793. 13 Vesey, 36. l5 Johnson, N. Y.
Rep., ll6.
"A
statute made pro bono publico (for the public good) shall be construed
in such manner that it may as far as possible attain the end
proposed." ‑‑‑ 7 Bacon's
Abr., 461.
The constitution of the United States avows itself
to be established for the public good ‑‑‑ that
is, for the good of "the people of the United States " ‑‑‑ to
establish justice and secure the blessings of liberty to themselves and their
posterity. It must of course" be construed in such manner that it may, as
far as possible, attain that end."
Story
says, "Was it not framed for the good of the people, and by the
people?" ‑‑‑ 1 Story's Comm.,
394.
Chief
Justice Jay dwells at length upon the authority of the preamble, as a guide for
the interpretation of the constitution. ‑‑‑ 2 Dallas, 419. Also Justice
Story, in his Commentaries on the Constitution, vol. 1, book 3, ch.
6. Return
48. [*200]
2 Cranch, 64. Return
49. [*200] The Supreme Court of
Mississippi say, referring to the claim of freedom, ses up before it, "Is
it not an unquestioned rule that, in matters of doubt, courts must lean in
favorem vitae et libertatis?" (in favor of life and liberty.) ‑‑‑ Harvey
Decker vs. Walker's Mississippi Reports, 36
I cite
this authority from Mr. Chase's argument in the Van Zandt case.
Return
50. [*202] This rule is fairly
applicable to the word free. The sense correlative with aliens is a
sense appropriate to the subject matter of the instrument; it accurately and
properly describes a class of persons, which the constitution presumes would
exist under it; it was, at the time, the received and technical sense of
the word in all instruments of a similar character, and therefore its presumptive
sense in the constitution; it is consistent with intentions reasonably
attributable to all the parties to the constitution; it is consistent
with natural right, with the preamble, the declared purpose of the
constitution, and with the general system of the laws established by the
constitution. Its legal meaning, in the constitution, was therefore
plain, manifest, palpable, and, at the time of its adoption, had no need of
interpretation. It needs interpretation now, only to expose the
fraudulent interpretation of the past; and because, in pursuance of that
fraudulent interpretation, usage hu Itow somewhat changed the received meaning
of the word. Return
51. [*207] Story says, "Are we at
liberty, upon any principles of reason or common sense, to adopt a restrictive
meaning which will defeat an avowed object of the constitution, when another
equally natural, and more appropriate to the subject, is before us?
" ‑‑‑ 1 Story's Comm., p.
445.
Dane says,
"With regard to the different parts of a statute, there is one general
rule of construction; that is, the construction of each and every part must be
made on a full view of the whole statute; and every part must have force and
effect, if possible; for the meaning of every part .is found in its
connection with other parts." ‑‑‑ 6
Dane, 598.
Vattel says, "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 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, nisi tota
lege perspecta, sana aliqua particula ejus proposita, iudicare, vel respondere."
(It is improper to judge of, or answer to, any one particular proposed in a
law, unless the whole law be thoroughly examined.) ‑‑‑ B.
2, ch. 17, sec. 285.
Also,
"The connection and relation of things themselves, serve also to discover
[*208] 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 do not manifestly appear, that, by the last clauses,
something is changed that went before." ‑‑‑ Same,
sec. 286.
The way
the advocates of slavery proceed in interpreting the constitution, is this.
Instead of judging of the meaning of the word free by its connection
with the rest of the instrument, they first separate that word entirely from
all the rest of the instrument; then, contrary to all legal rules, give it the
worst meaning it is under any circumstances capable of; then bring it back into
the instrument; make it the ruling word of' the instrument; and finally cut
down all the rest of the instrument so as to make it conform to the meaning
thus arbitrarily and illegally given to this one word free.
Return
52. [*212] No statute shall be
construed in such manner as to be inconvenient, or against
reason." ‑‑‑ Bacon's Abridg.,
465.
"Where
the construction of a statute is doubtful, an argument from convenience will
have weight." ‑‑‑ 3 Mass.,
221.
Ch. J.
Shaw says, "The argument from inconvenience may have considerable weight
upon a question of construction, where the language is doubtful; it is not to
be presumed, upon doubtful language, that the legislature intended to establish
a rule of action, which would be attended with inconvenience." ‑‑‑ 11
Pickering, 490.
Ch. J.
Abbott says, "An exposition of these statutes, pregnant with so much
inconvenience, ought not to be made, if they will admit of any other reasonable
construction." ‑‑‑ 3 Barnwell,
& A., 271.
"The
argument from inconvenience ia very forcible in the law, as often hath been
observed." ‑‑‑ Coke Lit., 383,
a. note. Return
53. [*213] The Supreme Court United
States say: "It is undoubtedly a well-established principle in the
exposition of statutes, that every part is to be considered, and the intention
of the legislature to be extracted from the whole. It is also true, that where great
inconvenience will result from a particular construction, that construction
is to be avoided, unless the meaning of the legislature be plain, in which case
it must be obeyed."--2 Cranch, 358.
"The
natural import of the words of any legislative act, according to the common use
of them, when applied to the subject matter of the act, is to be
considered as expressing the intention of the legislature; unless the
intention, so resulting from the ordinary import of the words, be repugnant to
sound, acknowledged principles of national policy. And if that intention be
repugnant to such principles of national policy, then the import of the words
ought to be enlarged or restrained so that it may comport with those
principles, unless the intention of the legislature be clearly and manifestly
repugnant to them." ‑‑‑ Opinion
of the Justices, including Parsons; 7 Mass., 523. Return
54. [*216] There is one short and
decisive answer to all the pretence that the slaveholders cannot be presumed to
have agreed to the constitutional, if it be inconsistent with slavery; and that
is, that if the slaveholders cannot be presumed to have agreed to it, then they,
and not the slaves, must be presumed to have been no parties to it, and
must therefore be excluded from all rights in it. The slaves can
certainly be presumed to have agreed to it, if it gives them liberty. And the
instrument must be presumed to have been made by and for those who could
reasonably agree to it. If, therefore, any body can be excluded from all rights
in it, on the ground that they cannot be presumed to have agreed to such an
instrument as it really is, it must be the slaveholders themselves.
Independently of this presumption, there is just as much authority, in the
constitution itself, for excluding slaveholders, as for excluding the slaves,
from all rights in it. And as the slaves are some ten or fifteen times more
numerous than the slaveholders, it is ten or fifteen times more important, on
legal principles, that they be included among the parties to the constitution, than
that the slaveholders should be. Return
55. [*218] In case Ex parte
Bollman and Swartout, Justice Johnson, of the Sup. Court U. S., said,‑‑‑
'' I am
far, very far, from denying the general authority of adjudications. Uniformity
in decisions is often as important as their abstract justice. (By no means.)
