The Unconstitutionality of Slavery Part 7

4. No other meaning can be given to the word "free" in this case, without making the sentence an absurd, or, at least, a foolish and inconsistent one. For instance,--The word "free" is joined to the word "citizen." What reason could there be in applying the term "free" to the word "citizen," if the word "free" were used as the correlative of slavery? Such an use of the word would imply that _some_ of the "citizens" were, or might be slaves--which would be an absurdity. But used in the other sense, it implies only that some citizens had franchises not enjoyed by others; such, perhaps, as the right of suffrage, and the right of being elected to office; which franchises were only enjoyed by a part of the "citizens." All who were born of English parents, for instance, were "citizens," and ent.i.tled to the protection of the government, and freedom of trade and occupation, &c., &c., and in these respects were distinguished from aliens.--Yet a property qualification was necessary, in some, if not all the States, to ent.i.tle even such to the franchises of suffrage, and of eligibility to office.

The terms "free inhabitants" and "people" were probably used as synonymous either with "free citizens," or with "citizens" not "free"--that is, not possessing the franchises of suffrage and eligibility to office.

Mr. Madison, in the 42d No. of the Federalist, in commenting upon the power given to the general government by the new const.i.tution, of naturalizing aliens, refers to this clause in the Articles of Confederation; and takes it for granted that the word "free" was used in that political sense, in which I have supposed it to be used--that is, as distinguishing "citizens" and the "inhabitants" or "people" proper, from aliens and persons not allowed the franchises enjoyed by the "inhabitants" and "people" of the States.--Even the privilege of residence he a.s.sumes to be a franchise ent.i.tling one to the denomination of "free."

He says: "The dissimilarity in the rules of naturalization," (i.e. in the rules established by the separate states, for under the confederation each state established its own rules of naturalization,) "has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of confederation, it is declared, 'that the _free inhabitants_ of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be ent.i.tled to all the privileges and immunities of _free citizens_ in the several states; and _the people_ of each state shall, in every other, enjoy all the privileges of trade and commerce,' &c. There is a confusion of language here, which is remarkable. Why the terms _free inhabitants_ are used in one part of the article, _free citizens_ in another, and _people_ in another; or what was meant by superadding to 'all privileges and immunities of free citizens,' 'all the privileges of trade and commerce,' cannot easily be determined. It seems to be a construction scarcely avoidable, however, that those who come under the denomination of _free inhabitants_ of a state, although not citizens of such state, are ent.i.tled, in every other state, to all the privileges of _free citizens_ of the latter; that is, to greater privileges than they may be ent.i.tled to in their own state; so that it may be in the power of a particular state, or rather every state is laid under the necessity, not only to confer the rights of citizenship in other states upon any whom it may admit to such rights within itself, but upon any whom it may allow to become inhabitants within its jurisdiction. But were an exposition of the term 'inhabitant' to be admitted, which would confine the stipulated privileges to citizens alone, the difficulty is diminished only, not removed. The very improper power would still be retained by each state, of naturalizing aliens in every other state. In one state, residence for a short time confers all the rights of citizenship; in another, qualifications of greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter, may, by previous residence only in the former, elude his incapacity, and thus the law of one state be preposterously rendered paramount to the laws of another, within the jurisdiction of the other.

"We owe it to mere casualty, that very serious embarra.s.sments on this subject have been hitherto escaped. By the laws of several states, certain description of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent, not only with the rights of citizenship, but with the privileges of residence. What would have been the consequence, if such persons, by residence, or otherwise, had acquired the character of citizens under the laws of another state, and then a.s.serted their rights as such, both to residence and citizenship, within the state proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted of too serious a nature, not to be provided against. The new const.i.tution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the confederation on this head, by authorizing the general government to establish an uniform rule of naturalization throughout the United States."

Throughout this whole quotation Mr. Madison obviously takes it for granted that the word "free" is used in the articles of confederation, as the correlative of aliens.--And in this respect he no doubt correctly represents the meaning then given to the word by the people of the United States. And in the closing sentence of the quotation, he virtually a.s.serts that such is the meaning of the word "free" in "the new const.i.tution."

