If Parliament will enact a law that conflicts with natural justice, it shall make known its intentions, by language so clear, explicit and unequivocal, as to leave no room for construction. And, were it not for the absolute despotic power of Parliament, that holds itself above, and independent of the people, the English judiciary would go the full length of the doctrine, that all laws which conflict with the claims of natural justice are void. As it is, this is the spirit of the British Administration, and so far as their precedents are of any just force, and authority, in this country, they would authorize our courts to go the entire doctrine.—For here we do not recognize the existence of absolute, despotic power, either in the Government or people. All civil and political power, in this country, ia limited by the inalienability of man's natural rights.
CHAPTER V.
The Nation are estopped from sanctioning or guaranteeing
human Slavery, by the Declaration of Independence
When a man or body of men, in their individual, or associated capacity, deny the existence of certain rights and powers in others, circumstance like themselves, and base all of their own individual or governmental action upon the
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truth of those positions, if they afterwards attempt to assume those rights, and exercise those powers, in acting upon the rights of others, their actions and assumptions, in all such matters, are confessedly without authority and void.
Hence the affirmation of the American Colonies as to the existence of certain great fundamental principals, described as self-evident truths, puts it forever out of their power, rightfully, to establish, or maintain human slavery.
It has been said by MR. PHILIPS, in his review of MR. SPOONER, "that the DECLARATION OF INDEPENDENCE had nothing to do with slavery." That, "that paper dissolved the political bands that bound the Colonies to England, and that was all it did, and all it intended to do."
What had the affirmation of those great, self-evident truths to do with dissolving the political bands that bound the Colonies to Great Britain? What had the doctrine, that governments "derived all their just powers from the consent of the governed," to do with sundering such bands? What had the declaration, "that when a long train of abuses and usurpations, pursuing invariably the same object evinces a design," (on the part of ths government,) "to reduce" [the subjects,] "under absolute despotism, it is their right, it is their duty to throw off such government, and provide new guards for their future security," to do with declaring themselves independent?
The plain answer is, these truths were uttered as the foundation of their right, thus to dissolve those "political bands," and establish a government for themselves, "laying its foundations on such principles, and organizing its powers in such forms, as to them seemed most likely to secure their happinness and safety." These truths were uttered as the great law of God,
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which arose in authority, above all political constitutions, and governmental powers, and guaranteed to them, as men, the authority by which they were about to act.
And they claimed no peculiar rights above their fellows. They set up no pretence, that any special grant had been made to them. They predicated their authority upon the equal, common rights of man. They claimed all their powers by virtue of the common humanity, and, by that claim, accorded to all other men the same rights and powers.
By denying to the government of Great Britain, the rightful power to violate these privileges in their own persons, they denied to themselves the rightful power to violate them in the persons of others; and by this solemn act of theirs, they are forever estopped from setting up such claim. The Declaration of Independence was a solemn deed of acquittance, of all rightful power to violate the natural and inalienable rights of man, acknowledged before God, in the presence of the world. That deed of acquittance contained the following covenants.—
1st. That life, liberty and the pursuit of happiness, are gifts from God to man, and therefore the natural and inalienable rights of all.
2nd. That governments "derive all their just powers from the consent of the governed," and are established for the protection of these natural rights.
3rd. That when governments become destructive of these ends, for which they are established, they act wthout authority, and the people are at liberty to resist, and throw them off.
4th. That when the government evinces a design to disregard the ends of justice, and reduce her subjects under
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absolute despotism, it is their duty to overthrow such government, and establish new guards for their future security.
Who were they that thus executed this great deed of aquittance? For, and in whose behalf was it thus executed?
They were the Representatives of the THIRTEEN UNITED COLONIES in general congress assembled; and they assumed to do it in the name, and by the authority of the good people of those colonies. They were the chosen Embassadors of all the States; emphatically the leading minds of the nation. They were such men as Jefferson, Hancock, Adams, Garry, Wythe, Carrol, Sherman, Morris, Rush, Franklin, and Lee. They were men selected by the people for their wisdom, virtue, prudence, patriotism; and empowered to speak and decide for their respective nations. They were men whose sentiments were known, and approved by the people. They were to utter forth the PEOPLE'S determinations.
This was no sudden, or rash act of theirs. For years they had witnessed the steady encroachments of the British Government upon their rights and liberties. They had become familiar with the great doctrines they were about promulgating to the world as the basis of their action. Reflection, Reason, Judgment, Consciousness had demonstrated their eternal truths; history and experience had taught their necessity; and humanity had proclaimed their value, and taught them to exclaim "Liberty or Death."
They were not uttered under the influence of passion, as the outburst of a transcient enthusiasm. They knew they must be prepared to vindicate these truths, at the expense of blood, and treasure. The step they were about to take was
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a final one, from which there was no retreat. It would necessarily involve them in a conflict with the most powerful Nation on earth,—with a nation, who was master of the Ocean—a nation in whose hands were even then, the strong defences of their own country; and lastly, a nation of fathers and brothers:—A country they had even been proud to call their mother, and to which they were bound by the strongest ties of sympathy and affection. This then was not the effect of haste, but the work of cool heads and strong resolute, and brave hearts. They were inspired by all that was noble, great and true; and as those venerable men sat in that Hall, and one by one, executed that deed for freedom, the sacred stillness of that hour betokened the audience of angels. Then they rose above the mortal and uttered forth the Law of God.
And did their constituents repudiate these doctrines? No! They flew to arms, and for seven long years endured toil, privation, exposure, and eminent peril, fighting, in vindication of those truths. There was not a town, or a hamlet in the land, that was not made vocal with the ratifying shout. The Declaration of Independence was read in Churches, in Court-houses, in Work-shops, in the field, and by the way; and one long, universal amen went pealing up to heaven in ratification of that Deed. The day on which it was published, became an era in the world's history. There was no battle fought, or victory won, by the force of arms; but it was a day made holy by the advent of the great doctrines of Universal Freedom—
Thus we have seen, that the Inalienable Right of all men to liberty, was proclaimed by the representatives of the thir-
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teen, united colonies, in congress assembled, in tbe name and by the authority of the good people of those colonies: that the people ratified the proclamation in the most earnest and solemn manner; and that by so doing they have denied to themselves the power to trample upon the rights and liberties of their fellow men.
According to their views, there must be a true source of all political power, and there must necessarily be a limit to all political power, in all just governments. This scource of power was the people; the limit of that power was the inalienability of the rights of man. Hence they repudiated the dogma that government possessed absolute, despotic power, or could possess any such power, for the people had no such powers to delegate. Government could never legitimately trample on the rights of man, for the two-fold reason, first, because it could never rightfully acquire any such authority, and secondly, such action would be destructive of the ends for which government was created and would re-invest the people with all their original authority.
Let this then be remembered, in construing the constitution formed by these men, who, for themselves and the people they represented, disclaimed all such authority, and we shall find that no language found in that instrument, no force of circumstances, no historical proof, not even all combined, can make that instrument legally recognize, sanction, or guaranty human slavery.
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CHAPTER VI.
The limit and extent of Constitutional and Legislature authority.