But I deny that a court is precluded from the right, or exempted from the
necessity, of examining into the correctness or consistency of its decisions,
or those of any other tribunal. If I need precedent to support me in this
doctrine, I will cite the example of this court, (Sup. Court U. S.) which, in
the case of the United Statem vs. Moore, February, 1805, acknowledged
that in the case of the United States vs. [*219] Sims, February, 1803,
it had exercised a jurisdiction it did not possess. Strange indeed would be the
doctrine that an inadvertency, once committed by a court, shall ever after
impose on it the necessity of persisting in its error. A case that cannot be
tested by principle is not law, and in a thousand instances have such cases
been declared so by courts of justice." ‑‑‑ 4
Cranch, 103.
"Nullius hominis authoritas tanturn apud vos valere debet,
ut mmeliora non sequeremur si quis attulerit." (The authority of no
man ought to weigh so much with us, that if ally one has offered anything
better, we may not follow it.) ‑‑‑ Coke
Lit., 383, a. note. Return
56. [*219] In Vaughn's Reports, p. 169,
70, the court say,‑‑‑
"The
second objection is, that the king's officers by usage have had in several
kings' times the duties of tonnage and poundage from wrecks.
"1.
We desired to see ancient precedents of that usage, but could see but one in
the time of King James, and some in the time of the last king; which are so new
that they are not considerable, (not worthy to be considered.)
"2.
Where the penning of a statute is dubious, long usage is a just medium to
expound it by; for jus et norma loquendi (the rule and law of speech) is
governed by usage. And the meaning of things spoken or written must be, as it
hath constantly been received to be by common acceptation.
"But
if usage hath been against the obvious meaning of an act of parliament, by the
vulgar and common acceptation of the words, then it is rather an oppression of
those concerned, than an exposition of the act, especially as the usage may be
circumstanced.
"As,
for instance, the customers seize a man's goods, under pretence of a duty
against law, and thereby deprive him of the use of his goods, until he regains
them by law, which must be by engaging in a suit with the king, rather than do
so he is content to pay what is demanded for the king. By this usage all the
goods in the land may be charged with the duties of tonnage and poundage; for
when the concern is not great, most men (if put to it) will rather pay a little
wrongfully, than free themselves from it overchargeably.
"And
in the present case, the genuine meaning of the words and purpose of the acts
is not according to the pretended usage, but against it, as hath been shewed;
therefore usage in this case weighs not." Return
57. [*220] The Supreme Court United
States say, "The intention of the legislature is to be searched for in the
words which the legislature has employed to convey it." ‑‑‑ 7
Cranch, 60.
Also,
"The intention of the instrument (the constitution) must prevail; this
intention must be collected from its words." ‑‑‑ 12
Wheaton, 332. Return
58. [*220] Story says, "We
must take it to be true, that the legislature intend precisely what they
say." ‑‑‑ 1 Story's C. C. Rep.,653.
Vattel says, "Much less is it
permitted, when the author of a piece has himself there made known his reasons
and motives, to attribute to him some secret reason, as the foundation to
interpret the piece contrary to the natural sense of the terms. Though he
really had the view attributed to him, if he has concealed it, and made known
others, the interpretation can only be founded upon these, (which he has made
known,) and not upon the views which the author has not expressed; we take for
true against him what he has sufficiently declared." ‑‑‑ B.
2, ch. 17, sec. 287.
Rutherforth says, "The safest ground for
us to stand upon, is what the writer himself affords us; when the legislator
himself has plainly declared the reason (intention) of the law in the body of
it, we may argue from thence with certainty." ‑‑‑ B.
2, ch. 7, p. 330.
Rutherford also says, "A promise, or
contract, or a will, gives us a right to whatever the promiser, the contractor,
or the testator, designed or intended to make ours. But his design or
intention, if it is considered merely as an act of his mind, cannot be known to
any one besides himself. When, therefore, we speak of his design or intention
as the measure of our claim, we must necessarily be understood to mean the
design or intention which he has made known or expressed by some outward mark;
because, a design or intention which does not appear, can have no more effects
or can no more produce a claim, than u design or intention which does not
exist.
"In
like manner, the obligations that are produced by the civil law, of our coun-
[*221] try arise from the intention of the legislator; not merely as this
intention is an act of the mind, but as it is declared or expressed by some
outward sign or mark, which makes it known to us. For the intention of the
legislator, whilst he keeps it to himself, produces no effect, and is of no
more account than if he had no such intention. Where we have no knowledge, we
can be under no obligation. We cannot, therefore, be obliged to comply with his
will, where we do not know what his will is. And we can no otherwise know what
his will is, than by means of some outward sign or mark, by which this will is
expressed or declared." ‑‑‑ B. 2,
chap. 7, p. 307. Return
59. [*221] All rules of construction
apply only to words that need to be construed; to those which are
capable of more than one meaning, or of a more extended or restricted sense,
and whose meanings in the law are therefore uncertain. Those words whose
meanings are plain, certain, and precise, are not allowed to be construed at all.
It is a fundamental maxim, as before cited, (under nde thirteenth,) that it is
not admissible to interpret what needs no interpretation. Return
60. [*221] 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 or vague expression 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 other of the like
kind." ‑‑‑ B. 2, ch.
17, sec. 284.
And
this is an universal rule with courts, to interpret the ambiguous words of an
instrument by those that are explicit. Return
61. [*222] It will not do to take
these, or any other rules, on trust from courts; for courts, although they more
generally disregard, or keep out of sight, all rules which stand in the way of
any unlawful decisions which they are determined to make, can yet not very
unfrequently lay down false rules to accomplish their purposes. For these
reasons, only those of their rules that are plainly adapted to promote
certainty and justice, are to be relied on. Return
62. [*226] Story says, "In
construing the constitution of the United States, we are, in the first
instance, to consider what are its nature and objects, its scope and design, as
apparent from the structure of the instrument, viewed as a whole, and also
viewed in its component parts. Where its words are plain, clear, and
determinate, they require no interpretation; and it should, therefore, be
admitted, if at all, with great caution, and only from necessity, either to
escape some absurd consequence, or to guard against some fatal evil. Where
the words admit of two senses, each of which is conformable to common usage,
that sense is to be adopted, which, without departing from the literal import
of the words, best harmonizes with the nature and objects, the scope and
designs, of the instrument. Where the words are unambiguous, but the
provision may cover more or less ground, according to the intention, which is
subject to conjecture; or where it may include in its general terms more or
less than might seem dictated by the general design, as that may be gathered
from other parts of the instrument, there is much more room for controversy;
and, the argument from inconvenience will probably have different influences
upon different minds. Whenever such questions arise, they will probably be
settled, each upon its own peculiar grounds; and whenever it is a question of
power, it should [*227] be approached with infinite caution, and affirmed only
upon the most persuasive reasons. In examining the constitution, the antecedent
situation of the country, and its institutions, the existence and operations of
the state governments, the powers and operations of the confederation, in
short, all the circumstances which had a tendency to produce or to obstruct its
formation and ratification, deserve a careful attention. Much, also, may be
gathered from contemporary history, and contemporary interpretation, to aid us
in just conclusions.
