The Unconstitutionality of Slavery Part 11

in the interference of the general government to maintain a republican form of government in the states, still, the unequivocal pledge to that effect, given in the const.i.tution, would nevertheless remain an irresistible reb.u.t.ter to the allegation that the const.i.tution intended to guaranty its opposite, slavery, an oligarchy, or a despotism. It would, therefore, entirely forbid all those inferences and implications, drawn by slaveholders, from those other phrases, which they quote as guaranties of slavery.[25]

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

One of these grounds is, that it would be impossible, consistently with the other provisions of the const.i.tution, that the general government itself could be republican, unless the state governments were republican also. For example. The const.i.tution provides, in regard to the choice of congressional representatives, that "the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." It was indispensable to the internal quiet of each state, that the same body of electors, who should partic.i.p.ate in the suffrage of the state governments, should partic.i.p.ate also in the suffrage of the national one--and _vice versa_, that those who should partic.i.p.ate in the national suffrage, should also partic.i.p.ate in that of the state. If the general and state const.i.tutions had each a different body of electors within each state, it would obviously give rise at once to implacable and irreconcilable feuds, that would result in the overthrow of one or the other of the governments within the state. Harmony or inveterate conflict was the only alternative. As conflict would necessarily result in the destruction of one of the governments, harmony was the only mode by which both could be preserved.

And this harmony could be secured only by giving to the same body of electors, suffrage in both the governments.

If, then, it was indispensable to the existence and authority of both governments, within the territory of each state, that the same body, and only the same body of electors, that were represented in one of the governments, should be represented in the other, it was clearly indispensable, in order that the national one should be republican, that the state governments should be republican also. Hence the interest which the nation at large have in the republicanism of each of the state governments.

It being necessary that the suffrage under the national government, within each state, should be the same as for the state government, it is apparent that unless the several state governments were all formed on one general plan, or unless the electors of all the states were united in the acknowledgement of some general controlling principle, applicable to both governments, it would be impossible that they could unite in the maintenance of a general government that should act in harmony with the state governments; because the same body of electors, that should support a despotic government in the state, could not consistently or cordially unite, or even unite at all, in the support of a republican government for the nation. If one portion of the state governments should be republican, like Vermont, where suffrage is open to all--and another portion should be oligarchies, like South Carolina, and the other slave states--another portion limited monarchies, like England--another portion ecclesiastical, like that of the Pope of Rome, or that of the ancient Jews--and another portion absolute despotisms, like that of Nicholas, in Russia, or that of Francia, in Paraguay,--and the same body, and only the same body, of electors, that sustained each of these governments at home, should be represented in the national government, each state would send into the national legislature the representatives of its own peculiar system of government; and the national legislature, instead of being composed of the representatives of any one theory, or principle of government, would be made up of the representatives of all the various theories of government that prevailed in the different states--from the extreme of democracy to the extreme of despotism. And each of these various representatives would be obliged to carry his local principles into the national legislature, else he could not retain the confidence of his peculiar const.i.tuents. The consequence would be, that the national legislature would present the spectacle of a perfect Babel of discordant tongues, elements, pa.s.sions, interests and purposes, instead of an a.s.sembly united for the accomplishment of any agreed or distinct object.

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

Now the great bond of union, agreed upon in the general government, was "the rights of man"--expressed in the national const.i.tution by the terms "liberty and justice." What other bond could have been agreed upon? On what other principle of government could they all have united? Could they have united to sustain the divine right of kings? The feudal privileges of n.o.bles? Or the supremacy of the Christian, Mahometan, or any other church? No. They all denied the divine right of kings, and the feudal rights of n.o.bles; and they were of all creeds in religion. But they were agreed that all men had certain natural, inherent, essential and inalienable rights, among which were life, liberty and the pursuit of happiness; and that the preservation of these rights was the legitimate purpose of governments among men. They had avowed this principle before the world, had fought for it, and successfully defended it, against the mightiest power in the world. They had filled the world with its glory; and it, in turn, had filled the world with theirs. It had also gathered, and was then gathering, choice spirits, and large numbers of the oppressed from other nations unto them. And this principle--in which were involved the safety, interests and rights of each and every one of "the people," who were to unite for the formation of the government--now furnished a bond of union, that was at once sufficient, legitimate, consistent, honorable, of universal application, and having more general power over the hearts and heads of all of them, than any other that could be found to hold them together. It comported with their theory of the true objects of government. This principle, therefore, they adopted as the corner-stone of their national government; and, as a matter of necessity, all other things, on which this new government was in any degree to depend, or which was to depend in any degree upon this government, were then made to conform to this principle. Hence the propriety of the power given to the general government, of "guaranteeing to every state in the Union a republican form of government." Had not this power been given to the general government, the majorities in each state might have converted the state governments into oligarchies, aristocracies, monarchies or despotisms, that should not only have trampled upon the minorities, and defeated their enjoyment of the national const.i.tution, but also introduced such factions and feuds into the national governments, as would have distracted its councils, and prostrated its power.