It seems unnecessary in this work, to devote any time to the consideration of rules of interpretation and construction. The provisions of the Constitution, relating to this subject, are so simple and easy to be understood, that no interpretation or construction seems necessary. We can indulge the friends of slavery, with an unwarantable degree of latitude in the construction or interpretation of that instrument, and still defend it, from the gross scandal of supporting slavery. In truth, the greatest latitudinarian in the country, would find it difficult, with the aid of his loosest and most liberal rules of Construction, to extort from it, by a connected train of reasoning, any argument in support of slavery.
Still it may not be amiss, to offer a few thoughts on the subject of these rules, for the purpose of showing the proslavery interpreter how utterly without foundation he is, in his effort to engraft slavery upon the Constitution of the United States.
It is a fundamental principle of our government, that natural rights, such as life, liberty &c., are inalienable and supreme, and above the authority of all governments. That governments are institutions of the people, for the protection of these rights and liberties; and that it is incompetent for
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them to enact laws for their destruction. Hence the presumption always is, in cases of doubtful interpretation, that the legislature intended to do, or require nothing contrary to nature right and justice,—and unless the language of the exactment is so clear and explicit, that it is impossible to avoid the contrary conclusion, the courts are bound so to interpret them; or to use the language of the Supreme Court of the United States, in the case of
United States vs. Fisher,
2 Cranch, 390 [6 US 358, 390; 2 L Ed 304, 314 (1804)]:
"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 it has been supposed by some, that when, that legislative intention, to infringe rights, overthrow fundamental principles, and depart from the general system of the law, was expressed with irresistible clearness, the courts were bound, to enforce that intention; and MR. PHILIPS, in his review of Mr. SPOONER, denies that, in this country, courts are at liberty to disregard such enactments; and in remarking upon the subject, says:"This question is not to be confounded with one somewhat similar to it, and which, has sometimes, been discussed, especially in England, whether a judge there, may disregard an unjust statute. Our question is different; for it should be remembered, that in England, there is no written institution. Even if a judge had such power there, (which he has not) it would by no means follow, that he had the same under our form of government. There, the judge, swears to bear true allegiance to the king. It might therefore, with some plausibility, be argued that,
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having no test to which to bring acts of Parliament, except the rules of natural-justice, judges were authorized to declare them void, when inconsistent with those rules."
The distinction, which Mr. Philips has made, between the character of the British and American Government, is such, as would lead us to directly the opposite conclusion, and is a distinction necessary to be made, in determining the force of English precedent
The British government has no written constitution. The legimate powers of parliament, are not restricted by any written or unwritten law. And in theory, and practice Parliament is absolute, supreme, uncontrolable, and irresponsible. In the language of Lord Coke,"It hath sovereign, and uncontrolable authority, in the making, confirming, enlarging, restraining, abrogating, repealing, revising and expounding of laws, concurring matters of all possible denominations, ecclesiastical, or temporal; civil, military, maritime, or criminal; this being the place where that absolute, despotic power, which must, in all governments, reside somewhere, is invested by the Constitution of the Kingdom."
Here we have a full key, to those English precedents, which say, "If Parliament will enact laws that are against natural justice &c., the courts are not at liberty to disregard them" &c.
In the theory of the founders of that government, absolute, despotic power, is a necessary incident to all governments; and in theirs, that power is vested in Parliament, and there is no power under that government, authorized to control it. They hold that the right of government, is derived directly from God, not through the people, and therefore, they are not responsible to them. That, what they do
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for the people, is a matter of "grace" &c. Hence, English precedents go far to sustain the doctrine of Mr. Philips. But even under this high, all commanding power of the British Parliament to authorize, or sanction a wrong, the language must be clear, explicit, and unequivocal, for "the law will not make a construction to do wrong."
But the theory of the institutions of this country, is entirely different It is no part of our doctrine, that absolute, despotic power resides anywhere, not even in the people, much less in the legislature. They denounced this doctrine in their Declaration of Independence. They defined the nature, source and object, of all political power, and affixed limits, beyond which it could not rightfully pass. It is our theory, that all governmental power emanates from the people, and is delegated to be used for the protection of the natural and inalienable rights of man; that this power, coming from the people, can never rise above, or become independent of them. It is our theory, that when governments become destructive of the ends of justice, and right, it is the duty of the people to overthrow them.
It is our theory, that the legislatve department of our Federal Government, is the creature of the National Constitution, and has no powers not delegated therein; and that it is only supreme in the legitimate, and constitutional exercise of those powers. It is the theory of our government that the judiciary is independent of the legislative department, and is as supreme in the exercise of its legitimate functions, as is the legislature. That it is the perogative of the judiciary to sit in judgment upon the enactments of the legislature, and to declare such laws void, as they shall think transcend the scope of legislative authority, or conflict with
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the general objects and designs of the government. It is the theory of our government, that men possess certain, natural rights, which cannot be alienated by themselves, or others; that no government can have the rightful power to disregard and trample upon them. Hence, Courts in the United States have full authority to declare all laws null and void, which violate the fundamental principles of natural right and justice. And in this respect they are entirely independent of the legislative departments.
So then, the conclusion is, that how ever much the judiciary of Great Britain may feel themselves bound to give force and effect to unjust and wicked laws, enacted by Parliament, it is not so in this country. And as our National Government was ordained by the people, for the purpose of establishing justice, and securing the blessings of liberty, &c., it becomes the duty of the judiciary, if they find the legislature going beyond their legitimate sphere of action, by enacting laws destructive of liberty and justice, to declare all their improper action void. At all events to hold, that the legislature can have no authority to do, or require, that which is wrong, or destructive to liberty and natural justice, by virtue of any implied power. That if they will sanction that which is unjust and wrong, they shall be compelled, not only to show clear and unequivocal authority, expressly given for so doing, but shall also express their intention in language so clear and positive as to admit of no other interpretation.
And it may be proper further to remark, in this connection, that the decisions of courts in this country, denying to themselves the authority to disregard wicked and unjust enactments, have been based entirely upon English precedents—thereby giving to American Legislatures the abso-
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lute, despotic authority, and uncontrollable power of the British Parliament and making themselves but the mere humble, passive exponents of legislative will, like the British judiciary.
That this may be fully understood, we will refer to a few English decisions and comments, which our American judges quote as authority, without noticing the want [lack] of similarity in the two forms and theories of government.
PROF. CHRISTIAN, in his notes on Blackstone says, "If an act of Parliament should, like the edict of Herod, command all male children, under a certain age, to be slain, the judge ought to resign his office, rather than be auxiliary to its execution; but it can only be declared void, by the same legislate power by which it was ordained."
Although the above may be good law under the English constitution, no one will pretend that such a principle could obtain here. Our courts would find no difficulty in declaring such an edict void.
Again, Mr. Blackstone says,
"But if Parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution, (British) that is vested with authority to control it . . . where the main object of a Statute is unreasonable, the judges are not at liberty to reject it" &c., "for that were to set the judicial power above the legislative which would be subversive of all government."