"It
is obvious, however, that contemporary interpretation must be resorted to with
much qualification and reserve. In the first place, the private
interpretation of any particular man, or body of men, must manifestly be open
to much observation. The constitution was adopted by the people of the United
States; and it \vas submitted to the whole, upon a just survey of its
provisions, as they stood in the text itself. In different states, and in
different conventions, different and very opposite objections are known to have
prevailed; and might well be presumed to prevail. Opposite interpretations, and
different explanations of different provisions, may well be presumed to have
been presented in different bodies, to remove local objections, or to win local
favor. And there can be no certainty, either that the different state
conventions, in ratifying the constitution, gave the same uniform
interpretation to its language, or that, even in a single state convention, the
same reasoning prevailed, with a majority, much less with the whole, of the
supporters of it. In the interpretation of a state statute, no man is
insensible of the extreme danger of resorting to the opinions of those who
framed it, or those who passed it. Its terms may have differently impressed
different minds. Some may have implied limitations and objects, which others
would have rejected. Some may have taken a cursory view of its enactments, and
others have studied them with profound attention. Some may have been governed
by a temporary interest or excitement, and have acted upon that exposition
which most favored their present views. Others may have seen, lurking beneath
its text, what commended it to their judgment, against even present interests.
Some may have interpreted its language strictly and closely; others, from a
different habit of thinking, may have given it a large and liberal meaning. It
is not to be presumed, that, even in the convention which framed the
constitution, from the causes above mentioned, and other causes, the clauses
were always understood in the same sense, or had precisely the same extent of
operation. Every member necessarily judged for himself; and the judgment of
no one could, or ought to be, conclusive upon that of others. The known
diversity of construction of different parts of it, as well as the mass of its
powers, in the different state conventions; the total silence upon many
objections, which have since been started; and the strong reliance upon others,
which have since been universally abandoned, add weight to these suggestions. Nothing
but the text itself was adopted by the people. And it would certainly be a
most extravagant doctrine to give to any commentary then made, and, a
fortiori, to any commentary since made under a very different posture of
feeling and opinion, an authority which should operate an absolute limit upon
the text, or should supersede its natural and just construction.
"Contemporary
construction is properly resorted to, to illustrate and confirm the text, to
explain a doubtful phrase, or to expound an obscure clause; and in proportion
to the uniformity and universality of that construction, and the known ability
and talents of those by whom it was given, is the credit to which it is
entitled. It can never abrogate the text; it can never fritter await its
obvious sense; it can never narrow down its true limitations; it can never
enlarge its natural boundaries. We shall have abundant reason hereafter to
observe, when we enter upon the analysis of the particular clauses of the
constitution, how many loose interpretations and plausible conjectures were
hazarded at an early period, which have since silently died away, and are now
retained in no living memory, as a topic either of [*228] praise or blame, of
alarm or of congratulation. ‑‑‑ 1 Story's
Com. on the Const. pp. 387 to 392.
Story makes the following caustic comments upon Mr.
Jefferson's rules of interpretation. They are particularly worthy the attention
of those modern commentators, who construe the constitution to make it sanction
slavery. He says, ‑‑‑
"Mr.
Jefferson has laid down two rules, which he deems perfect canons for the
interpretation of the constitution. [* 4 Jefferson's Correspondence, 373, 391,
392, 396.] The first is, ' The capital and leading object of the constitution
was, to leave with the states all authorities which respected their own
citizens only, and to transfer to the United States those which respected
citizens of foreign or other states; to make us several as to ourselves, but
one as to all others. In the latter case, then, constructions should lean to
the general jurisdiction, if the words will hear it; and in favor of the states
in the former, if possible to be so construed.' Now, the very theory on which
this canon is founded, is contradicted by the provisions of the constitution
itself. In many instances, authorities and powers are given, which respect
citizens of the respective states, without reference to foreigners, or the
citizens of other states. [* 4 Jefferson's Correspondence, 391, 392, 396.] But
if this general theory were true, it would furnish no just rule of
interpretation, since a particular clause might form an exception to it; and,
indeed, every clause ought, at all events, to be construed according to its
fair intent and objects, as disclosed in its language. What sort of rule is
that, which, without regard to the intent or objects of a particular clause,
insists that it shall, if possible, (not if reasonable,) be
construed in favor of the states, simply because it respects their citizens?
The second canon is: 'On every question of construction (we should) carry
ourselves back to the time when the constitution was adopted; recollect the
spirit manifested in the debates; and instead of trying what meaning may be
squeezed out of the text, or invented against it, conform to the probable one
in which it was passed.' Now, who does not see the utter looseness and
incoherence of this canon? How are we to know what was thought of particular
clauses of the constitution at the time of its adoption? In many cases, no
printed debates give any account of any construction; and where any is given,
different persons held different doctrines. Whose is to prevail? Besides, of
all the state conventions, the debates of five only are preserved, and these
very imperfectly. What is to be done as to the other eight states? What is to
be done as to the eleven new states, which have come into the Union under
constructions, which have been established against what some persons may deem
the meaning of the framers of it? How are we to arrive at what is the most
probable meaning? Are Mr. Hamilton, and Mr. Madison, and Mr. Jay, the
expounders in the Federalist, to be followed? Or are others of a different
opinion to guide us? Are we to be governed by the opinions of a few, now dead,
who have left them on record? Or by those of a few, now living, simply because
they were actors in those days, (constituting not one in a thousand of those
who were called to deliberate upon the constitution, and not one in ten
thousand of those who were in favor or against it, among the people)? Or are we
to be governed by the opinions of those who constituted a majority of those who
were called to act on that occasion, either as framers of, or voters upon, the
constitution? If by the latter, in what manner can we know those opinions? Are
we to he governed by the sense of a majority of a particular state, or of all
of the United States? If so, how are we to ascertain what that sense was? Is
the sense of the constitution to be ascertained, not by its own text, but by
the 'probable meaning,' to be gathered by conjectures from scattered documents,
from private papers, from the table-talk of some statesmen, or the jealous
exaggerations of others? Is the constitution of the United States to be the
only instrument, which is not to be interpreted by what is written, but by
probable guesses, aside from the text? What [*229] would be said of
interpreting a statute of a state legislature, by endeavoring to find out, from
private sources, the objects and opinions of every member; how every one
thought; what he wished; how he interpreted it? Suppose different persons
had different opinions, what is to be done? Suppose different persons are not
agreed as to c the probable meaning ' of the framers or of the people, what
interpretation is to followed? These, and many questions of the same sort,
might be asked. It is obvious, that there can he no security to the people
in any constitution of government, if they are not to judge of it by the fair
meaning of the words of the text; but the words are to be bent and broken by
the 'probable meaning' of persons, whom they never knew, and whose opinions,
and means of information, may be no better than their own? The people adopted
the constitution, according to the words of the text in their reasonable
interpretation, and not according to the private interpretation of any
particular men. The opinions of the latter may sometimes aid us in arriving
at just results, but they can never be conclusive. The Federalist denied that
the president could remove a public officer without the consent of the senate.
The first congress affirmed his right by a mere majority. Which is to be
followed?" ‑‑‑ 1 Story's Com.
on Const., 390, 392, note.