CHAPTER VIII.

THE CONSt.i.tUTION OF THE UNITED STATES.

We come now to the period commencing with the adoption of the const.i.tution of the United States.

We have already seen that slavery had not been authorized or established by any of the fundamental const.i.tutions or charters that had existed previous to this time; that it had always been a mere abuse sustained by the common consent of the strongest party, in defiance of the avowed const.i.tutional principles of their governments. And the question now is, whether it was const.i.tutionally established, authorized or sanctioned by the const.i.tution of the United States?

It is perfectly clear, in the first place, that the const.i.tution of the United States did not, _of itself, create or establish_ slavery as a _new_ inst.i.tution; or even give any authority to the state governments to establish it as a new inst.i.tution.--The greatest sticklers for slavery do not claim this. The most they claim is, that it recognized it as an inst.i.tution already legally existing, under the authority of the state governments; and that it virtually guarantied to the states the right of continuing it in existence during their pleasure. And this is really the only question arising out of the const.i.tution of the United States on this subject, viz: whether it _did_ thus recognize and sanction slavery as an _existing_ inst.i.tution?

This question is, in reality, answered in the negative by what has already been shown; for if slavery had no const.i.tutional existence, under the state const.i.tutions, prior to the adoption of the const.i.tution of the United States, then it is absolutely certain that the const.i.tution of the United States did _not_ recognize it as a const.i.tutional inst.i.tution; for it cannot, of course, be pretended that the United States const.i.tution recognized, as const.i.tutional, any state inst.i.tution that did not const.i.tutionally exist.

Even if the const.i.tution of the United States had _intended_ to recognize slavery, as a const.i.tutional _state_ inst.i.tution, such intended recognition would have failed of effect, and been legally void, because slavery then had no const.i.tutional existence to be recognized.

Suppose, for an ill.u.s.tration of this principle, that the const.i.tution of the United States had, by implication, plainly taken it for granted that the state legislatures had power--derived from the _state_ const.i.tutions--to order arbitrarily that infant children, or that men without the charge of crime, should be maimed--deprived, for instance, of a hand, a foot, or an eye. This intended recognition, on the part of the const.i.tution of the United States, of the legality of such a practice, would obviously have failed of all legal effect--would have been mere surplussage--if it should appear, from an examination of the state const.i.tutions themselves, that they had really conferred no such power upon the legislatures. And this principle applies with the same force to laws that would arbitrarily make men or children slaves, as to laws that should arbitrarily order them to be maimed or murdered.

We might here safely rest the whole question--for no one, as has already been said, pretends that the const.i.tution of the United States, by its own authority, created or authorized slavery as a new inst.i.tution; but only that it intended to recognize it as one already established by authority of the state const.i.tutions. This intended recognition--if there were any such--being founded on an error as to what the state const.i.tutions really did authorize, necessarily falls to the ground, a defunct intention.

We make a stand, then, at this point, and insist that the main question--the only material question--is already decided against slavery; and that it is of no consequence what recognition or sanction the const.i.tution of the United States may have intended to extend to it.

The const.i.tution of the United States, at its adoption, certainly took effect upon, and made citizens of _all_ "the people of the United States," who were _not slaves_ under the state const.i.tutions. No one can deny a proposition so self-evident as that. If, then, the _State_ const.i.tutions, then existing, authorized no slavery at all, the const.i.tution of the United States took effect upon, and made citizens of _all_ "the people of the United States," without discrimination. And if _all_ "the people of the United States" were made citizens of the United States, by the United States const.i.tution, at its adoption, it was then forever too late for the _state_ governments to reduce any of them to slavery. They were thenceforth citizens of a higher government, under a const.i.tution that was "the supreme law of the land," "any thing in the const.i.tution or laws of the states to the contrary notwithstanding." If the state governments could enslave citizens of the United States, the state const.i.tutions, and not the const.i.tution of the United States, would be the "supreme law of the land"--for no higher act of supremacy could be exercised by one government over another, than that of taking the citizens of the latter out of the protection of their government, and reducing them to slavery.

