The Unconstitutionality of Slavery Part 12

"Thou canst not say I did it."

The intention, therefore, that the judiciary should construe certain language into an authority for slavery, when such is not the legal meaning of the language itself, cannot be ascribed to the people, except upon the supposition that the people presumed their judicial tribunals would have so much less of shame than they themselves, as to _volunteer_ to carry out these their secret wishes, by going beyond the words of the const.i.tution they should be sworn to support, and violating all legal rules of construction, and all the free principles of the instrument. It is true that the judiciary, (whether the people intended it or not,) have proved themselves to be thus much, at least, more shameless than the people, or the convention. Yet that is not what ought to have been expected of judicial tribunals. And whether such were really the intention of the convention, or the people, is, at least a matter of conjecture and history, and not of law, nor of any evidence cognizable by any judicial tribunal.

Why should we search at all for the intentions, either of the convention, or of the people, beyond the words which both the convention and the people have agreed upon to express them? What is the object of written const.i.tutions, and written statutes, and written contracts? Is it not that the meaning of those who make them may be known with the most absolute precision of which language is capable? Is it not to get rid of all the fraud, and uncertainty, and disagreements of oral testimony? Where would be our const.i.tution, if, instead of its being a written instrument, it had been merely agreed upon orally by the members of the convention? And by them only orally reported to the people? And only this oral report of it had been adopted by the people? And all our evidence of what it really was, had rested upon reports of what Mr. A, and Mr. B, members of the convention, had been heard to say? Or upon Mr.

Madison's notes of the debates of the convention? Or upon the oral reports made by the several members to their respective const.i.tuents, or to the respective state conventions? Or upon flying reports of the opinions which a few individuals, out of the whole body of the people, had formed of it when they adopted it? No two of the members of the convention would probably have agreed in their representations of what the const.i.tution really was. No two of the people would have agreed in their understanding of the const.i.tution when they adopted it. And the consequence would have been that we should really have had no const.i.tution at all. Yet there is as much ground, both in reason and in law, for thus throwing aside the _whole_ of the written instrument, and trusting entirely to these other sources for evidence of what any part of the const.i.tution really is, as there is for throwing aside those particular portions of the written instrument, which bear on slavery, and attempting to supply their place from such evidence as these other sources may chance to furnish. And yet, to throw aside the written instrument, so far as its provisions are prohibitory of slavery, and make a new const.i.tution on that point, out of other testimony, is the only means, confessedly the only means, by which slavery can be made const.i.tutional.

And what is the object of resorting to these flying reports for evidence, on which to change the meaning of the const.i.tution? Is it to change the instrument from a dishonest to an honest one? from an unjust to a just one? No. But directly the reverse--and solely that dishonesty and injustice may be carried into effect. A purpose, for which no evidence of any kind whatever could be admitted in a court of justice.

Again. If the principle be admitted, that the meaning of the const.i.tution can be changed, on proof being made that the scriveners or framers of it had secret and knavish intentions, which do not appear on the face of the instrument, then perfect license is given to the scriveners of const.i.tutions to contrive any secret scheme of villainy they may please, and impose it upon the people as a system of government, under cover of a written instrument that is so plainly honest and just in its terms, that the people readily agree to it. Is such a principle to be admitted in a country where the people claim the prerogative of establishing their own government, and deny the right of any body to impose a government upon them, either by force, or fraud, or against their will?

Finally. The const.i.tution is a contract; a written contract, consisting of a certain number of precise words, to which, and to which only, all the parties to it have, in theory, agreed. Manifestly neither this contract, nor the meaning of its words, can be changed, without the consent of all the parties to it. Nor can it be changed on a representation, to be made by any number of them less than the whole, that they intended any thing different from what they have said. To change it, on the representation of a part, without the consent of the rest, would be a breach of contract as to all the rest. And to change its _legal meaning_, without their consent, would be as much a breach of the contract as to change its words. If there were a single honest man in the nation, who a.s.sented, in good faith, to the honest and legal meaning of the const.i.tution, it would be unjust and unlawful to change the meaning of the instrument so as to sanction slavery, even though every other man in the nation should testify that, in agreeing to the const.i.tution, he intended that slavery should be sanctioned. If there were _not_ a single honest man in the nation, who adopted the const.i.tution in good faith, and with the intent that its legal meaning should be carried into effect, its legal meaning would nevertheless remain the same; for no judicial tribunal could lawfully allow the parties to it to come into court and allege their dishonest intentions, and claim that they be subst.i.tuted for the legal meaning of the words of the instrument.