Story says,
also," Words, from the necessary imperfection of all human language,
acquire different shades of meaning, each of which is equally appropriate, and
equally legitimate; and each of which recedes in a wider or narrower degree
from the others, according to circumstances; and each of which receives from
its general use some indefiniteness and obscurity, as to its exact boundary and
extent. We are, indeed, often driven to multiply commentaries from the
vagueness of words in themselves; and, perhaps, still more often from the
different manner in which different minds are accustomed to employ them. They
expand or contract, not only from the conventional modifications introduced by
the changes of society, but also from the more loose or more exact uses, to
which men of different talents, acquirements, and tastes, from choice or
necessity, apply them. No person can fail to remark the gradual deflections in
the meaning of words, from one age to another, and so constantly is this
process going on, that the daily language of life, in one generation, sometimes
requires the aid of a glossary in another. It has been justly remarked, that no
language is so copious, as to supply words and phrases for every complex idea;
or so correct, as not to include many equivocally denoting different ideas.
Hence it must happen, that, however accurately objects may be discriminated in
themselves, and however accurately the discrimination may be considered, the
definition of them may be rendered inaccurate by the inaccuracy of the terms in
which it is delivered. We must resort, then, to the context, and shape the
particular meaning so as to make it fit that of the connecting words, and agree
with the subject matter." ‑‑‑ 1
Story's Com., 437.
Ch. J.
Marshall, speaking for the Sup. Court United States, says, "The spirit of
an instrument, especially of a constitution, is to be respected not less than
its letter, yet the spirit is to be collected chiefly from its words. It would
be dangerous in the extreme to infer from extrinsic circumstances, that a case
for which the words of an instrument expressly provide, shall be exempted from
its operation. Where words conflict with each other, where the different
clauses of an instrument bear upon each other, and would be inconsistent unless
the natural and common import of words be varied, construction becomes
necessary, and a departure from the obvious meaning of words is
justifiable." ‑‑‑ 4 Wheaton,
202.
Ch. J.
Taney, giving the opinion of the Supreme Court of the United States, says,
"In expounding this law, the judgment of the court cannot, in any degree,
be influenced by the construction placed upon it by individual members of
congress in the debate which took place on its passage, nor by the motives or
reasons assigned by them for supporting or opposing amendments that were
offered. The law, as it is passed, is the will of the majority of both houses,
and the only mode in which that [*230] will is spoken, is in the act itself;
and we must gather their intention from the language there used, comparing it,
when any ambiguity exists, with the laws upon the same subject, and looking, if
necessary, to the public history of the times in which it was
passed." ‑‑‑ 3 Howard, 24.
Coke says, "The words of an act of
parliament must be taken in a lawful and rightful sense." ‑‑‑ Coke
Lit., 381, b.
Also,
"The surest construction of a statute is by the rule and reason of the
common law." ‑‑‑ Same, 272,
b.
"Acts of parliament are to be so construed as
no man that is innocent, or free from injury or wrong, be by a literal
construction punished or endamaged." ‑‑‑ Same,
360, a.
"When
the construction of any act is left to the taw, the law, which abhorreth injury
and wrong, will never so construe it, as it shall work a
wrong." ‑‑‑ Same, 42, a.
"It
is a maxim in law, that the construction of a law shall not work am
injury." ‑‑‑ Same, 183,
a.
"The
rehearsal or preamble of the statute is a good mean to find out the meaning of
the statute, and as it were a key to open the understanding
thereof." ‑‑‑ Same, 79, a.
"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, for that best expresseth the
meaning of the makers." ‑‑‑ Same,
381, b.
"If
the words of a statute are obscure, they shall be expounded most strongly for
the public good." ‑‑‑ Plowden,
82.
"It
is most reasonable to expound the words which seem contrary to reason,
according to good reason and equity." ‑‑‑ Same,
109.
"Such
construction ought to be made of acts of parliament as may best stand with
equity and reason, and mostly avoid rigor and mischief." ‑‑‑ Same,
364.
"The
judges took the common law for their guide, which is a master in exposition,
the reason whereof they pursued as near as they could." ‑‑‑ Same,
364.
"Words
of a statute ought not to be interpreted to destroy natural
justice." ‑‑‑ Viner's Abridg.
Constr. of Stat., sec. 156.
Blackstone's rules of interpretation are as
follows:
"The
fairest and most rational method to interpret the will of the legislator, is by
exploring his intentions at the time when the law was made, by signs the
most natural and probable. And these signs are either the words, the context,
the subject matter, the effects and consequence, or the spirit or reason of the
law. Let us take a view of them all.
"1.
Words are generally to be understood in their usual and most known
significations; not so much regarding the propriety of grammar as their general
and popular use." * * *
"Terms
of art, or technical terms, mast be taken according to the acceptation of the
learned in each art, trade, or science." * * *
"2.
If words happen to be still dubious, we may establish their meaning by the context;
with which it may be of singular use to compare a word or sentence, whenever
they are ambiguous, equivocal, or intricate. Thus the proem, or preamble, is
often called in to help the construction of an act parliament." * * *
"3.
As to the subject matter, words are, always to be understood as having
regard thereto; for that is always supposed to be in the eye of the legislator,
and all his expressions directed to that end." * * *
"4.
As to the effects and consequence, the rule is, that where words bear
either some, or a very absurd signification, if literally understood, we must a
little deviate from the received sense of them." * * *
"5.
But lastly, the most universal and effectual way of discerning the true mean-
[*231] ing of a law, where the words
are dubious, is by considering the reason and spirit of it; or the cause which
moved the legislator to enact it. For when this reason ceases, the law itself
ought likewise to cease with it." * * * ‑‑‑ 1
Blackstone, 55, 60.
Blackstone (1, 59) also lays it down as being
"Contrary to all true forms of reasoning, to argue from particulars to
generals." Yet this is the universal mode of reasoning among those who
hold slavery to be constitutional. Instead of reasoning from generals to
particulars, they reason from particulars to generals. For example. Instead of
judging of the word "free" by reference to the rest of the
instrument, they judge of the whole instrument by reference to the word
"free." They first fix the meaning of the word "free," by assuming
for it, in defiance of the rest of the instrument, and of all legal rules, the
worst possible meaning of which it is causable, simply on the illegal grounds
that the slaveholders cannot be presumed to have been willing to do justice,
but that all the rest of the country can be presumed willing to do injustice;
and they then limit, bend, and break all the rest of the instrument to make it
conform to that meaning. It is only by such a process as this that the
constitution is ever made to sanction slavery.
"The
constitution is law, the people having been the legislators. And the
several statutes of the commonwealth, enacted pursuant to the constitution, are
law, the senators and representatives being the legislators. But the provisions
of the constitution, and of any statute, are the intentions of the legislature
thereby manifested. These intentions are to be ascertained by a reasonable
construction, resulting from the application of correct maxims, generally
acknowledged and received.
"Two
of these maxims we will mention. That the natural import of the words of any
legislative act, according to the common use of them, when applied to the
subject matter of the act, is to be considered as expressing the intention of
the legislature unless the intention, so resulting from the ordinary import of
the words be repugnant to sound, acknowledged principles of national policy.