SECONDLY.

Although we might stop--we yet do not choose to stop--at the point last suggested. We will now go further, and attempt to show, specifically from its provisions, that the const.i.tution of the United States, not only does not recognize or sanction slavery, as a legal inst.i.tution, but that, on the contrary, it presumes all men to be free; that it positively denies the right of property in man; and that it, _of itself_, makes it impossible for slavery to have a legal existence in any of the United States.

In the first place--although the a.s.sertion is constantly made, and rarely denied, yet it is palpably a mere begging of the whole question in favor of slavery, to say that the const.i.tution _intended_ to sanction it; for if it _intended_ to sanction it, it _did_ thereby necessarily sanction it, (that is, if slavery then had any const.i.tutional existence to be sanctioned.) The _intentions_ of the const.i.tution are the only means whereby it sanctions any thing. And its intentions necessarily sanction everything to which they apply, and which, in the nature of things, they are competent to sanction. To say, therefore, that the const.i.tution _intended_ to sanction slavery, is the same as to say that it _did_ sanction it; which is begging the whole question, and subst.i.tuting mere a.s.sertion for proof.

Why, then, do not men say distinctly, that the const.i.tution _did_ sanction slavery, instead of saying that it _intended_ to sanction it?

We are not accustomed to use the word "_intention_," when speaking of the other grants and sanctions of the const.i.tution. We do not say, for example, that the const.i.tution _intended_ to authorize congress "to coin money," but that it _did_ authorize them to coin it. Nor do we say that it intended to authorize them "to declare war;" but that it did authorize them to declare it. It would be silly and childish to say merely that it _intended_ to authorize them "to coin money," and "to declare war," when the language authorizing them to do so, is full, explicit and positive. Why, then, in the case of slavery, do men say merely that the const.i.tution _intended_ to sanction it, instead of saying distinctly, as we do in the other cases, that it _did_ sanction it? The reason is obvious. If they were to say unequivocally that it _did_ sanction it, they would lay themselves under the necessity of pointing to the _words_ that sanction it; and they are aware that the _words alone_ of the const.i.tution do not come up to that point. They, therefore, a.s.sert simply that the const.i.tution _intended_ to sanction it; and they then attempt to support the a.s.sertion by quoting certain words and phrases, which they say are _capable_ of covering, or rather of concealing such an intention; and then by the aid of exterior, circ.u.mstantial and historical evidence, they attempt to enforce upon the mind the conclusion that, as matter of fact, such was the intention of those who _drafted_ the const.i.tution; and thence they finally infer that such was the intention of the const.i.tution itself.

The error and fraud of this whole procedure--and it is one purely of error and fraud--consists in this--that it artfully subst.i.tutes the supposed intentions of those who drafted the const.i.tution, for the intentions of the const.i.tution itself; and, secondly, it personifies the const.i.tution as a crafty individual; capable of both open and secret intentions; capable of legally partic.i.p.ating in, and giving effect to all the subtleties and double dealing of knavish men; and as actually intending to secure slavery, while openly professing to "secure and establish liberty and justice." It personifies the const.i.tution as an individual capable of having private and criminal intentions, which it dare not distinctly avow, but only darkly hint at, by the use of words of an indefinite, uncertain and double meaning, whose application is to be gathered from external circ.u.mstances.