Here it will be observed, the difficulty is, the interference with the supreme, absolute, despotic power of Parliament, which, in England, must be maintained at the expense of all things else.
Also Mr. Chancellor Kent says, "It is a principle in the
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English law, that an act of Parliament, delivered in clear and intelligible terms, cannot be questioned, or its authority controlled in any court of justice: when it is said in the books that a statute contrary to reason, to natural equity, or repugnant, or impossible to be performed, is void, the cases are understood to mean that the courts are to give them a reasonable construction. They will not readily presume, out of respect to the law giver, that any very unjust, or absurd consequence was within the contemplation of the law. But if it should happen to be too palpable in its direction, to admit of but one construction, there is do doubt, in the English law, as to the binding efficacy of the Statute. The will of the legislature (Parliament) is the supreme law of the land, and demands implicit obedience. Kent Com. 1. Vol. 447.
Observe the binding efficacy of an unjust law is predicated on the absolute, despotic power of Parliament
Also from Paley, "There necessarily exists in every government a power, from which the constitution has provided no appeal absolute, omnipotent uncontrollable, arbitrary, despotic. This power, or assembly is the supreme power, the legislature of the State."
We might continue these quotations, indefinitely, illustrating the same point, but the above are sufficient.
We will however, look to a little authority on the other side of this question. Ths proposition maintained by law writers is this—
"No government or authority whatever, can do that which is subversive of the ends for which it owes its existence."
[Baron Samuel von] Pufendorf [1632-1694] says, "That it is God who imposed the law of nature upon the Human Race, and dictated the establish-
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ment of civil societies to serve as instruments of enforcing these laws." [Ed. Note: De Jure Naturæ et Gentium Libri Octo (1672)]
[Jean] Domat [1625-1696] declares,"that sovereignties can have no other rights but such as have in them nothing contrary to the use which God requires them to make of said power. The sovereign power can only be legitimately exercised for the end to be obtained, and that end is the protection and preservation of the lives, liberties and property of the citizen, and not for the destruction of either. That the wise and the good and the just is the circle of the Divine law within which the human sovereignty must move; that the law being the embodiment of all perfection and justice, its spirit as well as its letter denies the right of man to do an unjust act, or to infringe upon natural rights." Domat Pub. Law B.1.
"The sovereign power can only be called into exercise for the attainment of the great end, which that compact was designed to secure, and cannot be converted into an engine to defeat the end mankind had in view, when they entered into their social compact; and the moment this inviolate and sacred rule is departed from, there is a criminal abuse of power from which no obligation to obedience can arise." [Emerich de] Vattel B. 4. sec 45-46.
Ed. Note: Full Citation: Vattel, Emerich de (1714-1767), Droit des Gens (1758). Translation: The Law of Nations, or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (Northampton, Mass.: S. Butler, 1820)
reprinted Philadelphia: P.H. Nicklin & T. Johnson, 1829;
London: S. Sweet, 1834;
Philadelphia: T. & J.W. Johnson, 1834, 1849, 1852, 1854, 1858, 1861, 1863, 1865, 1872; and
New York: AMS Press, 1982). |
John Locke [1632-1704], "Though the legislature be the supreme power it cannot be arbitary over the lives and fortunes of the people. The legislative power in the utmost bounds of it, is limited to the public good of society. It is a power that has no other end than the preservation and therefore can never have a right to distroy, enslave, or designedly impoverish the subject." Locke's Works v. 5. ch. II p. 416.
Robert Hall takes the same view and denies the correct-
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ness of the reasoning of Burk and others, who ascribe despotic power to Parliament.
The doctrine of the omnipotent power of Parliament now only exists in theory. It was denied in effect by Wm. Pitt and Lord Thurlow in their opposition to the Bill annulling the East India Co., in 1783.
In the Supreme Court of U. S., Mr. Justice Chase, could not submit to the omnipotence of State Legislation, or that it was absolute or without control, although its authority should not be expressly restrained by the constitution. He held
"that the people of the United States, enacted their government to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect their persons and property from violation. The purposes for which men enter into society, determines the nature of the social compact as they are the foundation of legislative power, they will determine the proper objects of it." Calder vs. Bull, 3 Dallas Rep. [US] 386; [1 L Ed 648 (1798)].
In Taylor vs. Porter, 4 Hills Rep. N. Y., on the question whether private property ought to be taken [under the eminent domain doctrine] by the Legislature for private use, Bronson Judge held "that though no constitutional inhibition interfered, the legislative power did not reach to such an unwarrantable extent. That neither life, liberty or property, except when forfeited by crime, or when the latter is taken for public use, falls within ths scope of its power, and that when it steps beyond the bounds of its power, its acts, like those of the most humble magistrate in the land, are utterly void."
In Gorhom vs. Stonington, 4 Conn., Rep. Hosmer J. held,"If there should exist a case of direct infraction of vested rights, too palpable to be questioned, and too unjust to be
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vindicated, he could not avoid considering it a violation of the social compact and within the control of the judiciary.
In Wilkinson vs. Leland in the U. S. Court, [27 US 654; 7 L Ed] 2d Peters, Rep. 654. Same doctrine held by Webster and sustained by the court.
In Supreme Court of South Carolina, 1 Bays Rep. 252, Bowman vs. Middleton, it set aside an act of the Legislature as being against common right, on the ground that it took away the freehold of one man and vested it in another without any compensation, or any previous attempt to determine the right, declaring the act ipso facto void.
Again the same Court held,"That a statute framed against common right and common reason was so far void, as it was calculated to operate against those principles. But they said the court would not do the legislature, that injustice to say that such was their intention, and therefore would give it such a construction as would be consistent with the dictates of natural reason, though such construction might be contrary to the letter of such statute."
It being the well settled theory of our government as before observed, that men's natural rights are the true basis of all governmental power and authority, and the inalienability of those rights, the limits of that authority, hence when the American judge is called to sit in judgment upon an enactment of the legislature, it is his first business to see that the subject of enactment is within the scope of the constitutional authority of the legislature. He will then, construe the act, if possible, to mean nothing inconsistent with the natural and inalienable rights of man. But if he finds the language too clear and explicit to admit of any other construction, he will next examine into the constitutional
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authority by which such a particular law was enacted; and if the constitution does not in direct positive, and unequivocal terms, thus authorize such legislation, the judge will hold the law to be unconstitutional and void. But if, on examination he should find (which thank God he cannot) an express unequivocal grant of authority in the Federal Constitution, to pass laws destructive of liberty, and the rights of man, he would then hold the grant void, for want of authority in the people to make such a grant—for, to admit the right of the people to establish a government distructive of the rights of man, is to deny the inalienability of those rights, which is to deny the authority of the people to establish a government in defence of them: and thus deny the source of all governmental authority, except what proceeds from brute force.
But it is objected, that it would be dangerous to the rights and safety of community to allow courts the authority to decide that positive enactments against justice are void. But we submit, whither it would be more dangerous to commit such a power into the hands of the judiciary, than to commit absolute, despotic power into the hands of the legisature, who might pass laws distructive of natural right and justice, and make it obligatory on courts to enforce, and the people to obey them.