And if that intention be repugnant to such principles of national policy, then
the import of the words ought to be enlarged or restrained, so that it may
comport with those principles; unless the intention of the legislature be
clearly and manifestly repugnant to them." ‑‑‑ Opinion
of the justices, Parsons, Sewalll, and Parker,
7 Mass., 524.
Chief
Justice Parker says, "I have always understood that it was right and
proper to consider the whole of a statute, and the preamble, and the probable
intention of the legislature, in order to ascertain the meaning of any
particular section; and that this mode of interpretation is justifiable, even
where the words of the section itself may be unambiguous. Certainly if one
section, however, explicit its germs, if taken literally, would contravene the
general object of the statute, it should be restrained so as to conform to that
object." ‑‑‑ 1 Pickering,
258.
"It
is unquestionably a well-settled rule of construction, that when words are not
precise and clear, such construction will be adopted as shall appear most
reasonable, and best suited to accomplish the objects of the statute; and where
any particular construction would lead to an absurd consequence, it will be
presumed that some exception or qualification was intended by the legislature,
to avoid such a conclusion." ‑‑‑ 24
Pickering, 370.
"When
the meaning of any particular section or clause or a statute is questioned, it
is proper, no doubt, 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, and the intention of the legislature might be debated. And if, upon
examination, the general meaning and object of the statute should be found
inconsistent with the literal import of any particular clause or section, such
clause or section must, if possible, he construed according to the spirit of
the act." ‑‑‑ l Pickering,
250.
The
Supreme Court of the United States say, "It is undoubtedly a
well-established principle in the exposition of statutes, that every part is to
he considered, and the [*232] intention of the legislature to he extracted from
the whole. It is also true that where great inconvenience will result from a
particular construction, that construction is to be avoided; unless the meaning
of the legislature be plain, in which case it must be obeyed." ‑‑‑ 2
Cranch, 358.
"When
the words are not explicit, the intention is to be collected from the context,
from the occasion and necessity of the law, from the mischief felt, and the
remedy in view; and the intention is to be taken or presumed, according to what
is consonant to reason and good discretion. These rules, by which the sages of
law, according to Plowden, have ever been guided in seeking for the intention
of the legislature, are maxims of sound interpretation, which have been
accumulated by the experience, and ratified by the wisdom of
ages." ‑‑‑ Kent, 61.
Kent
declares the rule of the English courts to be this: "They will not readily
presume, out of respect and duty to the lawgiver, that any very unjust
or absurd consequence was within the contemplation of the law. But if it should
he too palpable in its direction to admit of but one construction, there
is no doubt, in the English law, as to the binding efficacy of the
statute." ‑‑‑ 1 Kent, 447.
This rule
implies that if a statute be susceptible of more than "one
construction," the just or reasonable one must be preferred to"any
very unjust or absurd one."
Kent also says, "Statutes are
likewise to be construed in reference to the principles of the common law;"
(which, in vol. 1, p. 470, he describes as being, in great part, but "the
dictates of natural justice and cultivated reason;") "for it is
not to be presumed the legislature intended to make any innovation upon the
common law, further than the case absolutely required. This has been the
language of the courts in every age, and when we consider the constant,
vehement, and exalted eulogy which the ancient sages bestowed upon the common
law, as the perfection of reason, and the best birthright and noblest
inheritance of the subject, we cannot be surprised at the great sanction given
to this rule of construction." ‑‑‑ 1
Kent, 463.
Rutherford says, "All civil laws, and
all contracts in general, are to be so construed, where the words are of
doubtful meaning, as to make them produce no other effect but what is
consistent with reason, or with the law of nature" ‑‑‑ B.
2, ch. 7, p. 327.
"Lord
Coke has laid it down as a general rule, that where words may have a double
intendment, and the one standeth with law and right, and the other is wrongful
and against law, the intendment which standeth with law shall be
taken." ‑‑‑ Co. Lit., 42,
a. 6, 183, a. Cited also in Pothier.
"When
the terms of a contract are capable of two significations, we ought to
understand them in the sense which is most agreeable to the nature of the
cataract." ‑‑‑ Pothier on
Contracts, part 1, ch. 1, art. 7, rule 3.
The
Supreme Court of the United States say, "An act of congress ought never to
be construed to violate the law of nations," (or the law of nature, they
might have said, for the same reason, for the two are substantially synonymous
in principle,) "if any other possible construction
remains." ‑‑‑ 2 Cranch, 64.
Parsons,
Chief Justice, says, "It is always to be presumed that the legislature
intend the most beneficial construction of their acts, when the design of them
is not apparent." ‑‑‑ 4 Mass.,
537.
"Statutes
are not to be construed as taking away a common law right, unless the intention
is manifest." ‑‑‑ 4 Mass.,
473.
"It
is an established rule, that a statute is not to be construed so as to repeal
the common law, unless the intent to alter it is clearly
expressed." ‑‑‑ 9 Pickering,
514.
"Laws
are construed strictly to save a tight, or avoid a penalty; and liberally to
give a remedy, or effect an object declared in the law." ‑‑‑ 1
Baldwin, 316.
"Statutes
are expounded by the rules and reasons of the common law; and though the words
of a statute be general, yet they shall he specially construed to avoid an
apparent injury." ‑‑‑ 6 Dane,
588. [*233]
"This
policy, founded in manifest justice, ought to be enforced in this case, if the
several laws in the statute-book, or any one of them, will admit of a
reasonable construction to this effect." ‑‑‑ 14
Mass., 92.
"No
statute ought to be so construed as to defeat its own end; nor so as to operate
against reason; nor so as to punish or damnify the innocent; nor so as to delay
justice." ‑‑‑ 6 Dane, 596.
"The
best construction of a statute is to construe it as near to the rule and reason
of the common law as may be, and by the course which that observes ill other
cases." ‑‑‑ Bacon's Abr. Stat.,
I. 32.
Lord Coke,
cited by Chief Justice Abbott, says, "Acts of parliament are to be so
construed, as no man that is innocent, or free from injury, or wrong, be by a
literal construction punished or endamaged." ‑‑‑ 3
Barnwell & A. 271.
"When
any words or expressions in a writing are of doubtful meaning, the first rule
in mixed interpretation is to, give them such a sense as is agreeable to the
subject matter of which the writer is treating. For we are sure on the one hand
that this subject matter was in his mind, and can on the other hand have no
reason for thinking that he intended anything which is different from it, and
much less that he intended anything which is inconsistent with
it." ‑‑‑ Rutherforth, b. 2,
ch. 7, p. 323.
"The
interpretation or construction of the constitution is as much a judicial act,
and requires the exercise of the same legal discretion, as the interpretation
of a law." ‑‑‑ 1 Kent, 449.