[Footnote 27: 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'Cullock_ vs. _Maryland_,--4 _Wheaton_ 403-4.]

[Footnote 28: 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.]

[Footnote 29: "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 n.o.body now probably knows whom. In his preface to his first volume, containing the debates in the Ma.s.sachusetts 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; 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 const.i.tutional 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 const.i.tution was adopted--stuff very suitable for const.i.tutional dreams to be made of--that our courts and people now make their const.i.tutional law, in preference to adopting the law of the const.i.tution itself. In this way they manufacture law strong enough to bind three millions of men in slavery.]

CHAPTER X.

THE PRACTICE OF THE GOVERNMENT.

The practice of the government, under the const.i.tution, has not altered the legal meaning of the instrument. It means now what it did before it was ratified, when it was first offered to the people for their adoption or rejection. One of the advantages of a written const.i.tution is, that it enables the people to see what its character is before they adopt it; and another is, that it enables them to see, after they have adopted it, whether the government adheres to it, or departs from it. Both these advantages, each of which is indispensable to liberty, would be entirely forfeited, if the legal meaning of a written const.i.tution were one thing when the instrument was offered to the people for their adoption, and could then be made another thing by the government after the people had adopted it.

It is of no consequence, therefore, what meaning the government _have_ placed upon the instrument; but only what meaning they were _bound to place upon it_ from the beginning.

The only question, then, to be decided, is, what was the meaning of the const.i.tution, _as a legal instrument_, when it was first drawn up, and presented to the people, and before it was adopted by them?

To this question there certainly can be but one answer.--There is not room for a doubt or an argument, on that point, in favor of slavery. The instrument itself is palpably a free one throughout, in its language, its principles, and all its provisions. As a legal instrument, there is no trace of slavery in it. It not only does not sanction slavery, but it does not even recognize its existence. More than this, it is palpably and wholly incompatible with slavery. It is also the supreme law of the land, in contempt of any state const.i.tution or law that should attempt to establish slavery.

Such was the character of the const.i.tution when it was offered to the people, and before it was adopted. And if such was its character then, such is its character still. It cannot have been changed by all the errors and perversions, intentional or unintentional, of which the government may have since been guilty.

CHAPTER XI.

THE UNDERSTANDING OF THE PEOPLE.

Although the inquiry may be of no legal importance, it may nevertheless be one pertinent to the subject, whether it be matter of _history_ even--to say nothing of legal proof--that the _people_ of the country did really understand or believe that the const.i.tution sanctioned slavery? Those who make the a.s.sertion, are bound to prove it. The presumption is against them. Where is their contrary history?

They will say that a part of the people were actually slaveholders, and that it is unreasonable to suppose they would have agreed to the const.i.tution, if they had understood it to be a free one.

The answer to this argument is, that the actual slaveholders were few in number compared with the whole people; comprising probably not more than one-eighth or one-sixth of the voters, and one-fortieth or one-thirtieth of the whole population. They were so few as to be manifestly incapable of maintaining any separate political organization; or even of holding their slave property, except under the sufferance, toleration and protection of the non-slaveholders. They were compelled, therefore, to agree to any political organization, which the non-slaveholders should determine on. This was at that time the case even in the strongest of the slaveholding states themselves. In all of them, without exception, the slaveholders were either obliged to live, or from choice did live, under free const.i.tutions. They, of course, held their slave property in defiance of their const.i.tutions. They were enabled to do this through the corrupting influence of their wealth and union. Controlling a large proportion of the wealth of their states, their social and political influence was entirely disproportionate to their numbers. They could act in concert. They could purchase talent by honors, offices and money.

Being always united, while the non-slaveholders were divided, they could turn the scale in elections, and fill most of the offices with slaveholders. Many of the non-slaveholders doubtless were poor, dependent and subservient, (as large portions of the non-slaveholders are now in the slaveholding states,) and lent themselves to the support of slavery almost from necessity. By these, and probably by many other influences that we cannot now understand, they were enabled to maintain their hold upon their slave property in defiance of their const.i.tutions.