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

Commerce was to be established between the people of the different states. The commerce of a free people is many times more valuable than that of slaves. Freemen produce and consume vastly more than slaves.

They have therefore more to buy and more to sell. Hence the free states have a direct pecuniary interest in the civil freedom of all the other states. Commerce between free and slave states is not reciprocal or equal. Who can measure the increase that would have been made to the industry and prosperity of the free states, if all the slaves in the country had been freemen, with all the wants and energies of freemen?

And their masters had had all the thrift, industry, frugality and enterprise of men who depend upon their own labor, instead of the labor of slaves, for their prosperity? Great Britain thought it policy to carry on a seven years' war against us princ.i.p.ally to secure to herself the control and benefits of the commerce of three millions of people and their posterity. But we now have nearly or quite the same number of slaves within our borders, and yet we think that commerce with them and their posterity is a matter with which we have no concern; that there is "_no propriety_" in that provision of the national const.i.tution, which requires that the general government--which we have invested with the exclusive control of all commerce among the several states--should secure to these three millions the right of traffic with their fellow men, and to their fellow men the right of traffic with them, against the impertinent usurpations and tyranny of subordinate governments, that have no const.i.tutional right to interfere in the matter.

Again. The slave states, in proportion to their population, contribute nothing like an equal or equitable share to the aggregate of national wealth. It would probably be within the truth to say that, in proportion to numbers, the people of the free states have contributed ten times as much to the national wealth as the people of the slave states. Even for such wealth as the culture of their great staple, cotton, has added to the nation, the south are indebted princ.i.p.ally, if not entirely, to the inventive genius of a single northern man.[26] The agriculture of the slave states is carried on with rude and clumsy implements; by listless, spiritless and thriftless laborers; and in a manner speedily to wear out the natural fertility of the soil, which fertility slave cultivation seldom or never replaces. The mechanic arts are comparatively dead among them. Invention is utterly dormant. It is doubtful whether either a slave or a slave holder has ever invented a single important article of labor-saving machinery since the foundation of the government. And they have hardly had the skill or enterprise to apply any of those invented by others. Who can estimate the loss of wealth to the nation from these causes alone? Yet we of the free states give to the south a share in the incalculable wealth produced by our inventions and labor-saving machinery, our steam engines, and cotton gins, and manufacturing machinery of all sorts, and yet say at the same time that we have no interest, and that there is "no propriety" in the const.i.tutional guaranty of that personal freedom to the people of the south, which would enable them to return us some equivalent in kind.

For the want, too, of an enforcement of this guaranty of a republican form of government to each of the states, the population of the country, by the immigration of foreigners, has no doubt been greatly hindered.

Mult.i.tudes almost innumerable, who would have come here, either from a love of liberty, or to better their conditions, and given the country the benefit of their talents, industry and wealth, have no doubt been dissuaded or deterred by the hideous tyranny that rides triumphant in one half of the nation, and extends its pestiferous and detested influence over the other half.

_Socially_, also, we have an interest in the freedom of all the states.

We have an interest in free personal intercourse with all the people living under a common government with ourselves. We wish to be free to discuss, with any and all of them, all the principles of liberty and all the interests of humanity. We wish, when we meet a fellow man, to be at liberty to speak freely with him of his and our condition; to be at liberty to do him a service; to advise with him as to the means of improving his condition; and, if need be, to ask a kindness at his hands. But all these things are incompatible with slavery. Is this such an union as we bargained for? Was it "nominated in the bond," that we should be cut off from these the common rights of human nature? If so, point to the line and letter, where it is so written. Neither of them are to be found. But the contrary is expressly guarantied against the power of both the governments, state and national; for the national government is prohibited from pa.s.sing any law abridging the freedom of speech and the press, and the state governments are prohibited from maintaining any other than a republican form of government, which of course implies the same freedom.

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

The reason of the thing, and the connexion, in which the two provisions stand in the const.i.tution, give the answer.

