The Unconstitutionality of Slavery Part 5

1. The use of the words "our negroes" in the preamble to the const.i.tution of Virginia.

2. The mention of "slaves" in the preamble to the const.i.tution of Pennsylvania.

3. The provisions, in some of the const.i.tutions, for continuing in force the laws that had previously been "in force" in the colonies, except when altered by, or incompatible with the new const.i.tution.

4. The use, in several of the const.i.tutions, of the words "free" and "freemen."

As each of these terms and clauses may be claimed by some persons as recognitions of slavery, they are worthy of particular notice.

1. The preamble to the frame of government of the const.i.tution of Virginia speaks of negroes in this connexion, to wit: It charges George the Third, among other things, with "prompting _our negroes_ to rise in arms among us, those very negroes, whom, by an inhuman use of his negative, he hath refused us permission to exclude by law."

Here is no a.s.sertion that these "negroes" were slaves; but only that they were a cla.s.s of people whom the Virginians did not wish to have in the state, _in any capacity_--whom they wished "to exclude by law." The language, considered as legal language, no more implies that they were slaves, than the charge of having prompted "our women, children, farmers, mechanics, or our people with red hair, or our people with blue eyes, or our Dutchmen, or our Irishmen to rise in arms among us," would have implied that those portions of the people of Virginia were slaves.

And especially when it is considered that slavery had had no prior _legal_ existence, this reference to "negroes" authorizes no legal inference whatever in regard to slavery.

The rest of the Virginia const.i.tution is eminently democratic. The bill of rights declares "that all men are by nature equally free and independent, and have certain inherent rights,"* * * * "namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."

2. The preamble to the Pennsylvania const.i.tution used the word "slaves"

in this connexion. It recited that the king of Great Britain had employed against the inhabitants of that commonwealth, "foreign mercenaries, savages and slaves."

This is no acknowledgment that they themselves had any slaves of their own; much less that they were going to continue their slavery; for the const.i.tution contained provisions plainly incompatible with that. Such, for instance, is the following: which const.i.tutes the first article of the "Declaration of Rights of the Inhabitants," (i.e. of _all_ the inhabitants) "of the state of Pennsylvania."

1. "That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, among which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."

The 46th section of the frame of government is in these words.

"The Declaration of Rights is hereby declared to be a part of the const.i.tution of this commonwealth, and ought never to be violated on any pretence whatever."

Slavery was clearly impossible under these two const.i.tutional provisions, to say nothing of others.

2. Several of the const.i.tutions provide that all the laws of the colonies, previously "_in force_," should continue in force until repealed, _unless repugnant to some of the principles of the const.i.tutions themselves_.

Maryland, New-York, New-Jersey, South Carolina, and perhaps one or two others had provisions of this character. _North Carolina had none, Georgia none, Virginia none_. The slave laws of these three latter states, then, necessarily fell to the ground on this change of government.

Maryland, New-York, New-Jersey and South-Carolina had acts upon their statute books, _a.s.suming_ the existence of slavery, and pretending to legislate in regard to it; and it may perhaps be argued that those laws were continued in force under the provision referred to. But those acts do not come within the above description of "laws in force"--and for this reason, viz. the acts were originally unconst.i.tutional and void, as being against the charters, under which they were pa.s.sed; and therefore never had been _legally_ "in force," however they might have been actually carried into execution as a matter of might, or of pretended law, by the white race.

This objection applies to the slave acts of all the colonies. None of them could be continued under this provision.--None of them, legally speaking, were "laws in force."

But in particular states there were still other reasons against the colonial slave acts being valid under the new const.i.tutions. For instance, South Carolina had no statute (as has before been mentioned,) that designated her slaves with such particularity as to distinguish them from free persons; and for that reason none of her slave statutes were _legally_ "in force."

New-Jersey also was in the same situation. She had slave statutes; but none designating the slaves so as to distinguish them from the rest of her population. She had also one or more specific provisions in her const.i.tution incompatible with slavery, to wit: "That the common law of England* * * * _shall remain in force_, until altered by a future law of the legislature; such parts only as are repugnant to the rights and privileges contained in this charter." (Sec. 22.)

Maryland had also, in her new const.i.tution, a specific provision incompatible with the acts on her colonial statute book in regard to slavery, to wit:

"Sec. 3. That the _inhabitants_"--mark the word, for it includes _all_ the inhabitants--"that the _inhabitants_ of Maryland are ent.i.tled to the common law of England, and the trial by jury, according to the course of that law," &c.

This guaranty, of "the common law of England" to _all_ "the inhabitants of Maryland," without discrimination, is incompatible with any slave acts that existed on the statute book; and the latter would therefore have become void under the const.i.tution, even if they had not been previously void under the colonial charter.

4. Several of these state const.i.tutions have used the words "free" and "freemen."

For instance. That of South Carolina provided, (Sec. 13,) that the electors of that state should be "_free_ white men." That of Georgia (Art. 11,) and that of North Carolina (Art. 40,) use the term "free citizen." That of Pennsylvania (Sec. 42,) has the term "free denizen."

These four instances are the only ones I have found in all the eleven const.i.tutions, where any cla.s.s of persons are designated by the term "free." And it will be seen hereafter, from the connexion and manner in which the word is used, in these four cases, that it implies no recognition of slavery.

Several of the const.i.tutions, to wit, those of Georgia, South Carolina, North Carolina, Maryland, Delaware, Pennsylvania, New-York--but not Virginia, New-Jersey, Ma.s.sachusetts or New-Hampshire--repeatedly use the word "freeman" or "freemen," when describing the electors, or other members of the state.

