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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 embarrassments 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 asserted 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 constitution 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 asserts that such is the meaning of the word “ free in “ the new constitution.”
THE CONSTITUTION OF THE UNITED STATES.
We come now to the period commencing with the adoption of the constitution of the United States.
We have already seen that slavery had not been authorized or established by any of the fundamental constitutions 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 constitutional principles of their governments. And the question now is, whether it was constitutionally established, authorized or sanctioned by the constitution of the United States ?
It is perfectly clear, in the first place, that the constitution of the United States did not, of itself, create or establish slavery as a new institution; or even give any authority to the state governments to establish it as a new institution.The greatest sticklers for slavery do not claim this. The most they claim is, that it recognized it as an institution 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 constitution of the United States on this subject, viz: whether it did thus recognize and sanction slavery as an existing institution?
This question is, in reality, answered in the negative by what has already been shown; for if slavery, had no constitutional existence, under the state constitutions, prior to the adoption of the constitution of the United States, then it is
absolutely certain that the constitution of the United States did not recognize it as a constitutional institution ; for it cannot, of course, be pretended that the United States constitution recognized, as constitutional, any state institution that did not constitutionally exist.
Even if the constitution of the United States had intended to recognize slavery, as a constitutional state institution, such intended recognition would have failed of effect, and been legally void, because slavery then had no constitutional existence to be recognized.
Suppose, for an illustration of this principle, that the constitution of the United States had, by implication, plainly taken it for granted that the state legislatures had powerderived from the state constitutions—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 constitution 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 constitutions 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 constitution of the United States, by its own authority, created or authorized slavery as a new institution; but only that it intended to recognize it as one already established by authority of the state constitutions. This intended recognition—if there were any such—being founded on an error as to what the state constitutions 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 de
cided against slavery; and that it is of no consequence what recognition or sanction the constitution of the United States may have intended to extend to it.
The constitution 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 constitutions. No one can deny a proposition so selfevident as that. If, then, the State constitutions, then existing, authorized no slavery at all, the constitution 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 constitution, 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 constitution that was "the supreme law of the land,” “any thing in the constitution or laws of the states to the contrary notwithstanding." If the state governments could enslave citizens of the United States, the state constitutions, and not the constitution 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.
Although we might stop—we yet do not choose to stopat the point last suggested. We will now go further, and attempt to show, specifically from its provisions, that the constitution of the United States, not only does not recognize or sanction slavery, as a legal institution, 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 assertion 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 constitution intended to sanction it; for if it intended to sanction it, it did thereby necessarily sanction it, (that is, if slavery then had any constitutional existence to be sanctioned.) The intentions of the constitution 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 constitution intended to sanction slavery, is the same as to say that it did sanction it; which is begging the whole question, and substituting mere assertion for proof.
Why, then, do not men say distinctly, that the constitution 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 constitution. We do not say, for example, that the constitution 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 constitution 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 constitution do not come up to that point. They, therefore, assert simply that the constitution intended to sanction it; and they then attempt to sup