But further, to enforce their objections to allowing courts of justice this authority, the objectors urge the impropriety and absolute absurdity of permitting courts to exercise an unlimited discretion, and to set up their various standards of right and wrong, by which to try the validity of legislative enactments.
Admitting the impropriety and absurdity of conceding to
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courts are unlimited discretion, yet no such impropriety, or absurdity would exist if courts, in the exercise of their judicial functions would limit their resistance, to the violation of those natural rights, and the principles of natural justice, which are admitted to be true, by the judicial tribunals, both in England and America; and which were also confirmed by the founders of our American Institutions, the people themselves; and more especially would there be no reason to apprehend danger, if the courts should confine their discretion to the vindication of those great, natural rights, which we as a Nation affirmed were self-evident and inalienable. With these principles lying at the foundation of our Institutions, and which must be true, or they are false, there can be no denser of subverting this Government by keeping the legislature within these bounds.
Hence then, we say, the judiciary are at liberty to hold, that all grants and enactments, which are in direct conflict with those fundamental principles, upon which our Government is based, and inconsistent with those rights which we, as a Nation, declared to be "self evident and inalienable," are absolutely null and void; and they are not only at liberty, but it is their imperative duty so to hold and decide; and also, courts are bound to give an innocent meaning to all grants and statutes, if by any possibility the language will bear such a construction.
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CHAPTER VII.
Rules of Construction and Interpretation.
The Supreme Court of the United States, in construing certain parts of the Constitution, have, on several occasions, referred to,
"Historical evidence of the meaning of certain provisions of that instrument. It may be proper, in this place to examine the question how far they are at liberty to travel out of the record into the uncertain, indefinite history of the times, to ascertain the meaning of certain provisions of the organic law of the land."
The practice is certainly a novel one, and the propriety of it should be fully investigated and settled, before it finally grows into settled law. If there is any thing in the nature of the institutions of our country which requires such a rule of interpretation to be adopted let it be known, and if the nature of the difficulty be such, that it cannot be obviated without the introduction of so uncertain and dangerous a method of construction we must submit. But we are confident that nothing short of the most urgent necessity will ever obtain from the profession their consent to the introduction of so strange aud anomolous a rule.
If we are to depart from the letter and spirit of a written instrument, and search for the intentions of the makers thereof, in the journals, newspapers, debates, and partisan representations of the sayings and doings of those who participated in the making of the instrument, it will become nectary to remodel certain other rules of interpretation
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which hitherto have been considered good and necessary, and also to determine what histories shall be considered authentic, and upon what subjects they shall be considered conclusive, &c., &c.
The rules of construction laid down by Blackstone, and referred to by Mr. Story, are simply these.—Says Blackstone,"The fairest and most rational method of interpreting the will of the legislator is, by exploring his intentions at the time the law was made, by signs the most natural and probable; and these signs are either the words, the context, the subject matter, the effect and consequences, and the spirit and reason of the law."
Now take each of these rules separately and where do we find authority for the Supreme Court to take into consideration, "The history of the Times," and "National circumstances," in giving to any particular clause of the Constitution a construction?
FIRST,—"The intention must be obtained from the words of the legislator, and they are to be understood in their most usual and known signification. They may have a technical signification in popular use. Also terms of art may be used and persons skilled in the art may be called in to give the definition of such terms." Still this does not authorize going beyond the instrument for any thing more than to get the true definition of the words used.
SECOND,—If the words remain doubtful we are at liberty to refer to the context. This may be found in the proeme or preamble. Also in a similar law passed by the same legislator, at or about the same time. Thus when the English law declares murder to be felony without benefit of Clergy, it is necessary to refer to the same law to see what benefit of clergy is.
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In this case we are only seeking for the definition of a term used in the law.
THIRD,—we have a right to look at the subject matter. Words are always supposed to have reference to the subject matter. Thus the word "provisions," used in a statute prohibiting the purchase of nominations to benefices by the Pope, and which benefices were called "provisions," was intended to mean such benefices and not grains &c.
FOURTH,—we have a right to consider the effects and consequences &c. This is interpreted by Blackstone to mean. "Where words bear either none, or a very absurd signification if literally understood, we must deviate a little from the true sense of the words." Thus the Bolognian Law which enacted "'That whoever drew blood in the street should be punished with the utmost severity," was held after long debate not to extend to a surgeon who opened the vein of a person who fell down in the street in a fit.
FIFTH,—-We have a right to look to the reason and spirit of the law. For when the reason of the law cease, the law itself should cease. This is illustrated by Blackstone thus,"There was a law that those who forsook the ship in a storm, should forfeit all property therein, and that the ship and lading should belong entirely to those who staid in it. In a dangerous tempest all the mariners forsook the ship except only one sick passenger, who by reason of his disease was unable to get out, and escape. By chance, the ship came safe to port. The sick man kept possession and claimed the property. Now all the learned agree that the sick man is not within the reason of the law, for the reason of the law was to give encouragement to those who would venture their lives to save the vessel."
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Now taking these rules of construction, and where do the court get their authority for going into "collateral history," or "national circumstances," to give an unjust or wicked meaning to any clause in the constitution? From which of these rules do they take their license? To whose history are they authorized to refer? To what "national circumstance," can they anchor and say, this is to give the true interpretation thereof?
It appears from the forgoing rules, that we have a right to look at the general common established meaning of the words used, in a dictionary, or other works where the true signification of the words may be found. We have a right to look at the preamble, with a view of ascertaining the true reason and spirit of the law. We have a right to look into other laws passed by the same legislator, on the same or a similar subject, about the same time, to ascertain the meaning of a certain, peculiar expressions used as "Benefit of Clergy, Simony &c." We have a right to look to the subject matter, but this must be ascertained from the act itself. We can look to the effects and consequences, to see if they harmonise with the apparent design of the legislator; and we have a right to look to the reason and spirit of the law to see if the case at bar is one which was in the contemplation of the legislature. But it will be observed that none of these rules launch us out into the wide ocean of conflicting, "collateral history, or national circumstances" in search of light; and as the court very justly observed in the case of Mitchel vs. Great works &c, Storys C.C.R. v 2 p 653,"Such a course would deliver the court over to interminable doubts and difficulties, and we should be compelled to guess what was the law from loose commentaries and debates instead of the precise enactments of the statute."
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But even if the courts could indulge any such latitude in the construction of statutes, the case would be entirely different in the exposition of a fundamental law, like the constitution of the United States. It is all important that such an instrument should be strictly construed. For if a loose construction be allowed, there will be no limit to the implied powers which a fertile immagination, or an ambitious, or designing administration may not graft upon it. Powers never intended to be granted by the people, will be assumed. In all governmental bodies, there is always a strong tendency to usurp power. Hence written constitutions were adopted to hold them in check.
But these have not always been successful. The doctrines of latitudinarian construction readily form a ladder by which all constitutional bulwarks are scaled; and history has demonstrated that there is no safety in allowing courts, or legislatures to go beyond the plan, palpable meaning of the grants in construing written constitutions,—and more especially should our courts and legislatures be kept within the plain letter of the grant, if the power sought to be grafted on by implication is one in conflict with natural right and justice, and opposed to the general object and professed designs of the instrument. The maxim that "The law will make no construction to do wrong," should apply with peculiar force.