"But
we should particularly regard the famous distinction of things favorable,
and things odious." ‑‑‑ Vattel,
B. 2, ch. 17, sec. 300.
"The precise point of the will of the legislature,
or of the contracting powers, is what ought to be followed; but if their
expressions are indeterminate, vague, or susceptible of a more or less
extensive sense, ‑‑‑ if this precise
point of their intention in the particular case in question cannot be
discovered and fixed, by other rules of interpretation, it should be presumed,
according to the laws of reason and equity." ‑‑‑ Same.
"All
the things which, without too much burthening any one person in particular, are
useful and salutary to human society, ought to be reckoned among the favorable
things. For a nation is already under a natural obligation with respect to
things of this nature; so if it has in this respect entered into any particular
engagements, we run no risk in giving these engagements the most extensive
sense they are capable of receiving. Can we be afraid of doing violence to
equity by following the law of nature, and in giving the utmost extent to
obligations that are for the common advantage of mankind? Besides, things useful
to human society, on this account, tend to the common advantage of the
contracting powers, and are consequently favorable. Let us, on the contrary, consider
as odious everything that, in its own nature, is rather hurtful than of use to
the human race." ‑‑‑ Same,
sec. 302.
"When
the legislature, or the contracting powers, have not expressed their will in
terms that are precise and perfectly determinate, it is to be presumed that
they desire what is most equitable." ‑‑‑ Same,
sec. 307.
"We favor equity, and fly from what is odious,
so far as that may be done without going directly contrary to the tenor of the
writing, and without doing violence to terms." ‑‑‑ Same,
sec. 308.
[*
Assuming that the preceding principles of interpretation are correct, it may be
allowable, on account of the importance of the subject, and the contrary
opinions which appear to prevail, to apply them to another clause of the
constitution than those claimed for slavery.]
[*234]
The
constitution declares that "the congress shall have power to declare
war."
This
power, unqualified in its terms, would, if taken literally, and independently
of the declared objects of this and all the other powers granted to the
government, give congress authority to declare war for any cause whatever, just
or unjust, for reasons the most frivolous and wicked, as well as for the most
important and necessary purposes of self-preservation. Yet such is not the
power that is actually granted. All the principles of interpretation before
laid down, requiring a construction consistent with justice, and prohibiting
the contrary, limit this power to cases of just war; war that is necessary for
the defence and enforcement of rights.
The
objects of the powers granted to congress are "to establish justice,"
"secure liberty," "provide for the common defence,"
&c.; and the powers are to be construed with reference to the
accomplishment of these objects, and are limited by them. Congress, therefore,
have no constitutional authority to make wars of aggression and conquest. And
all acts of congress, of that nature, are unconstitutional.
Law-books
abound with cases in which general words are restrained to such particular
meanings as are consistent with justice and reason. And the rule is well
established that general words are always to be thus restrained, unless there
be something in the context to forbid it.
"A
thing which is within the letter of the statute is not within the statute,
unless it be within the intention of the makers." ‑‑‑ 15
Johnson, 381; 3 Cowen, 92; 1 Blackstone, 60-61; 3 Mass.,
540; 5 Mass., 382; 15 Mass., 206; Bac. Abr. Stat., I., 45.
Was it the intent of "the people of the United
States" to authorize their government to make wars of aggression and
conquest? Their intention must be collected from their words, but their words
must always be taken in a sense consistent with justice, and in no other, if
the words are capable of a just meaning. "War" may be made for just,
and for unjust purposes. But as two conflicting intentions cannot be attributed
to the same provision, the just intention must be preferred to the unjust one.
The preamble, also, as we have seen, shows the object of this power to be
"to secure liberty," and "provide for the common defence."
A good object, and a sufficient object, being thus apparent, and being also
specially declared in the preamble, no other can be attributed, and the power
is consequently limited to that object. [*Story says, "The true office of the preamble is to expound
the nature, and extent, and application of the powers actually conferred by the
constitution." ‑‑‑ 1 Story's
Com. on Const., 445]
Plowden
says, "And the judges of the law in all times past have so far pursued the
intent of the makers of statutes, that they have expounded acts, which were
general in words, to be but particular, when the intent was
particular." ‑‑‑ Plowden,
204.
Vattel says, "We limit a law or a
promise contrary to the literal signification of the terms, by regulating our
judgment by the reason of that law, or that promise." ‑‑‑ Vattel,
B. 2, ch. 17,sec. 292.
Also,"The
restrictive interpretation takes place, when a case is presented in which the
law or the treaty, according to the rigor of the terms, lead to something
unlawful. This exception must then be made, since nobody can promise or ordain
what is unlawful. For this reason, though assistance has been promised to an
ally in all his wars, no assistance ought to be given him when he undertakes
one that is manifestly unjust." ‑‑‑ Same,
sec. 293.
Also,"
We should, in relation to things odious," (that is, "everything that
in its own nature is rather hurtful than of use to the human race,")
"take the terms in the most confined sense." ‑‑‑ Same,
sec. 308.
The
Supreme Court of the United States, also, say, "An act of congress,"
(and [*235] the same reason applies to the constitution,) "ought never to
be construed to violate the law of nations, if any other possible construction
remains." ‑‑‑ 2 Cranch, 64.
To
understand the force of this last rule, some definition of the law of nations
is necessary. The best general definition of it is, that which considers
nations as individuals, and then applies the same principles of natural law to
them, that are applicable to individuals. This rule, however, requires to be
modified by being made more lenient to nations, in certain cases, than to
individuals. For example; the whole people of a nation are not to have war made
upon them, for wrongs done by their government, any sooner or further than is
necessary to compel them to redress those wrongs as soon as, in the nature of
things, they (the people) can do it, by changing, or operating upon their
government. The reasons are these: The people, by instituting government, or
appointing certain individuals to administer it, do not authorize those individuals
to commit any wrongs against foreign nations. They are not, therefore,
themselves culpable for those wrongs. When, then, such wrongs are committed,
all that the people can be required to do, is that they dismiss the wrong doers
from power, and appoint others who will redress the injuries committed. And to
do this, the people must be allowed such time as is reasonable and necessary,
which will be more or less, according to circumstances. But ample time must be
sure to be allowed in all cases, before war against them can be lawful.
2. In
controversies as to their respective rights and wrongs, nations are each
entitled to longer time for investigating and determining their rights than
individuals, because it is not in the nature of things possible that a whole
people can investigate such questions with the same promptness that individuals
can investigate their respective rights in their private controversies; and a
whole people are not to be held liable, by having war made upon them, until
they have had ample, or, at least, reasonable, time to investigate the matters
in controversy.
3. Nations
are entitled to longer delays for fulfilling their contracts, paying their
debts, &c., than individuals, because governments, no more than
individuals, can be required to perform impossibilities, and a government's
means of paying its debts must be obtained by systematic processes of taxation,
which require a longer or shorter time, according to the wealth and resources
of the country.
4. But
another reason why greater forbearance is due to nations than to individuals,
is, that it generally happens that a part only of a nation are disposed to
withhold justice, while the rest are willing to do it. Yet if the nation, as a
whole, were held responsible to the same rigid rules as all individual, by
having war declared on the first want of promptitude in fulfilling their duty,
the innocent would be involved in the same punishment with the guilty.