The only questions that can arise from the use of these words "free" and "freeman," are these, viz: Are they used as the correlatives, or opposites of slaves? Or are they used in that political sense, in which they are used in the common law of England, and in which they had been used in the colonial charters, viz., to describe those persons possessed of the privilege of citizenship, or some corporate franchise, as distinguished from aliens, and those not enjoying franchises, although free from personal slavery?

If it be answered, that they are used in the sense first mentioned, to wit, as the correlatives or opposites of slavery--then it would be argued that they involved a recognition, at least, of the existence of slavery.

But this argument--whatever it might be worth to support an implied admission of the _actual_ existence of slavery--would be entirely insufficient to support an implied admission either of its _legal_, or its _continued_ existence. Slavery is so entirely contrary to natural right; so entirely dest.i.tute of authority from natural law; so palpably inconsistent with all the legitimate objects of government, that nothing but express and explicit provision can be recognized, in law, as giving it any sanction. No hints, insinuations, or unnecessary implications can give any ground for so glaring a departure from, and violation of all the other, the general, and the legitimate principles of the government.

If, then, it were admitted that the words "free" and "freemen" were used as the correlatives of slaves, still, of themselves, the words would give no direct or sufficient authority for laws establishing or continuing slavery. To call one man free, gives no legal authority for making another man a slave. And if, as in the case of these const.i.tutions, no express authority for slavery were given, slavery would be as much unconst.i.tutional as though these words had not been used. The use of these words in that sense, in a const.i.tution, under which all persons are presumed to be free, would involve no absurdity, although it might be gratuitous and unnecessary.

It is a rule of law, in the construction of all statutes, contracts and legal instruments whatsoever--_that is, those which courts design, not to invalidate, but to enforce_--that where words are susceptible of two meanings, one consistent, and the other inconsistent, with liberty, justice and right, that sense is always to be adopted, which is consistent with right, unless there be something in other parts of the instrument sufficient to prove that the other is the true meaning. In the case of no one of all these early state const.i.tutions, is there any thing in the other parts of them, to show that these words "free" and "freemen" are used as the correlatives of slavery. The rule of law, therefore, is imperative that they must be regarded in the sense consistent with liberty and right.

If this rule, that requires courts to give an innocent construction to all words that are susceptible of it, were not imperative, courts might, at their own pleasure, pervert the honest meaning of the most honest statutes and contracts, into something dishonest, for there are almost always words used in the most honest legislation, and in the most honest contracts, that, by implication or otherwise, are capable of conveying more than one meaning, and even a dishonest meaning. If courts _could_ lawfully depart from the rule, that requires them to attribute an honest meaning to all language that is susceptible of such a meaning, it would be nearly impossible to frame either a statute or a contract, which the judiciary might not _lawfully_ pervert to some purpose of injustice.

There would obviously be no security for the honest administration of any honest law or contract whatsoever.

This rule applies as well to const.i.tutions as to contracts and statutes; for const.i.tutions are but contracts between the people, whereby they grant authority to, and establish law for the government.

What other meaning, then, than as correlatives of slavery, are the words "free" and "freemen" susceptible of, as they are used in the early state const.i.tutions?

Among the definitions given by Noah Webster are these:

"_Freeman._ One who enjoys, or is ent.i.tled to a franchise or peculiar privilege; as the freemen of a city or state."

"_Free._ Invested with franchises; enjoying certain immunities; with of--as a man _free_ of the city of London."

"Possessing without va.s.salage, or slavish conditions; as a man _free_ of his farm--"

In England, and in the English law throughout, as it existed before and since the emigration of our ancestors to this country, the words "free"

and "freemen" were political terms in the most common use; and employed to designate persons enjoying some franchise or privilege, from the most important one of general citizenship in the nation, to the most insignificant one in any incorporated city, town or company. For instance: A man was said to be a "free British subject"--meaning thereby that he was a naturalized or native born citizen of the British government, as distinguished from an alien, or person neither naturalized nor native born.

Again. A man was said to be "free of a particular trade in the city of London"--meaning thereby, that by the bye-laws of the city of London, he was permitted to follow that trade--a privilege which others could not have without having served an apprenticeship in the city, or having purchased the privilege of the city government.

The terms "free" and "freemen" were used with reference to a great variety of privileges, which, in England, were granted to one man, and not to another. Thus members of incorporated companies were called "_freemen_ of the company," or "_free_ members of the company;" and were said to be "_free_ of the said company." The citizens of an incorporated city were called "the freemen of the city," as "freemen of the city of London."

In Jacob's Law Dictionary the following definitions, among others, are given of the word "freemen."

"_Freeman--liber h.o.m.o._"* * * * "In the distinction of a freeman from a va.s.sal under the feudal policy, _liber h.o.m.o_ was commonly opposed to _va.s.sus_, or _va.s.salus_; the former denoting an _allodial_ proprietor; the latter one who held of a superior."

"The t.i.tle of a _freeman_ is also given to any one admitted to the freedom of a corporate town, or of any other corporate body, consisting, among other members, of those called _freemen_."

"There are three ways to be a _freeman_ of London; by servitude of an apprenticeship; by birthright, as being the son of a _freeman_; and by redemption, i.e. by purchase, under an order of the court of aldermen."

"The customs of the city of London shall be tried by the certificate of the Mayor and Aldermen,* * * * as the custom of distributing the effects of freemen deceased: of enrolling apprentices, or that he who is _free of one trade_ may use another."

"Elections of aldermen and common-councilmen are to be by _freemen_ householders."

"An agreement on marriage, that the husband shall take up the freedom of London, binds the distribution of the effects."