We have yet another interest still, and that no trivial one, in the republicanism of the state governments; an interest indicated, too, like the one last mentioned, in the very section in which this republicanism is a.s.sured. It relates to the defence against invasion. The general government is pledged to defend each of the states against invasion. Is it a thing of no moment, whether we have given such a pledge to free or to slave states? Is there no difference in the cost and hazard of defending one or the other? Is it of no consequence to the expense of life and money, involved in this undertaking, whether the people of the state invaded shall be united, as freemen naturally will be, as one man against the enemy? Or whether, as in slave states, half of them shall be burning to join the enemy, with the purpose of satisfying with blood the long account of wrong that shall have accrued against their oppressors?

Did Ma.s.sachusetts--who during the war of the revolution furnished more men for the common defence, than all the six southern states together--did she, immediately on the close of that war, pledge herself, as the slave holders would have it, that she would lavish her life in like manner again, for the defence of those whose wickedness and tyranny in peace should necessarily multiply their enemies and make them defenceless in war? If so, on what principle, or for what equivalent, did she do it? Did she not rather take care that the guaranty for a republican government should be inserted in the same paragraph with that for protection against invasion, in order that both the principle and the extent of the liability she incurred, might distinctly appear?

The nation at large, then, as a political community under the const.i.tution, have both interests and rights, and both of the most vital character, in the republicanism of each of the state governments. The guaranty given by the national const.i.tution, securing such a government to each of the states, is therefore neither officious nor impertinent.

On the contrary, this guaranty was a _sine qua non_ to any national contract of union; and the enforcement of it is equally indispensable, if not to the continuance of the union at all, certainly to its continuance on any terms that are either safe, honorable or equitable for the north.

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

[Footnote 18: This language of the Supreme Court contains an admission of the truth of the charge just made against judges, viz: that rather than lose their offices, they will violate what they know to be law, in subserviency to the legislatures on whom they depend; for it admits, 1st, that the preservation of men's _rights_ is the vital principle of law, and, 2d, that courts, (and the Supreme Court of the United States in particular,) will trample upon that principle at the bidding of the legislature, when the mandate comes in the shape of a statute of such "_irresistible clearness_," that its meaning cannot be evaded.]

[Footnote 19: "Laws are construed strictly to save a right."--_Whitney et al._ vs. _Emmett et al., 1 Baldwin, C.C.R._ 316.

"No law will make a construction do wrong; 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, t.i.tle Law._]

[Footnote 20: In the convention that framed the const.i.tution, when this clause was under discussion, "servants" were spoken of as a distinct cla.s.s from "slaves." For instance, "Mr. Butler and Mr. Pickney moved to require 'fugitive slaves and servants 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 const.i.tution--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.]

[Footnote 21: Gibbons _vs._ Ogden.--(9 Wheaton, 1.)]

[Footnote 22: "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 const.i.tution of the United States was ordained and established, not by the United States in their sovereign capacities, but emphatically, as the preamble of the const.i.tution declares, by 'the people of the United States.'"--_Martin_ vs. _Hunter's lessee_, 1 _Wheaton_, 324.]

[Footnote 23: That is, male persons. The const.i.tution, whenever it uses the p.r.o.noun, in speaking of the president, uniformly uses the masculine gender--from which it may be inferred that male persons only were intended to be made eligible to the office.]

[Footnote 24: Somerset was not a citizen of England, or ent.i.tled, 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.]

[Footnote 25: 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 bound to interfere to _put down republicanism_? And that those who were _republicans_ at the north, might with perfect "propriety" and consistency, pledge their a.s.sistance 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 a.s.sist 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.]

[Footnote 26: Eli Whitney.]

CHAPTER IX.

THE INTENTIONS OF THE CONVENTION.

The intentions of the framers of the const.i.tution, (if we could have, as we cannot, any _legal_ knowledge of them, except from the words of the const.i.tution,) have nothing to do with fixing the legal meaning of the const.i.tution. That convention were not delegated to adopt or establish a const.i.tution; but only to consult, devise and recommend. The instrument, when it came from their hands, was a mere proposal, having no legal force or authority. It finally derived all its validity and obligation, as a frame of government, from its adoption by the people at large.[27]

Of course the intentions of the people at large are the only ones, that are of any importance to be regarded in determining the legal meaning of the instrument. And their intentions are to be gathered entirely from the words, which they adopted to express them. And their intentions must be presumed to be just what, and only what the words of the instrument _legally_ express. In adopting the const.i.tution, the people acted as legislators, in the highest sense in which that word can be applied to human lawgivers. They were establishing a law that was to govern both themselves and their government. And their intentions, like those of other legislators, are to be gathered from the words of their enactments. Such is the dictate of both law and common sense.[28] The instrument had been reported by their committee, the convention. But the people did not ask this committee what was the legal meaning of the instrument reported. They adopted it, judging for themselves of its legal meaning, as any other legislative body would have done. The people at large had not even an opportunity of consultation with the members of the convention, to ascertain their opinions. And even if they had consulted them, they would not have been bound at all by their opinions.