The falsehood of all these imaginings is apparent, the moment it is considered that the const.i.tution is not a _person_, of whom an "intention," not legally expressed, can be a.s.serted; that it has none of the various and selfish pa.s.sions and motives of action, which sometimes prompt _men_ to the practice of duplicity and disguise; that it is merely a written legal instrument; that, as such, it must have a fixed, and not a double meaning; that it is made up entirely of intelligible words; and that it has, and _can_ have, no soul, no "_intentions_," no motives, no being, no personality, except what those words alone express or imply. Its "intentions" are nothing more nor less than the legal meaning of its words. Its intentions are no guide to its legal meaning--as the advocates of slavery all a.s.sume; but its legal meaning is the sole guide to its intentions. This distinction is all important to be observed; for if we can gratuitously a.s.sume the intentions of a legal instrument to be what we may wish them to be, and can then strain or pervert the ordinary meaning of its words, in order to make them utter those intentions, we can make any thing we choose of any legal instrument whatever. The legal meaning of the words of an instrument is, therefore, necessarily our only guide to its intentions.

In ascertaining the legal meaning of the words of the const.i.tution, these rules of law, (the reasons of which will be more fully explained hereafter,) are vital to be borne constantly in mind, viz: 1st, that no intention in violation of natural justice and natural right, (like that to sanction slavery,) can be ascribed to the const.i.tution, unless that intention be expressed in terms that are _legally competent_ to express such an intention; and, 2d, that no terms, except those that are plenary, express, explicit, distinct, unequivocal, _and to which no other meaning can be given, are legally competent_ to authorize or sanction any thing contrary to natural right. The rule of law is materially different as to the terms necessary to legalize and sanction any thing contrary to natural right, and those necessary to legalize things that are consistent with natural right. The latter may be sanctioned by implication and inference; the former only by inevitable implication, or by language that is full, definite, express, explicit, unequivocal, and whose _unavoidable_ import is to sanction the _specific wrong_ intended.

To a.s.sert, therefore, that the const.i.tution _intended_ to sanction slavery, is, in reality, equivalent to a.s.serting that the _necessary_ meaning, the _unavoidable_ import of the _words alone_ of the const.i.tution, come fully up to the point of a clear, definite, distinct, express, explicit, unequivocal, necessary and peremptory sanction of the specific thing, _human slavery, property in man_. If the _necessary_ import of its _words alone_ do but fall an iota short of this point, the instrument gives, and, legally speaking, intended to give no legal sanction to slavery. Now, who can, in good faith, say that the _words alone_ of the const.i.tution come up to this point? No one, who knows any thing of law, and the meaning of words. Not even the name of the thing, alleged to be sanctioned, is given. The const.i.tution itself contains no designation, description, or necessary admission of the existence of such a thing as slavery, servitude, or the right of property in man. We are obliged to go out of the instrument, and grope among the records of oppression, lawlessness and crime--records unmentioned, and of course unsanctioned by the const.i.tution--to _find_ the thing, to which it is said that the words of the const.i.tution apply. And when we have found this thing, which the const.i.tution dare not name, we find that the const.i.tution has sanctioned it, (if at all,) only by enigmatical words, by unnecessary implication and inference, by inuendo and double entendre, and under a name that entirely fails of describing the thing.

Every body must admit that the const.i.tution itself contains no language, from which _alone_ any court, that were either strangers to the prior existence of slavery, or that did not a.s.sume its prior existence to be legal, could legally decide that the const.i.tution sanctioned it. And this is the true test for determining whether the const.i.tution does, or does not, sanction slavery, viz: whether a court of law, strangers to the prior existence of slavery, or not a.s.suming its prior existence to be legal--looking only at the naked language of the instrument--could, consistently with legal rules, judicially determine that it sanctioned slavery. Every lawyer, who at all deserves that name, knows that the claim for slavery could stand no such test. The fact is palpable, that the const.i.tution contains no such legal sanction; that it is only by unnecessary implication and inference, by inuendo and double-entendre, by the aid of exterior evidence, the a.s.sumption of the prior legality of slavery, and the gratuitous imputation of criminal intentions that are not avowed in legal terms, that any sanction of slavery, (as a legal inst.i.tution,) can be extorted from it.

But legal rules of interpretation entirely forbid and disallow all such implications, inferences, inuendos and double-entendre, all aid of exterior evidence, all a.s.sumptions of the prior legality of slavery, and all gratuitous imputations of criminal unexpressed intentions; and consequently compel us to come back to the _letter_ of the instrument, and find _there_ a distinct, clear, necessary, peremptory sanction for slavery, or to surrender the point.

