The only questions that can arise from the use of these words “free” and “freeman,” are these, viz.: Are they used as the correlatives, or opposites of slaves? Or are they used in that political sense, in which they are used in the common law of England, and in which they had been used in the colonial charters, viz., to describe those persons possessed of the privilege of citizenship, or some corporate franchise, as distinguished from aliens, and those not enjoying franchises, although free from personal slavery?
If it be answered, that they are used in the sense first mentioned, to wit, as the correlatives or opposites of slavery—then it would be argued that they involved a recognition, at least, of the existence of slavery.
But this argument—whatever it might be worth to support an implied admission of the actual existence of slavery—would be entirely insufficient to support an implied admission either of its legal, or its continued existence. Slavery is so entirely contrary to natural right; so entirely destitute of authority from natural law; so palpably inconsistent with all the legitimate objects of government, that nothing but express and explicit provision can be recognized, in law, as giving it any sanction. No hints, insinuations, or unnecessary implications can give any ground for so glaring a departure from, and violation of all the other, the general and the legitimate principles of the government. If, then, it were admitted that the words “free” and “freemen” were used as the correlatives of slaves, still, of themselves, the words would give no direct or sufficient authority for laws establishing or continuing slavery. To call one man free, gives no legal authority for making another man a slave. And if, as in the case of these constitutions, no express authority for slavery were given, slavery would be as much unconstitutional as though these words had not been used. The use of these words in that sense, in a constitution, under which all persons are presumed to be free, would involve no absurdity, although it might be gratuitous and unnecessary.
It is a rule of law, in the construction of all statutes, contracts and legal instruments whatsoever—that is, those which courts design, not to invalidate, but to enforce—that where words are susceptible of two meanings, one consistent, and the other inconsistent, with liberty, justice and right, that sense is always to be adopted, which is consistent with right, unless there be something in other parts of the instrument sufficient to prove that the other is the true meaning. In the case of no one of all these early state constitutions, is there anything in the other parts of them, to show that these words “free” and “freemen” are used as the correlatives of slavery. The rule of law, therefore, is imperative, that they must be regarded in the sense consistent with liberty and right.
If this rule, that requires courts to give an innocent construction to all words that are susceptible of it, were not imperative, courts might, at their own pleasure, pervert the honest meaning of the most honest statutes and contracts, into something dishonest, for there are almost always words used in the most honest legislation, and in the most honest contracts, that, by implication or otherwise, are capable of conveying more than one meaning, and even a dishonest meaning. If courts could lawfully depart from the rule, that requires them to attribute an honest meaning to all language that is susceptible of such a meaning, it would be nearly impossible to frame either a statute or a contract, which the judiciary might not lawfully pervert to some purpose of injustice. There would obviously be no security for the honest administration of any honest law or contract whatsoever.
This rule applies as well to constitutions as to contracts and statutes; for constitutions are but contracts between the people, whereby they grant authority to, and establish law for the government.
What other meaning, then, than as correlatives of slavery, are the words “free” and “freemen” susceptible of, as they are used in the early state constitutions?
Among the definitions given by Noah Webster are these:
“Freeman. One who enjoys, or is entitled to a franchise or peculiar privilege; as the freemen of a city or state.”
“Free. invested with franchises; enjoying certain immunities; with of—as a man free of the city of London.”
“Possessing without vassalage, or slavish conditions; as a man free of his farm.”
In England, and in the English law throughout, as it existed before and since the emigration of our ancestors to this country, the words “free” and “freemen” were political terms in the most common use; and employed to designate persons enjoying some franchise or privilege, from the most important one of general citizenship in the nation, to the most insignificant one in any incorporated city, town or company. For instance: A man was said to be a “free British subject”—meaning thereby that he was a naturalized or native born citizen of the British government, as distinguished from an alien, or person neither naturalized nor native born.
Again. A man was said to be “free of a particular trade in the city of London”—meaning thereby, that by the bye-laws of the city of London, he was permitted to follow that trade—a privilege which others could not have without having served an apprenticeship in the city, or having purchased the privilege of the city government.
The terms “free” and “freemen” were used with reference to a great variety of privileges, which, in England, were granted to one man, and not to another. Thus members of incorporated companies were called “freemen of the company,” or “free members of the company;” and were said to be “free of the said company.” The citizens of an incorporated city were called “the freemen of the city,” as “freemen of the city of London.”
In Jacobs’ Law Dictionary the following definitions, among others, are given of the word “freeman.”
“Freeman—liber homo.” * * “In the distinction of a freeman from a vassal under the feudal policy, liber homo was commonly opposed to vassus, or vassalus; the former denoting an allodial proprietor; the latter one who held of a superior.”
“The title of a freeman is also given to any one admitted to the freedom of a corporate town, or of any other corporate body, consisting, among other members, of those called freemen.”
“There are three ways to be a freeman of London; by servitude of an apprenticeship; by birthright, as being the son of a freeman; and by redemption, i. e. by purchase, under an order of the court of aldermen.”
“The customs of the city of London shall be tried by the certificate of the Mayor and Aldermen, * * * as the custom of distributing the effects of freemen deceased: of enrolling apprentices, or that he who is free of one trade may use another.”
“Elections of aldermen and common-councilmen are to be by freemen householders.”
“An agreement on marriage, that the husband shall take up the freedom of London, binds the distribution of the effects.”
The foregoing and other illustrations of the use of the words “free” and “freemen,” may be found in Jacob’s Law Dictionary, under the head of Freeman, London, &c.
And this use of these words has been common in the English laws for centuries. The term “freeman” is used in Magna Charta, (1215). The English statutes abound with the terms, in reference to almost every franchise or peculiar privilege, from the highest to the lowest, known to the English laws. It would be perfectly proper, and in consonance with the legal meaning and common understanding of the term, to say of Victoria, that “she is free of the throne of England,” and of a cobbler, that he “is free of his trade in the city of London.”
But the more common and important signification of the words is to designate the citizens, native or naturalized, and those specially entitled, as a matter of political and acknowledged right, to participate in, or be protected by the government, as distinguished from aliens, or persons attainted, or deprived of their political privileges as members of the state. Thus they use the term “free British subject”—“freeman of the realm,” &c. In short, the terms, when used in political papers, have a meaning very nearly, if not entirely synonymous,