But being unable to consult them, they were compelled to adopt or reject the instrument, on their own judgment of its meaning, without any reference to the opinions of the convention. The instrument, therefore, is now to be regarded as expressing the intentions of the people at large; and not the intentions of the convention, if the convention had any intentions differing from the meaning which the law gives to the words of the instrument.

But why do the partizans of slavery resort to the debates of the convention for evidence that the const.i.tution sanctions slavery? Plainly for no other reason than because the words of the instrument do not sanction it. But can the intentions of that convention, attested only by a mere skeleton of its debates, and not by any impress upon the instrument itself, add any thing to the words, or to the legal meaning of the words of the const.i.tution? Plainly not. Their intentions are of no more consequence, in a legal point of view, than the intentions of any other equal number of the then voters of the country. Besides, as members of the convention, they were not even parties to the instrument; and no evidence of their intentions, at _that_ time, is applicable to the case. They became parties to it only by joining with the rest of the people in its subsequent adoption; and they themselves, equally with the rest of the people, must then be presumed to have adopted its legal meaning, and that alone--notwithstanding any thing they may have previously said. What absurdity then is it to set up the opinions expressed in the convention, and by a few only of its members, in opposition to the opinions expressed by the whole people of the country, in the const.i.tution itself.

But notwithstanding the opinions expressed in the convention by some of the members, we are bound, as a matter of law, to presume that the convention itself, in the aggregate, had no intention of sanctioning slavery--and why? Because, after all their debates, they agreed upon an instrument that did not sanction it. This was confessedly the result in which all their debates terminated. This instrument is also the _only_ authentic evidence of their intentions. It is subsequent in its date to all the other evidence. It comes to us, also, as none of the other evidence does, _signed with their own hands_. And is this to be set aside, and the const.i.tution itself to be impeached and destroyed, and free government overturned, on the authority of a few meagre s.n.a.t.c.hes of argument, intent or opinion, uttered by a few only of the members; jotted down by one of them, (Mr. Madison,) merely for his own convenience, or from the suggestions of his own mind; and only reported to us fifty years afterwards by a posthumous publication of his papers?

If any thing could excite the utter contempt of the people of this nation for the miserable subterfuges, to which the advocates of slavery resort, it would seem that their offering such evidence as this in support of their cause, must do it. And yet these, and such as these mere fragments of evidence, all utterly inadmissible and worthless in their kind, for any legal purpose, const.i.tute the warp and the woof, the very _sine qua non_ of the whole argument for slavery.

Did Mr. Madison, when he took his oath of office, as president of the United States, swear to support these sc.r.a.ps of debate, which he had filed away among his private papers?--Or did he swear to support that written instrument, which the people of the country had agreed to, and which was known to them, and to all the world, as the const.i.tution of the United States.[29]

But even if the unexpressed intentions, which these notes of debate ascribe to certain members, had been partic.i.p.ated in by the whole convention, we should have had no right to hold the people of the country at large responsible for them. _This convention sat with closed doors_, and it was not until near fifty years after the people had adopted the const.i.tution itself, that these private intentions of the framers authentically transpired. And even now all the evidence disclosed implicates, _directly and absolutely_, but few of the members--not even all from the slaveholding states. The intentions of all the rest, we have a right to presume, concurred with their votes and the words of the instrument; and they had therefore no occasion to express contrary ones in debate.

But suppose that _all_ the members of the convention had partic.i.p.ated in these intentions--what then? Any forty or fifty men, like those who framed the const.i.tution, may now secretly concoct another, that is honest in its terms, and yet in secret conclave confess to each other the criminal objects they intend to accomplish by it, if its honest character should enable them to secure for it the adoption of the people.--But if the people should adopt such const.i.tution, would they thereby adopt any of the criminal and secret purposes of its authors? Or if the guilty confessions of these conspirators should be revealed fifty years afterwards, would judicial tribunals look to them as giving the government any authority for violating the legal meaning of the words of such const.i.tution, and for so construing them as to subserve the criminal and shameless purposes of its originators?