It is even possible that the slaveholders themselves did not choose to have the subject of slavery mentioned in their const.i.tutions; that they were so fully conscious of their power to corrupt and control their governments, that they did not regard any const.i.tutional provision necessary for their security; and that out of mere shame at the criminality of the thing, and its inconsistency with all the principles the country had been fighting for and proclaiming, they did not wish it to be named.

But whatever may have been the cause of the fact, the fact itself is conspicuous, that from some cause or other, either with the consent of the slaveholders, or in defiance of their power, the const.i.tutions of every one of the thirteen states were at that time free ones.

Now is it not idle and useless to pretend, when even the strongest slaveholding states had free const.i.tutions--when not one of the separate states, acting for itself, would have any but a free const.i.tution--that the whole thirteen, when acting in unison, should concur in establishing a slaveholding one? The idea is preposterous. The single fact that all the state const.i.tutions were at that time free ones, scatters for ever the pretence that the majority of the people of all the states either intended to establish, _or could have been induced to establish_, any other than a free one for the nation. Of course it scatters also the pretence that they believed or understood that they were establishing any but a free one.

There very probably may have been a general belief among the people, that slavery would for a while live on, on sufferance; that the government, until the nation should have become attached to the const.i.tution, and cemented and consolidated by the habit of union, would be too weak, and too easily corrupted by the innumerable and powerful appliances of slaveholders, to wrestle with and strangle slavery. But to suppose that the nation at large did not look upon the const.i.tution as designed to destroy slavery, whenever its principles should be carried into full effect, is obviously to suppose an intellectual impossibility; for the instrument was plain, and the people had common sense; and those two facts cannot stand together consistently with the idea that there was any general, or even any considerable misunderstanding of its meaning.

CHAPTER XII.

THE STATE CONSt.i.tUTIONS OF 1845.

Of all the existing state const.i.tutions, (excepting that of Florida, which I have not seen,) not one of them contains provisions that are sufficient, (or that would be sufficient if not restrained by the const.i.tution of the United States,) to authorize the slavery that exists in the states. The material deficiency in all of them is, that they neither designate, nor give the legislatures any authority to designate the persons, who may be made slaves. Without such a provision, all their other provisions in regard to slaves are nugatory, simply because their application is legally unknown. They would apply as well to whites as to blacks, and would as much authorize the enslavement of whites as of blacks.

We have before seen that none of the state const.i.tutions, that were in existence in 1789, recognized slavery at all. Since that time, four of the old thirteen states, viz., Maryland, North Carolina, South Carolina and Georgia, have altered their const.i.tutions so as to make them recognize slavery; yet not so as to provide for any legal designation of the persons to be made slaves.

The const.i.tution of South Carolina has a provision that implies that _some_ of the slaves, at least, are "negroes;" but not that all slaves are negroes, nor that all negroes are slaves. The provision, therefore, amounts to nothing for the purposes of a const.i.tutional designation of the persons who may be made slaves.

The const.i.tutions of Tennessee and Louisiana make no direct mention of slaves; and have no provisions in favor of slavery, unless the general one for continuing existing laws in force, be such a one. But both have specific provisions inconsistent with slavery. Both purport to be established by "the people;" both have provisions for the writ of _habeas corpus_. Indeed, the const.i.tutions of most of the slave states have provisions for this writ, which, as has been before shown, denies the right of property in man. That of Tennessee declares also "that all courts shall be open, and _every man_, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."

Tennessee also was formerly a part of North Carolina; was set off from her while the const.i.tution of North Carolina was a free one. Of course there has never been any legal slavery in Tennessee.

The const.i.tutions of the states of Kentucky, Missouri, Arkansas, Mississippi, and Alabama, all have provisions about slaves; yet none of them tell us who may be slaves. Some of them indeed provide for the admission into their state of such persons as are slaves under the laws, (which of course means only the _const.i.tutional_ laws,) _of other states_. But when we go to those other states, we find that their const.i.tutions have made no designation of the persons who may be made slaves; and therefore we are as far from finding the actual persons of the slaves as we were before.

The princ.i.p.al provision, in the several state const.i.tutions, recognizing slavery, is, in substance, this, that the legislature shall have no power to _emanc.i.p.ate_ slaves without the consent of their owners, or without making compensation. But this provision is of no avail to legalize slavery, for slavery must be _const.i.tutionally established_, before there can be any legal slaves to be emanc.i.p.ated; and it cannot be established without describing the persons who may be made slaves.