To the unprofessional reader these rules of interpretation will appear stringent, and perhaps unreasonable and unsound. For his benefit, therefore, the reasons on which they are founded, will be given. And he is requested to fix both the reasons and the rules fully in his mind, inasmuch as the whole legal meaning of the const.i.tution, in regard to slavery, may perhaps be found to turn upon the construction which these rules fix upon its language.

But before giving the reasons of this rule, let us offer a few remarks in regard to _legal_ rules of interpretation in general. Many persons appear to have the idea that these rules have no foundation in reason, justice or necessity; that they are little else than whimsical and absurd conceits, arbitrarily adopted by the courts. No idea can be more erroneous than this. The rules are absolutely indispensable to the administration of the justice arising out of any cla.s.s of legal instruments whatever--whether the instruments be simple contracts between man and man, or statutes enacted by legislatures, or fundamental compacts or const.i.tutions of government agreed upon by the people at large. In regard to all these instruments, the _law_ fixes, and necessarily must fix their meaning; and for the obvious reason, that otherwise their meaning could not be fixed at all. The parties to the simplest contract may disagree, or pretend to disagree, as to its meaning, and of course as to their respective rights under it. The different members of a legislative body, who vote for a particular statute, may have different intentions in voting for it, and may therefore differ, or pretend to differ, as to its meaning. The people of a nation may establish a compact of government. The motives of one portion may be to establish liberty, equality and justice; and they may think, or pretend to think that the words used in the instrument convey that idea. The motives of another portion may be to establish the slavery or subordination of one part of the people, and the superiority or arbitrary power of the other part; and they may think, or pretend to think, that the language agreed upon by the whole authorizes such a government. In all these cases, unless there were some rules of law, applicable alike to all instruments, and competent to settle their meaning, their meaning could not be settled; and individuals would of necessity lose their rights under them. _The law, therefore, fixes their meaning_; and the rules by which it does so, are founded in the same justice, reason, necessity and truth, as are other legal principles, and are for that reason as inflexible as any other legal principles whatever. They are also simple, intelligible, natural, obvious. Every body are presumed to know them, as they are presumed to know any other legal principles. No one is allowed to plead ignorance of them, any more than of any other principle of law. All persons and people are presumed to have framed their contracts, statutes and const.i.tutions with reference to them. And if they have not done so--if they have said black when they meant white, and one thing when they meant another, they must abide the consequences. The law will presume that they meant what they said. No one, in a court of justice, can claim any rights founded on a construction different from that which these rules would give to the contract, statute, or const.i.tution, under which he claims. The judiciary cannot depart from these rules, for two reasons. First, because the rules embody in themselves principles of justice, reason and truth; and are therefore as necessarily law as any other principles of justice, reason and truth; and, secondly, because if they could lawfully depart from them in one case, they might in another, at their own caprice.

Courts could thus at pleasure become despotic; all certainty as to the legal meaning of instruments would be destroyed; and the administration of justice, according to the true meaning of contracts, statutes and const.i.tutions, would be rendered impossible.

What, then, are some of these rules of interpretation?

One of them, (as has been before stated,) is, that where words are susceptible of two meanings, one consistent, and the other inconsistent, with justice and natural right, that meaning, and _only that_ meaning, which is consistent with right, shall be attributed to them--unless other parts of the instrument overrule that interpretation.

Another rule, (if indeed it be not the same,) is, that no language, except that which is peremptory, and no implication, except one that is inevitable, shall be held to authorize or sanction any thing contrary to natural right.

Another rule is, that no _extraneous or historical evidence_ shall be admitted to fix upon a statute an unjust or immoral meaning, when the words themselves of the act are susceptible of an innocent one.