The members of the convention, as such, were the mere scriveners of the const.i.tution; and their individual purposes, opinions or expressions, then uttered in secret cabal, though now revealed, can no more be evidence of the intentions of the people who adopted the const.i.tution, than the secret opinions or expressions of the scriveners of any other contract can be offered to prove the intentions of the true parties to such contract. As framers of the const.i.tution, the members of the convention gave to it no validity, meaning, or legal force. They simply drafted it, and offered it, such as it legally might be, to the people for their adoption or rejection. The people, therefore, in adopting it, had no reference whatever to the opinions of the convention. They had no authentic evidence of what those opinions were. They looked simply at the instrument. And they adopted even its legal meaning by a bare majority. If the instrument had contained any tangible sanction of slavery, the people would sooner have had it burned by the hands of the common hangman, than they would have adopted it, and thus sold themselves as pimps to slavery, covered as they were with the scars they had received in fighting the battles of freedom. And the members of the convention knew that such was the feeling of a large portion of the people; and for that reason, if for no other, they dared insert in the instrument no legal sanction of slavery. They chose rather to trust to their craft and influence to corrupt the government, (of which they themselves expected to be important members,) after the const.i.tution should have been adopted, rather than ask the necessary authority directly from the people. And the success they have had in corrupting the government, proves that they judged rightly in presuming that the government would be more flexible than the people.

For other reasons, too, the people should not be charged with designing to sanction any of the secret intentions of the convention. When the states sent delegates to the convention, no avowal was made of any intention to give any national sanction to slavery. The articles of confederation had given none; the then existing state const.i.tutions gave none; and it could not have been reasonably antic.i.p.ated by the people that any would have been either asked for or granted in the new const.i.tution. If such a purpose had been avowed by those who were at the bottom of the movement, the convention would doubtless never have been held. The avowed objects of the convention were of a totally different character. Commercial, industrial and defensive motives were the prominent ones avowed. When, then, the const.i.tution came from the hands of such a convention, unstained with any legal or tangible sanction of slavery, were the people--who, from the nature of the case, could not a.s.semble to draft one for themselves--bound either to discard it, or hold themselves responsible for all the secret intentions of those who had drafted it? Had they no power to adopt its legal meaning, and that alone! Unquestionably they had the power; and, as matter of law, as well as fact, it is equally unquestionable that they exercised it. Nothing else than the const.i.tution, as a legal instrument, was offered to them for their adoption. Nothing else was legally before them that they could adopt. Nothing else, therefore, did they adopt.

This alleged design, on the part of the convention, to sanction slavery, is obviously of no consequence whatever, unless it can be transferred to the people who adopted the const.i.tution. Has any such transfer ever been shown? Nothing of the kind. It may have been known among politicians; and may have found its way into some of the state conventions. But there probably is not a little of evidence in existence, that it was generally known among the ma.s.s of the people. And, in the nature of things, it was nearly impossible that it should have been known by them. The national convention had sat with closed doors. Nothing was known of their discussions, except what was personally reported by the members. Even the discussions in the _state_ conventions could not have been known to the people at large; certainly not until after the const.i.tution had been ratified by those conventions. The ratification of the instrument, by those conventions, followed close on the heels of their discussions.--The population meanwhile was thinly scattered over the country. The public papers were few, and small, and far between. They could not even make such reports of the discussions of public bodies, as newspapers now do. The consequence must have been that the people at large knew nothing of the intentions of the framers of the const.i.tution, but from its words, until after it was adopted. Nevertheless, it is to be constantly borne in mind, that even if the people had been fully cognizant of those intentions, they would not therefore have adopted them, or become at all responsible for them, so long as the intentions themselves were not incorporated in the instrument. Many selfish, ambitious and criminal purposes, not expressed in the const.i.tution, were undoubtedly intended to be accomplished by one and another of the thousands of unprincipled politicians, that would naturally swarm around the birth-place, and a.s.sist at the nativity of a new and splendid government. But the people are not therefore responsible for those purposes; nor are those purposes, therefore, a part of the const.i.tution; nor is its language to be construed with any view to aid their accomplishment.

But even if the people intended to sanction slavery by adopting the intentions of the convention, it is obvious that they, like the convention, intended to use no language that should legally convey that meaning, or that should necessarily convict them of that intention in the eyes of the world.--They, at least, had enough of virtuous shame to induce them to conceal this intention under the cover of language, whose legal meaning would enable them always to aver,