It is admitted
that the supreme court of the United States have gone farther, in traveling out of the record, to [pretend to] ascertain the meaning and give a particular construction [predetermined, result-oriented, misinterpretation] to parts of the constitution, than any other judicial tribunal in any civilized country;
and it is also admitted, that their practice has been altogether unwarranted by any known rules of law,
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common sense, or justice.
Ed Note: The Supreme Court has gone so far as to fabricate (lie) in, e.g., the Dred Scott case, pursuant to organic reasons, hatred-of-the-North, and/or combination thereof. Roger Taney is an example of the organic reasons cited.
Examples of what the world's worst, most-unethical, court has upheld:
(1) adultery,
(2) atrocities,
(3) axe-murder,
(4) Bible-refusing,
(5) branding,
(6) burning-alive,
(7) concubines for clergy,
(8) commandment-breaking,
(9) degradation,
(10) extortion,
(11) eye-gouging,
(12) genocide,
(13) kidnaping white women,
(14) making infidels,
(15) mass abuses,
(16) racking and salting,
(17) rape,
(18) robbery,
(19) skinning,
(20) torture,
(21) torture-murder,
(22) violence,
(23) whip-to-death.
|
The Supreme Court has upheld using bribery to obtain obtain government property for next to nothing, there, state government land for 3¢ an acre! in Fletcher v Peck, 10 US 87; 3 L Ed 162 (Feb Term 1810). [The bribery was extensive, "notorious bribery involving virtually every member of the Georgia legislature, two U.S. senators, and many state and federal judges (including Justice James Wilson of the Supreme Court)," says Kermit L. Hall, ed., The Oxford Guide to the United States Supreme Court Decisions (New York: 1999), p 93. For more on the bribery and corrupt aspects of the case, see the book by Univ of California-San Diego Prof. Peter H. Irons, A People's History of the Supreme Court (New York: Viking, 1999), pp 112-115 and 121.]
It has upheld force, extortion, practice, over the rule of law, in The Antelope, 23 US (10 Wheat) 66; 6 L Ed 268 (18 March 1825).
It falsified U.S. history to justify banning Northern States' "personal liberty laws" protecting non-slaves including white women, from being enslaved, in Prigg vs. Pennsylvania, 41 US (16 Pet) 539, 611; 10 L Ed 1060, 1087; 1842 WL 5728 (January 1842).
The Supreme Court again falsified history to justify slavery, in the infamous case of Dred Scott v Sandford, 60 US 393, 407; 15 L Ed 691, 701 (March 1857), blatantly disregarding centuries of precedents, to pretend that blacks had "had no rights which the white man was bound to respect," even though precedents for centuries had ordered exactly such "respect." This unethical decision soon led to the Civil War, with vast casualties.
The Supreme Court upheld segregation in the infamous case, Homer Plessy v Judge John H. Ferguson, 163 US 537; 16 S Ct 1138; 41 L Ed 256 (18 May 1896) (affirming the Lousiaina Supreme Court decision, Ex parte Plessy, 45 La Ann 80; 11 So. 948, and ordering Plessy, an octoroon, 7/8 white, treated as though black); and continued that view in, e.g., Chiles v Chesapeake & O R Co, 218 US 71; 30 S Ct 667; 54 L Ed 936 (31 May 1910), when asked to consider anew.
It opposed redress for victims of government perjury convicting innocent people, in Briscoe v LaHue, 460 US 325; 103 S Ct 1108; 75 L Ed 2d 96 (7 March 1983).
It upheld the tobacco holocaust in FDA v Brown & Williamson Tobacco Corp, 529 US 120; 120 S Ct 1291; 146 L Ed 2d 121 (21 March 2000).
The Supreme Court halted the vote count in Florida (where blacks were denied voting rights en masse) in Presidential Election 2000, awarding the election to a candidate with a half million fewer votes, whose father had appointed some of the judges, in Bush v Gore, 531 US 98; 121 S Ct 525; 148 L Ed 2d 388 (12 Dec 2000).
This most unethical court in the world, in short, has a record of causing enormous damage to the nation. Since US judges have in reality no code of ethics, nothing enforceable in daily practice (they monitor each other's behavior!!), additional infamous decisions can be expected in future. |
And that even they [the Supreme Court judges] themselves, have not any fixed or uniform rule on the subject, except to make such rules as the particular emergencies of each case seem to require.
| Ed Note: Meaning, they make it up according to personal whims, as they go along! They make up their minds as to what result they want, then they make up the so-called 'legal principles' to arrive at that pre-determined result. |
Hence they [Supreme Court judges] often given conflicting rules of interpretation [making them up as they go along]. Some times they intimate that they only intend applying certain rules to the particular case at bar, as in the [pro-slavery] case of Prigg vs Penn [41 US 539; 10 L Ed 1060 (1842)].
In other words they assume the authority to go in any, and all directions for light, and aid when they please; and then shut themselves up in the prison of the letter when they please.
But it is said
| "That precise, legal maxims are not applicable to a constitution of government.
"In relation to such a subject, the natural and obvious meaning of its provisions, apart from technical rules, is the true criterion of its construction." |
But by examining all authorities on that subject, we can find no intimation that the instrument itself is to be abandoned to the vague teachings of "Collateral History, or National Circumstances."
It is fully admitted that, in the construction of that instrument, "Great regard should be paid to the spirit and intention thereof." But that spirit and intention should be gathered from the instrument itself. It is an instrument purporting to delegate sovereign power, to be exercised over a variety of subjects, affecting the lives, liberty and property of the whole people. It is entrusting the dearest, and most vital interests of community to the hands of men who may be disposed to abuse their trust, unless held within strict bounds.
Great latitude of construction would easily graft upon it powers which might be fatal to the liberties of the people. Give government general license to construe such an instru-
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ment by such "Collateral aids," as they might please to call in, and there is no power which ambitious, and designing men might not attach. If we are to go out of that instrument to look for aid, in the journals, newspapers, publications, debates and histories of any particular time, who is to limit the extent of that judicial wandering? Who [is] to determine what histories are to be consulted, on what particular portions are to be taken as true? Who is to say, "thus far, and no farther"? Every court would be at liberty to call in such exterior aid, and from such sources as they should think proper.
Your constitution would no longer be the simple, plain spoken instrument, adopted by the people; but it would be what the debates, journals, histories and idle rumors of the day would make it. You could no longer look to the plain, obvious meaning of the language employed; for, under some apparently blooming plant of liberty, would lurk a basalisk, concealed by dubious words and doubtful implications, to be developed into a fatal power, by the aid of "Collateral history," and "National Circumstances."