One of the reasons of these stringent and inflexible rules, doubtless is, that judges have always known that, in point of fact, natural justice was itself law, and that nothing inconsistent with it could be made law, even by the most explicit and peremptory language that legislatures could employ.--But judges have always, in this country and in England, been dependent upon the executive and the legislature for their appointments and salaries, and been amenable to the legislature by impeachment. And as the executive and legislature have always enacted more or less statutes, and had more or less purposes to accomplish, that were inconsistent with natural right, judges have seen that it would be impossible for them to retain their offices, and at the same time maintain the integrity of the law against the will of those in whose power they were. It is natural also that the executive should appoint, and that the legislature should approve the appointment of no one for the office of judge, whose integrity they should suppose would stand in the way of their purposes.--The consequence has been that all judges, (probably without exception,) though they have not dared deny, have yet in practice yielded the vital principle of law; and have succ.u.mbed to the arbitrary mandates of the other departments of the government, so far as to carry out their enactments, though inconsistent with natural right. But, as if sensible of the degradation and criminality of so doing, they have made a stand at the first point at which they could make it, without bringing themselves in a direct collision with those on whom they were dependent. And that point is, that they will administer, as law, no statute, that is contrary to natural right, unless its language be so explicit and peremptory, that there is no way of evading its authority, but by flatly denying the authority of those who enacted it. They (the court) will themselves add nothing to the language of the statute, to help out its supposed meaning. They will imply nothing, infer nothing, and a.s.sume nothing, except what is inevitable; they will not go out of the letter of the statute in search of any _historical_ evidence as to the meaning of the legislature, to enable them to effectuate any _unjust_ intentions not fully expressed by the statute itself. Wherever a statute is supposed to have in view the accomplishment of any unjust end, they will apply the most stringent principles of construction to prevent that object's being effected. They will not go a hair's breadth beyond the literal or inevitable import _of the words_ of the statute, even though they should be conscious, all the while, that the real intentions of the makers of it would be entirely defeated by their refusal. The rule, (as has been already stated,) is laid down by the supreme court of the United States in these words:

"Where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the legislative intention must be expressed with _irresistible clearness_, to induce a court of justice to suppose a design to effect such objects."--(_United States_ vs. _Fisher et al., 2 Cranch_, 390.)[18]

Such has become the settled doctrine of courts. And although it does not come up to the true standard of law, yet it is good in itself, so far as it goes, and ought to be unflinchingly adhered to, not merely for its own sake, but also as a scaffolding, from which to erect that higher standard of law, to wit, that no language or authority whatever can legalize any thing inconsistent with natural justice.[19]

Another reason for the rules before given, against all constructions, implications and inferences--except inevitable ones--in favor of injustice, is, that but for them we should have no guaranty that our honest contracts, or honest laws would be honestly administered by the judiciary. It would be nearly or quite impossible for men, in framing their contracts or laws, to use language so as to exclude every possible implication in favor of wrong, if courts were allowed to resort to such implications. _The law therefore excludes them_; that is, the ends of justice--the security of men's rights under their honest contracts, and under honest legislative enactments--make it imperative upon courts of justice to ascribe an innocent and honest meaning to all language that will possibly bear an innocent and honest meaning. If courts of justice could depart from this rule for the purpose of upholding what was contrary to natural right, and could employ their ingenuity in spying out some implied or inferred authority, for sanctioning what was in itself dishonest or unjust, when such was not the _necessary_ meaning of the language used, there could be no security whatever for the honest administration of honest laws, or the honest fulfilment of men's honest contracts. Nearly all language, on the meaning of which courts adjudicate, would be liable, at the caprice of the court, to be perverted from the furtherance of honest, to the support of dishonest purposes. Judges could construe statutes and contracts in favor of justice or injustice, as their own pleasure might dictate.

Another reason of the rules, is, that as governments have, and can have no legitimate objects or powers opposed to justice and natural right, it would be treason to all the legitimate purposes of government, for the judiciary to give any other than an honest and innocent meaning to any language, that would bear such a construction.