For all
these reasons, and some others, great lenity and forbearance in the enforcement
of rights is demanded by the law of nations, or by the natural law applicable
to nations.
To apply
the foregoing principles: If the war in which the United States are now engaged
with Mexico, be one, not of defence, but of aggression, on their part, or be
made in violation of natural law, it is unconstitutional, and all proceedings
had in the prosecution of it are illegal. The enlistments of soldiers for that
service are illegal; and the soldiers are not bound by their enlistments. The
soldiers legally owe no obedience to their officers. The officers have no legal
authority over their soldiers. The oaths of the officers to obey the laws of
the United States, while they are in the territory of Mexico, are of no legal
obligation. And the officers and soldiers, while in Mexico, are in no way
legally amenable to the government or laws of the United States for their
conduct. They owe no legal obedience to the orders of the president. They are,
in the eye of our own law, mere banditti. They may throw off all allegiance to
the government of the United States, turn conquerors on their own account, and
it will be no offence against the laws of the [*236] United States. The
appropriations for carrying on the war in Mexico are illegal, and might, with
as much constitutional authority, be made to Mexican brigands, as to our own
soldiers. Finally, our soldiers are bound to know our own constitutional law on
this point, and to know that they are acting without legal authority. They are,
therefore, not entitled to the rights of prisoners of war, in case they should
fall into the hands of the Mexican government, but are liable to be treated as
robbers and murderers; and our government, in such an event, would have no
constitutional right to protect them, by force, from their liability to Mexican
laws, for all the crimes they are now committing. Return
63. [*237] If the word free were
used as the correlative of any other kinds of restraint than slavery, it
would not have implied slavery as its correlative, and there would have been no
ground for the argument for slavery. On the other hand, if it were used as the
correlative of slavery, there was no need of specially excepting from the
implication of slavery "those bound to service for a term of years,"
for they were known by everybody not to be slaves. Return
64. [*243]
By Wendell Phillips. Return
65. [*244] And in some of the States, as Illinois and Michigan, for
example, they are allowed to vote.
The
provision in the constitution of the United States, in regard to electors, is
this: (art. 1, see. 2.)
"The
House of Representatives shall be composed of members chosen every second year,
by the people of the several States," (not by the citizens of the
United States in each State, but by "the people of the several
States,") ' and the electors in each State shall have the qualifications
requisite for electors of the most numerous branch of the State
legislature." Return
66. [*244] They may be judges,
ambassadors, secretaries of the departments, commanders in the army and navy,
collectors of revenue, postmasters, &c., equally with the citizens. Return
67. [*244]
For the term alien technically implies exclusion from office, exclusion
from the right of suffrage and inability to hold real estate. Return
68. [*246] They are called aliens in
this argument, for the want of any other word that will describe them. Return
69. [*248] "SUBJECTS are members
of the commonwealth, under the king their head." ‑‑‑ Jacob's,
Williams, and Cunningham's Law Dictionaries. Return
70. [*248] "All those are
natural-born subjects, whose parents, at the time of their birth were under the
actual obedience of our king, and whose place of birth was within his
dominions." ‑‑‑ Coke's Rep, p.
18. Bacon's Abridg., title Alien. Cunningham's Law Dictionary, title
Alien. Return
71. [*248] "A denizen is in a kind of middle states between an alien and
a natural-born subject, and partakes of both of them." ‑‑‑ 1
Blackstone, 373. Jacob's Law Dict. Return
72. [*249] The only other term, I think, that was ever used in the English
law, in a similar sense, was "freeman ;" as, for instance,
"freeman of the realm." But "free subject" was the common
term. "Freeman" was more generally used to denote members of
incorporated trading companies, and persons possessing franchises in a city.
Besides, it did not, I think, so generally, if ever, include woman and
children, as did "free subjects." Return
73. [*252] "CIVIS, a citizen; a
freeman or woman; a denizen." ‑‑‑ Ainsworth.
"CITIZEN,
a freeman of a city; not a foreigner; not a slave." ‑‑‑ Johnson.
"CITIZEN,
a freeman of a city." ‑‑‑ Bailey.
"CITIZENS
(cives) are either freemen, or such as reside and keep a family in the city,
&c., an some are citizens and freemen, and some are not, who have not so
great privileges as the others." ‑‑‑ Williams'
Law Dictionary; Cunningham's do.
"CITIZEN,
a native or inhabitant of a city, vested with the freedom and rights
thereof." Rees' Cyclopedia.
"The
civil government of' the city of London is vested by charters and grants from
the kings of England, in its own corporation, or body of
citizens." ‑‑‑ Rees' Cyclopedia.
"CITOVEN
(Fr.) citizen, an inhabitant, or freeman of a city." ‑‑‑ Boyer.
"CITIZEN,
an inhabitant of a city; one who dwells or inhabits in a city;
one who possesses or enjoys certain privileges of a city; a freeman of a
city; one who follows, pursues, or practises the trades or businesses of
a city, as opposed to those who do not." ‑‑‑ Richardson.
"Though
they are in the world, they are not of it, as a citizen of one city may
live in another, and yet not be free of it, nor properly of it, but a
mere stranger and a foreigner." ‑‑‑ Bishop
Beveridge, edited by Richardson.
"CITIZEN.
1. The native of a city, or an inhabitant who enjoys the freedom and
privileges of the city in which he resides; the freeman of a city,
as distinguished from a foreigner, or one not entitled to its franchises. * * *
5. In the
United States, a person, native or naturalized, who has the privilege of exercising
the elective franchise, or the qualifications which enable him to vote for
rulers, and to purchase and hold real estate." ‑‑‑ Webster.
"CITIZENS,
persons. One who, under the constitution and laws of' the United States, has
a right to vote for representatives in congress, and other public officers, and
who is qualified to fill offices in the gift of the people."
‑‑‑ Bouvier's (American) Law Dict.
Kent
denies that citizenship depends on one's right of suffrage, and says that women
and children are citizens. ‑‑‑ 2 Kent,
258, note in third edition.
I am not
aware that Story anywhere gives a definition of the word citizens as it [*253]
is used in the constitution. He says, that "every citizen of a State is ipso
facto a citizen of the United States;" and that "a person who is
a naturalized citizen, of the United States, by a like residence in any
State in the Union, becomes ipso facto a citizen of that State."
‑‑‑ (3 Com. on Const., p.
565-6.) But this saying that a citizen of a State is a citizen of the United
States, and vice versa, gives as no information as to who is either a
citizen of a State, or of the United States, other than those "naturalized"
by act of Congress.
These
authorities show that the word citizen has had different meanings, and
that its meaning was not, at the adoption of the constitution, and even now is
not, well settled, and therefore that it was not a proper word to be used in a
clause where certainty was so important.
It is
especially uncertain whether the word citizens would have included women and
children, as do the words "free persons." Return
74. [*255]
See Chap. 20 and 22. Return
75. [*259] In saying that Indians were
"citizens of the United States," I of course mean those living under
the actual jurisdiction of the United States, and not those who, though living
within the chartered limits of the States, had never had the State or United
States jurisdiction extended over them; but by treaty, as well as of right,
retained their independence, and were governed by their own usages and laws.