But this is not so. The constitution can be submitted to no such test. It is enough that the court may engraft upon it such implied powers as are obviously necessary to carry into effect the powers therein expressively granted. If, after doing this, it should be found that other powers are needed, it is safer to call upon the people to surrender, in express terms, the further powers, by amending their constitution, than to let in a flood of powers by implication against which no further barriers could be erected; and which is the same thing in effect, if by the ordinary rules of interpretation, the meaning of certain words and phrases are
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still doubtful, so that it cannot definitely be told what grant was intended, it is better to leave the doubtful power undeveloped, until the people, by amendment, can develop it, than to resort to such rules of interpretation for the purpose of developing it, as, when applied to other parts of the instrument and to other instruments of a like kind, put an end to all certainty and stability, and thereby break down all barriers against governmental usurpations.
But we are told that contemporaneous construction by congress, and by the early judges, ought to have great weight. Those who framed that instrument, did not understand the legal effect of the words used any better, than they are understood at the present time; besides there is more danger of a misconstruction of that instrument by those who were contemporary with its formation, than there is by those who have lived since. For, it would be reasonable to suppose, that courts would often be liable to give their supposed familiar understandings of that instrument, rather than the legal meaning of the instrument itself; we can readily perceive how a judge, after having heard the propriety or impropriety of a particular grant of power, in the constitution discussed, and the consequences incident to that power pointed out, would be liable to follow his own particular understanding without closely adhering to the letter and spirit of the particular clause.
But admitting that contemporaneous construction is of great weight and authority, it is not absolutely binding. The courts are at liberty at all times to examine into those constructions, and overrule, or modify them, as they may think proper. Precedent is not necessarily law. It may be received as evidence of what the law is, or is supposed to be, but is liable to be overruled and rebutted.
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CHAPTER VIII.
Our Government, its origin, nature, object and powers.
Before entering upon a discussion of the various provisions of the Constitution of the United States, it will be necessary to examine into the nature of the Federal Government, as to its origin, objects, and powers.
ITS ORIGIN.
"We, the people of the United States,* * * * do ordain and establish this Constitution for the United States of America." [Preamble]
The Constitution of the United States, is not a compact between the several states in their sovereign state capacity, but the Constitution of the people of all the states, acting in their capacity as individuals.
Hence the powers delegated by that instrument, did not come, second handed, though the states, but came directly from the people, with all the power and vigor of virgin sovreignty; and the contract was between each individual, and all the people of the Union; and between all and each. Not between communities of people, but between individuals.
Hence the ordaining, and establishing the fundamental law looked to securing the objects mentioned in its preamble, against the petty despotisms of factions or states,—against the selfishness, or arrogance of any man, or set of men. The whole people stood
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up in their original, sovereign capacity; and, by virtue of the authority vested in them by the Almighty, declared what powers should belong to the national government, and what should be denied to the states.
They made such grants of power, and imposed such restrictions as they thought proper, making the Federal Government supreme in all matters within the sphere of its action; and when they had finished their work, they reserved to themselves and to the states, respectively the powers not delegated in that instrument.
Hence, when we find a restriction imposed upon the federal government, we must remember it was imposed by the people, not by the States; and when we find a prohibition imposed upon the states, we must remember that it was imposed by the people, not by the Federal Government.
Again the National Government, is peculiar in this respect; it is a government of delegated powers, established for specific and limited purposes. It posesses no power to act upon any subject unless that power has been delegated in express terms, or by necessary implication. The constitution of the United States is their charter, defining their powers, and enjoining their duties, and no department of the National Government is at liberty to go beyond the limits prescribed in that instrument: and should they do so, their entire action beyond it, would be of no binding force, or validity.
The state governments differ from the National Government in this respect. They do not derive their power to act, from state constitutions. The objects of those instruments are rather to define the manner of acting, by pointing out the method of organizing and maintaining, their state govern-
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ments, and imposing such restrictions upon the exercise of their govermental powers as wisdom and prudence dictate.
Ths Federal Government can do nothing except what they are authorised to do by the National Constitution.
The state governments can do every thing within the legitimate sphere of government, which they are not restrained from doing, by their Constitutions, or which power has not been delegated to the National Government.
The Constitution of United States is one, delegating power. The Constitution of the State is one restraining power: and this difference must be kept in mind in construing those instruments.
OBJECT
The object [purpose as per the Preamble] of the National Government was to protect the rights of each individual citizen against oppression at home and abroad. Against the encroachments of foreign nations, and domestic states: against lawless violence, exercised under the forms of governmental authority.
Protection, in the enjoyment of their natural, and inalienable nghts, was the great paramount object of the institution of the National Government Hence they declare,
| "that they ordain and establish that government, to
establish justice,
insure domestic tranquility,
provide for the common defence,
promote the general welfare, and
secure the blessing of liberty" &c. |
Without the National government, a state, or a portion of it, might be invaded by a foreign enemy. The people might be robbed of their property, deprived of their liberty, and be reduced under absolute despotism, without sufficient power to defend themselves. Also a state might assume the authority to rob a portion of her citizens of their dearest rights.
But by the formation of the National Government, they constituted themselves citizens of a Gover-
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ment that had power to defend them, individually and collectively, against all such encroachments. And it will be found on a careful examination of the Constitution of the United States, that ample provision was therein made for the guaranty of all these rights to every individual, against the encroachments of Nations from abroad, or from the despotism of states at home.
| Ed. Note: Other abolitionists agreed, e.g.,
Frederick Douglass, Constitutional Law Lecture (1860), p 14
Lysander Spooner, Unconstitutionality of Slavery (1845), pp 90-94
Alvan Stewart, Anti-Slavery Speech (1845), p 40
Benjamin Shaw, Constitutional Law Speech (1846), p 4.
|
Then as citizens of the United States, we stand mutually pledged to each other, to see that all the rights, privileges, and immunities, granted by the constitution of the United States, are extended to all, if need be, by the force of the whole Union.
What is it, then, to be a citizen of the United States? It is to be invested with a title to life, liberty, and the pursuit of happiness, and to be protected in the enjoyment thereof, by the guaranty of twenty millions of people. It is, or should be, a panoply of defence equal, at least, to the ancient cry, "I am a Roman Citizen" [Acts 22:27].
And when understood, and respected in the true spirit of the immortal founders of our government, it will prove a perfect bulwark against all oppression.
We are fully aware of the objection which is taken to this view of the subject.
It is thought this view would lead to the extreme doctrine of consolidation. We have have not taken this view from any feeling of necessity on our part to maintain the argument that the Federal Government is not authorized by the Constitution, to encourage, support or sanction slavery. We do not need it; and make no use of it, except in the consideration of certain positive guarantys of the Constitution.
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We hold that under the constitution, the Federal Government has full power to put an end to the institution of slavery, and that it is the duty of the government to exercise that power without delay: and we maintain this position without calling in aid, any of the positive guarantys of the Constitution for liberty.
We therefore say to those who object to this view of the objects and designs of the establishment of the Federal Government, you may reject it entirely: the argument is complete without it.
But before rejecting this doctrine, we would suggest a few considerations. Under the constitution of the United States, we all become citizens of the National Government by birth or naturalization; and as such citizens are entitled to the benefits of all these guaranties for personal security and liberty.