The same reasons that forbid the allowance of any unnecessary implication or inference in favor of a wrong, in the construction of a statute, forbids also the introduction of any _extraneous or historical_ evidence to prove that the intentions of the legislature were to sanction or authorize a wrong.

The same rules of construction, that apply to statutes, apply also to all those private contracts between man and man, _which courts actually enforce_. But as it is both the right and the duty of courts to invalidate altogether such private contracts as are inconsistent with justice, they will admit evidence exterior to their words, _if offered by a defendant for the purpose of invalidating them_. At the same time, a plaintiff, or party that wishes to set up a contract, or that claims its fulfilment, will not be allowed to offer any evidence exterior to its words, to prove that the contract is contrary to justice--because, if his evidence were admitted, it would not make his unjust claim a legal one; but only invalidate it altogether. But as courts do not claim the right of invalidating statutes and const.i.tutions, they will not admit evidence, exterior to their language, to give them such a meaning, that they ought to be invalidated.

I think no one--no lawyer, certainly--will now deny that it is a legal rule of interpretation--that must be applied to all statutes, and also to all private contracts _that are to be enforced_--that an innocent meaning, _and nothing beyond an innocent meaning_, must be given to all language that will possibly bear such a meaning. All will probably admit that the rule, as laid down by the supreme court of the United States, is correct, to wit, that "where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the legislative intention must be expressed with _irresistible clearness_, to induce a court of justice to suppose a design to effect such objects."

But perhaps it will be said that these rules, which apply to all statutes, and to all private contracts that are to be enforced, do not apply to the const.i.tution. And why do they not? No reason whatever can be given. A const.i.tution is nothing but a contract, entered into by the ma.s.s of the people, instead of a few individuals. This contract of the people at large becomes a law unto the judiciary that administer it, just as private contracts, (so far as they are consistent with natural right,) are laws unto the tribunals that adjudicate upon them. All the essential principles that enter into the question of obligation, in the case of a private contract, or a legislative enactment, enter equally into the question of the obligation of a contract agreed to by the whole ma.s.s of the people. This is too self-evident to need ill.u.s.tration.

Besides, is it not as important to the safety and rights of all interested, that a const.i.tution or compact of government, established by a whole people, should be so construed as to promote the ends of justice, as it is that a private contract or a legislative enactment should be thus construed? Is it not as necessary that some check should be imposed upon the judiciary to prevent them from perverting, at pleasure, the whole purpose and character of the government, as it is that they should be restrained from perverting the meaning of a private contract, or a legislative enactment? Obviously written compacts of government could not be upheld for a day, if it were understood by the ma.s.s of the people that the judiciary were at liberty to interpret them according to their own pleasure, instead of their being restrained by such rules as have now been laid down.

Let us now look at some of the provisions of the const.i.tution, and see what crimes might be held to be authorized by them, if their meaning were not to be ascertained and restricted by such rules of interpretation as apply to all other legal instruments.

The second amendment to the const.i.tution declares that "the right of the people to keep and bear arms shall not be infringed."

This right "to keep and bear arms," implies the right to use them--as much as a provision securing to the people the right to buy and keep food, would imply their right also to eat it. But this implied right to use arms, is only a right to use them in a manner consistent with natural rights--as, for example, in defence of life, liberty, chast.i.ty, &c. Here is an innocent and just meaning, of which the words are susceptible; and such is therefore the _extent_ of their legal meaning.

If courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right, they could imply a const.i.tutional authority in the people to use arms, not merely for the just and innocent purposes of defence, but also for the criminal purposes of aggression--for purposes of murder, robbery, or any other acts of wrong to which arms are capable of being applied. The mere _verbal_ implication would as much authorize the people to use arms for unjust, as for just, purposes. But the _legal_ implication gives only an authority for their innocent use. And why? Simply because justice is the end of all law--the legitimate end of all compacts of government. It is itself law; and there is no right or power among men to destroy its obligation.

Take another case. The const.i.tution declares that "Congress shall have power to _regulate commerce_ with foreign nations, and among the several states, and with the Indian tribes."