It may be
necessary for the information of some persons to state that the jurisdictions
of the several States have not always been coextensive with their chartered
limits. The latter were fixed by the charters granted by the crown, and had
reference only to the boundaries of the respective colonies, as against each
other. But the rights of the colonies, (and subsequently of the States,)
within their chartered limits, were subject to the Indian right of soil, or
occupancy, except so far as that right should be extinguished by the consent of
the Indians. So long as the Indians should choose to retain their right of
soil, or occupancy, and their independence, and separate government, our
governments had no jurisdiction over them, and they were not citizens of the
United States. But when they surrendered their right of soil, or occupancy,
abandoned their separate government, and came within our jurisdiction, or the
States and the United States extended their jurisdiction over them, they became
citizens of the United States, equally with any other persons. At the adoption
of the constitution, there were several independent tribes within the chartered
limits of the Rates. Others had surrendered their independent existence, and
intermingled with the whites. Return
76. [*259] I have inclosed them in
parenthesis to show the sense more distinctly. Return
77. [*264] I think it cannot be
sustained without making three classes, for the reason before given, viz., that
the words "all other persons" must not be held to mean slaves, if
there be any other persons that they can apply to. Return
78.
[*264] The
following illustration will make it perfectly apparent that the representative
clause of the constitution requires all the people of the country,
("Indians not taxed," as well as others), to be counted in making up
the basis of representation and taxation; that it requires and permits them to
be divided into two classes only, viz., the class of units, and the
three-fifths class; and, finally, that it imperatively requires that
"Indians not taxed" be included in the three-fifths class, or class
described as "all other persons."
The
illustration is this. Suppose Congress were to order a census of the people,
for the purpose of making a constitutional apportionment of representation and
taxation, and should require that the severed classes of persons be arranged in
separate columns, each under its appropriate head, according to the terms
used in the constitution. The
table would stand thus:
"The whole
number "All
other persons"
of free persons,
including those bound
to service for a term
of years, and excluding
Indian, not taxed."
This table
follows the directions of the constitution, to the letter. And yet, it
clearly makes but two classes; and the two classes clearly include all
the people of the United States. The
word "excluding" clearly excludes "Indians not
[*265] taxed" only from the first
class. The second class also clearly includes all that are excluded
from the first. It, therefore, clearly includes "Indians not taxed."
These
facts entirely overthrow the argument that "all other persons" must
mean slaves, because there were no other persons whom they could mean.
It is of
no importance to say that "Indians not taxed" have never been
included in the three-fifths count. The answer is, There is the plain letter
of the constitution; and if Congress have not complied with it, it has been
owing either to their ignorance, or their corruption.
Return
79. [*267] Lord Mansfield says,
"Where there are different statutes in pari materia, (upon the same
subject,) though made at different times, or even expired, and not referring to
each other, they shall be taken and construed together, as one system
and explanatory of each other." ‑‑‑ Burrows,
447.
"It
is an established rule of construction, that statutes in pari materia,
or upon the same subject, must he construed with reference to each other; that
is, that what is clear in one statute, shall be called in aid to explain what
is obscure and ambiguous in another." ‑‑‑ 1
Blackstone, 60, note; 1 Kent, 462.
Rutherforth says, "In doubtful matters it
is reasonable to presume that the same person is always in the same mind, when
nothing appears to the contrary; that whatever was his design at one time, the
same is likewise his design al another time, where no sufficient reason can be
produced to prove an alteration of [*268] it. If the words, therefore, of any
writing, will admit of two or more different senses, when they are considered'
separately, but must necessarily be understood in one of these senses rather
than the other, in order to make the writer's meaning agree with what he has spoken
or written upon some other occasion, the reasonable presumption is, that this
must be the sense in which he used them." ‑‑‑ Rutherforth,
B. 2, ch. 7, p. 331-2. Return
80. [*268]
See page 179. Return
81. [*268] I doubt if a single instance
can be found, even in the statutes of the slaveholding States themselves, in
force in 1789, where the word free was used, (as the slave argument
claims that it was used in the constitution,) to describe either white persons,
or the mass of the people other than slaves, (that is, the white and
free colored,) as distinguished from the slaves, unless the statute also
contained the word slave, or some other evidence, beside the word free
itself, that that was the sense in which the word free was used. If
there were no such statute, it proves that, by the usage of legislation, in
1789, even in the slaveholding States themselves, the word free was
insufficient, of itself, to imply slavery as its correlative.
I have not
thought it necessary to verify this supposition, by an examination of the
statute hooks of the States, because the labor would be considerable, and the
fact is not necessary to my case. But if the fact be as I have supposed, it
takes away the last shadow of pretence, founded on the usage of legislation at
that day, that such was the sense in which the word free was used in the
constitution. I commend to the advocates of slavery, (on whom rests the burthen
of proving the meaning of the word,) the task of verifying or disproving the
supposition. Return
82. [*269] The Sup. Court United States say, of "the government
of the Union," that its powers are granted by the people, and are to be
exercised directly on them" (that is, upon them as individuals,)
"and for their benefit." ‑‑‑ 4
Wheaton, 404,405. Return
83. [*270] See Chap. 13. Return
84. [*270] The Supreme Court of the
United States say, the "powers" of the general government "are
to be exercised directly on the people, and for their benefit." ‑‑‑ 4
Wheaton, 205. Return
85. [*272] The doctrine that the
government has all power except what is prohibited to it, is of despotic
origin. Despotic government is supposed to originate, and does in fact
originate, with the despot, instead of the people; and he claims all power over
them except what they have from time to time wrested from him. It is a consistent
doctrine that such governments have all power except what is prohibited to
them. But where the government originates with the people, precisely the
opposite doctrine is true, viz., that the government has to power except what
is granted to it. Return
86.
[*272] If,
however, they had not known that the existing slavery was unconstitutional, and
had proceeded upon the mistaken belief that it was constitutional, and had
intended to recognize it as being so, such intended recognition would have
availed nothing; for it is an established principle, recognized by the Supreme
Court of the United States, that 'a legislative act, founded upon a mistaken
opinion to what was law, does not change the actual state of the law as to
pre-existing cases." ‑‑‑ 1 Cranch,
1; Peter's Digest, 578. Return
87.
[*274] See Part First, pages 90 to 94, sec. edition. Also the argument under
the "Sixth Rule of Interpretation," p. 182 to 189 of this part, and
under the "Second Rule cited for Slavery," p. 214 to 216. Return
88. [*275]
It is not necessary, as some imagine, for Congress to enact a law making
slavery illegal. Congress have no such power. Such a power would imply that
slavery was now legal. Whereas it is now as much illegal as it is possible to
be made by all the legislation in the world. Congress, assuming that slavery is
illegal, are constitutionally bound to provide all necessary means for having
that principle maintained in practice.
Return
89. [*275]
Part First, ch. 5, p. 101, 2d ed. Return