The states can have no authority to deprive us of those benefits; for the guarantys are a part of the supreme organic law of the land, made by a compact of all with each and each with all
We do not hold that the Federal Government is bound to enact laws, to see that those rights are observed between citizen and citizen in the same state. It is peculiarly the province of the state governments to do that; and they will be presumed to have performed that duty, except in thoae cases where, by positive enactments, they heve authorized a violation of these rights.
Our position then is this; that whenever a state shall by its legislation, attempt to deprive a citizen of the United States of those rights and privileges which are guaranteed to him by the Federal Constitution, as such citizen, such
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legislation of the state is void. And that it is the duty of the federal judiciary to take cognizance of such violations, whenever any of the citizens of the United States are thus injured by state legislation.
This doctrine is not obnoxious to the charge of consolidation on the one hand, nor of state rights and nullification on the other.
With this view of the guarantys of the Federal Constitution, the right of citizenship is valuable to us while residing within the jurisdiction of the Federal Government. But the other view renders the National Government valueless to all citizens while at home. If its guarantys were only intended to protect the citizen against its own despotism, a vast majority of the citizens would have been more secure without a union government, than with it.
CHAPTER IX.
To recognize the existence of Slavery, "de facto," does
not Sanction or Legalize it
The constitution of the United States nowhere recognizes the existance of slavery as a legal, and valid institution. It did not intend to do it, and we cannot make it recognize its existance de facto except by forced implication. For it is a well settled historical fact, that the framers of that instrument would not permit any word, or phrase to
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have place therein, which even described the character, or expressed the condition of a slave. Therefore when we admit that the constitution of the United States recognizes the existance of slavery "de facto," we shall claim credit for liberality in giving much if not unwarranted latitude in the construction of that instrument
But recognizing the existence of slavery "de facto" does not legalize, sanction, or in any manner guaranty its existance.
In 1772 the famous case of Somerset vs Stewart, was decided, by Lord Mansfield, in the Court of Kings bench, England. In his decision he held that slavery had no legal existance in England. He said,
"So high an act of dominion must be recognized by the law of the country where it is used. The state of slavery is of such a nature that it is incapable of being introduced on any reason, moral, or political. But only by positive law. It is so odious that nothing can support it but positive law," (Howell's State Trials.)
Previous to this decision slavery had existed in England, "de facto." The trade in men and women had constituted an important item of commerce. Laws had been passed authorizing their sale on execution; and in fact every thing had been done, by all the departments of the British Government, to regulate, recognize, and sanction human slavery that they could do, short of actually establishing it by "positive law."
In 1697, 8, 9, 10 William 3rd., chap. 26, the parliament of Great Britain had recognized its existance, by encouraging the slave trade, as "beneficial" and "advantageous," to the kingdom, and spoke of the importation of Negroes into England, where they were held as slaves. The act itself was entitled, "An act to settle the trade to Africa."
| Ed. Note: See Lysander Spooner's evidence showing this did not legalize slavery, Unconstitutionality of Slavery (1845), pp 25-30. |
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Again in 1749 the Parliament of Great Britain passed an "Act for extending and improving the trade to Africa" commencing with this preamble, "Whereas the trade to and from Africa, is very advantageous to Great Britain, and is necessary for the supplying the plantations and colonies thereunto belonging, with a sufficient number of Negroes at reasonable rates, and for that purpose the said trade ought to be open and free to all his Majesty's subjects. Therefore be it enacted &c."
Again, it was among the early complaints of the colonies that the government of Great Britain had forced slavery upon them, by their Parliamentary enactments. Yet notwithstanding all this, it was held by Lord Mansfield, that slavery had never had a legal existance in England. That all their enactments, regulating the trade, encouraging it &c., had never sanctioned, or legalized it. And this decision virtually put an end to slavery in England.
It was recognized by all "as sound law" and none were disposed to litigate the question further. So then we see that to refer to an institution, or even to pass laws regulating, and encouraging it, does not necessarily sanction, or legalize it.
Inasmuch then, as we have seen that to recognize the existance of an institution "de facto" does not necesarily legalize it, or give any intimation as to its legal character, we are now prepared to proceed with the examination of the several provisions of the constitution, supposed by some to establish, or guaranty slavery.
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CHAPTER X.
Our Constitution neither sanctions, legalizes, nor guarantys Slavery.
We now proceed to enquire into all those provisions of the Constitution, of the United States, which are said to favor slavery; and shall maintain the following propositions :
1st—The constitution nowhere guarantys the existance of slavery, in any part of the Union, for a single hour.
2nd.—It nowhere sanctions slavery directly or indirectly.
3rd-—It nowhere recognizes the legal existance of slavery, in a single state of the Union.
4th.—It nowhere restrains the Federal Government from extending to all men, black and white, all the gaarantys of that instrument, for the personal security, and liberty of the citizens of the United States.
5th.—Under the general provisions of that instrument the Federal Government have full and complete power to put an end to slavery in the United States at pleasure; and it can never fulfil the designs of its creation and satisfy the anticipations awakened until it does so.
We shall argue these propositions from the letter and spirit of the constitutions; applying the most liberal rules of construction, and shall fortify their correctness by referring to the history of the formation of that instrument. It will
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be admitted that slaves, and slavery were referred to, in every clause of that instrument, where the pro-slavery interpreters insist they are especially referred to.
REPRESENTATIVE CLAUSE.
The first clause of that instrument referring to slavery, or rather to a class of persons supposed to be slaves, is the 3rd clause of the 2nd section, of the 1st article of the constitution of the United States, which is,
"Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to serve for a term of years, and excluding Indians not taxed, three fifths of all other persons."
The design of this clause was to fix upon a ratio of representation among the several states. It is important to notice that it was a state representation which this clause was determining upon; not an individual representation. The state governments recognized several classes of persons, under their organizations, and the people, not the Federal Government, refused to permit certain states to have a full representation in the Federal Government so long as certain classes as such under the state governments had an existance.
It was a penalty imposed by the people upon those states, for permitting any class of persons, under their state governments, to remain in any other character than free. It was not designed to express any approbation of an institution which sought to rob men of the rights of freemen. But on the contrary, it was designed to express their disapprobation. It was not designed to strengthen the political power, and influence of those states, where slavery existed,
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or might continue to exist, but on the contrary to weaken their power and influence. It was not designed to legally sanction, or recognize, as a valid, and binding institution, slavery, but on the contrary to condemn its very existance, "de facto," in the states; and offer an inducement for all to get rid of it, that they, by so doing might increase their state representation; and, at this very time, the south are abated some sixteen members in the Federal Government for permitting the institution of slavery to continue among them.
Then, so far as this clause goes, it condemns in its spirit, the institution of slavery; and in its letter, it offers no sanction, or guaranty whatever. It does not even say, except by implication, that there are any persons of the last description, or rather, not included in the forgoing descriptions. The most that it says is that should [if] there be any not included in the forgoing description, then, only three fifths of their number, should be estimated. But it does not pretend to say there are any such, or if there are, that they are legally, or justly held in that condition for a single day, much less does it, in express terms, or by any fair implication, bind the National Government to sanction, or uphold any such institution.
Nor does it directly, or indirectly restrain the Federal Government in the full exercise of all its powers, to extend the blessings of "liberty" to all persons within its jurisdiction. Nor was it designed that it should restrain the action of the National Government The most that can be said is, that by a forced implication, it recognizes the existance of slavery, "de facto." And the history of the times tells us, that the framers of that instrument did not intend to do more than that: nor even that, by the remotest implication possible. Hence they would
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not admit the term "slave," or "slavery" into the instrument; nor any other language descriptive of slavery. They said they would not recognize it; they would not sanction it. And there was not a member of the convention that asked, or desired them to do so. But we have already seen, that to recognize the existance of slavery, "de facto," does not sanction, or legalize that institution. Therefore instead of this clause of the constitution sanctioning, or guaranteeing slavery, in letter or spirit, it condemns it in the strongest terms, and imposes a penalty on those states which allow it to continue among them.
"MIGRATION OR IMPORTATION" CLAUSE.
The next provision of the constitution, to which our attention is called, is the 1st clause of the 9th sec. of the 1st article, which is:—
"The migration or importation, of such persons as any of the states, now existing, shall think proper to admit, shall not be prohibited by the congress, prior to the year one thousand eight hundred and eight, but a tax, or duty may be imposed on such importation, not exceeding ten dollars for each person."
It will be observed that this clause is entirely restrictive in its character, It is not one conferring power, but on the contrary restraining the exercise of certain powers already conferred. When we remember that the national government is one of delegated powers merely, and that it can exercise no powers, not delegated to it by the constitution, we at once infer that this 9th section, would have been altogether unnecessary, had not the constitution delegated to congress the power to prohibit the migration and importation of certain persons into the states, in some other clause of
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that instrument. Accordingly we find in the 3rd clause of
the 8th section of the 1st article, "That congress had power to regulate commence with foreign nations, and among the several states, and with the Indian tribes," and that this 1st clause of the 9th section was designed to restrain the exercise of that power, on the part of congress, for the term of twenty years, which restriction expired forty one years ago, last January.
It has been objected to this clause of the constitution that, by it, the national Government authorized the slave trade for the term of twenty years. But this objection is altogether unfounded. The National government never authorized the States to buy or sell a single slave, at home or abroad, for she had no such authority to give, nor did she ever yield to the states any such authority, for she never had any such authority to yield. The Federal Government had no authority on the subject, further than the people, in that constitution, saw fit to give her. She could only receive such powers, and subject to such restrictions, as the people saw fit to grant She was not an institution imparting power, but receiving. She is not to be held responsible for what she did not receive, but only for the proper exercise of those powers which she did receive.
Again it is objected that the National Government, in that clause, recognized the rightful power, under the state governments to buy and sell human beings.
This is not so. Neither the letter, nor spirit of that clause recognizes any such thing. It does not attempt to say whether the persons migrating, or being imported into the states, shall not be as free to act and move as any other class of persons. It does not even hint at their condition
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in the states, either in express terms or by any fair implication. It only says that the states, may admit such persons among them as they see proper, without the interference of Congress prior to 1808. But it does not say in any manner whatever that these men may be robbed, murdered or dealt with in any manner different from any other citizens of the state; and it did not intend to say any such thing. But even if it did contemplate this class of persons, as slaves under state laws, that, we have already seen does not either sanction, or legalize their slavery. Nor does it admit the lawful authority of the states to make them slaves.
But it has already been remarked that the restrictive operation of this clause ceased fifty-one years ago. And the power of Congress over that whole subject is now as plenary, as though that clause had never been inserted. But nevertheless, there is intrinsic value in that clause yet. It contains a construction put upon the 3d clause of the 8th section of the 1st article, by the framers of the instrument themselves.
We learn from this 1st clause of the 9th sec., what powers they understood that 3d clause of the 8th sec., conferred upon congress—to wit, to abolish the foreign and domestic slave trade. It has long been contended by abolitionists, that the 3d clause of the 8th section gives congress the power to abolish the interstates slave trade, as well as the foreign, and it is impossible for any lawyer to deny that it clearly gives congress as much power over the one as the other. But nevertheless, it has been denied.
This 9th sec., however would have us understand that congress had as much power to prohibit the "migration" as the "importation" of slaves, if the persons referred to are slaves. It has been understood that the term, "importation" referred
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to bringing in slaves from foreign states or Nations, and that "imported" was used signifying those who were thus brought into the United States.
But the term, "Migration," also refers to the same class of persons; and if one meant slaves, so then did the other. The term migration signifies a "change of place," that is moving from place to place. Now as the terms are used in reference to the whole United States, "importation" means being brought into the Union, and "migration," moved about from state to state in the Union. Hence, also, a tax might be imposed upon persons "imported," but not upon persons "migrating." So then we leam from this 9th section that the framers of the constitution understood that the 3rd clause of the 8th section conferred upon congress the power to prohibit, as well the as the foreign slave trade.
CHAPTER XI.
The Fugitive Clause.
The next clause of the constitution that claims our particular attention is the 3d clause of
the 2d sec. of the 4th art, which is:"No person held to service, or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein be discharg-
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ed from such service, or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
Slavery is so odious in the eye of the law, that it can only exist "in invitum." A man can only be considered a dave "while he remains within the jurisdiction of the authority that makes him such. The moment he escapes beyond that jurisdiction, his legal chains fall off, and he assumes his native, original manhood. We mean by this, he becomes a freeman in the eye of the law. This was the case with the thirteen colonial states. Each had their own regulations, chattleizing men. But they were of no force, or validity beyond the limits of their respective jurisdictions. Consequently if a slave from Virginia, escaped into Pennsylvania, he thereby became free in the eye of the law, unless by a comity between Pennsylvania and Virginia it was agreed that he should still be considered as subject to the jurisdiction that made him a slave. This comity existed between the original thirteen states, prior to the formation of the Federal Constitution, as all of them were slave states, and each sovereign, having full power to enter into alliance with each other, for all matters of comity, &c.
These states, or rather the people composing these states, were about to enter into a union government, into which a portion of their original sovereignty was to be merged; among other things the right to enter into any treaties, alliances, or confederations with each other, aside from the general union was to be given up. Beside, the feeling in many of the states was such, that the people were indisposed to continue slavery among themselves, or tolerate it, in others: and there was very little inclination among a portion of the states, to con-
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tinue the old line of comity by which the slave laws of one state were to be recognized in other States.
With the exception of South Carolina and Georgia, there was no serious objection to discontinuing that practice. But these States, insisted upon it, and refused to come into the union, unless this comity was continued. Now it is worthy of notice that these stites apprehended no danger from the action of the General Government, at least expressed no such apprehension. It was only against the action of the States, they wished to guard. Hence, the clause, which they sought to insert into the constitution, contained no restriction upon the Federal Government nor did it enjoin any duty upon them. It was only restrictive of state action.
There was much opposition to the introduction of this and other clauses, relating to the subject of slavery. It was the feeling and determination of a large portion of the convention framing the Constitution, that slavery, as such, should receive no favor or support at their hands even for the shortest period. And, as has before been observed, they would not admit into the constitution any word, or phrase, which by any legal rule of constru