This use of the words “free” and “freemen,” which is common to the English law, was introduced into this country at its first settlement, in all, or very nearly all the colonial charters, patents, &c., and continued in use, in this sense, until the time of the revolution; and, of course, until the adoption of the first state constitutions.17
The persons and companies, to whom the colonial charters were granted, and those who were afterwards to be admitted as their associates, were described as “freemen of said colony,” “freemen of said province,” “freemen of said company,” “freemen of the said company and body politick,” &c. (See charter of Rhode Island.)
Many, if not all the charters had a provision similar in substance to the following in the charter to Rhode Island, viz.:
“That all and every the subjects of us, our heirs and successors,” (i. e. of the king of England granting the charter,) “which are already planted and settled within our said colony of Providence Plantations, or which shall hereafter go to inhabit within the said colony, and all and every of their children which have been born there, or which shall happen hereafter to be born there, or on the sea going thither, or returning from thence, shall have and enjoy all liberties and immunities of free and natural subjects, within any of the dominions of us, our heirs and successors, to all intents, constructions and purposes whatsoever, as if they and every of them were born within the realm of England.”
The following enactment of William Penn, as proprietary and Governor of the Province of Pennsylvania and its territories, illustrates one of the common uses of the word “freeman,” as known to the English law, and as used in this country prior to the revolution—that is, as distinguishing a native born citizen, and one capable of holding real estate, &c., from a foreigner, not naturalized, and on that account subject to certain disabilities, such as being incompetent to hold real estate.
“And forasmuch as it is apparent that the just encouragement of the inhabitants of the province, and territories thereunto belonging, is likely to be an effectual way for the improvement thereof; and since some of the people that live therein and are likely to come thereunto, are foreigners, and so not freemen, according to the acceptation of the laws of England, the consequences of which may prove very detrimental to them in their estates and traffic, and so injurious to the prosperity of this province and territories thereof. Be it enacted, by the proprietary and governor of the province and counties aforesaid, by and with the advice and consent of the deputies of the freemen thereof, in assembly met, That all persons who are strangers and foreigners, that do now inhabit this province and counties aforesaid, that hold land in fee in the same, according to the law of a freeman, and who shall solemnly promise, within three months after the publication thereof, in their respective county courts where they live, upon record, faith and allegiance to the king of England and his heirs and successors, and fidelity and lawful obedience to the said William Penn, proprietary and governor of the said province and territories, and his heirs and assigns, according to the king’s letters patents and deed aforesaid, shall be held and reputed freemen of the province and counties aforesaid, in as ample and full a manner as any person residing therein. And it is hereby further enacted, by the authority aforesaid, That when at any time any person, that is a foreigner, shall make his request to the proprietary and governor of this province and territories thereof, for the aforesaid freedom, the said person shall be admitted on the conditions herein expressed, paying at his admission twenty shillings sterling, and no more, anything in this law, or any other law, act, or thing in this province, to the contrary in any wise notwithstanding.”
“Given at Chester,” &c., “under the hand and broad seal of William Penn, proprietary and governor of this province and territories thereunto belonging, in the second year of his government, by the king’s authority.
W. Penn.”18
Up to the time of our revolution, the only meaning which the words “free” and “freemen” had, in the English law, in the charters granted to the colonies, and in the important documents of a political character, when used to designate one person as distinguished from another, was to designate a person enjoying some franchise or privilege, as distinguished from aliens or persons not enjoying a similar franchise. They were never used to designate a free person as distinguished from a slave—for the very sufficient reason that all these fundamental laws presumed that there were no slaves.
Was such the meaning of the words “free” and “freemen,” as used in the constitutions adopted prior to 1789, in the States of Georgia, North and South Carolina, Maryland, Delaware and New York?
The legal rule of interpretation before mentioned, viz., that an innocent meaning must be given to all words that are susceptible of it—would compel us to give the words this meaning, instead of a meaning merely correlative with slavery, even if we had no other ground than the rule alone, for so doing. But we have other grounds. For instance:—Several of these constitutions have themselves explicitly given to the words this meaning. While not one of them has given them a meaning correlative with slaves, inasmuch as none of them purport either to establish, authorize, or even to know of the existence of slavery.
The constitution of Georgia (adopted in 1777) evidently uses the word “free” in this sense, in the following article:
“Art. 11. No person shall be entitled to more than one vote, which shall be given in the county where such person resides, except as before excepted; nor shall any person who holds any title of nobility, be entitled to a vote, or be capable of serving as a representative, or hold any post of honor, profit or trust, in this State, while such person claims his title of nobility; but if the person shall give up such distinction, in the manner as may be directed by any future legislature, then, and in such case, he shall be entitled to a vote, and represent, as before directed, and enjoy all the other benefits of a free citizen.”
The constitution of North Carolina, (adopted in 1776,) used the word in a similar sense, as follows:
“40. That every foreigner, who comes to settle in this State, having first taken an oath of allegiance to the same, may purchase, or by other just means acquire, hold, and transfer land, or other real estate, and after one year’s residence be deemed a free citizen.”
This constitution also repeatedly uses the word “freeman;” meaning thereby “a free citizen,” as thus defined.
The constitution of Pennsylvania, (adopted in 1776,) uses the word in the same sense:
“Sec. 42. Every foreigner, of good character, who comes to settle in this State, having first taken an oath or affirmation of allegiance to the same, may purchase, or by other just means acquire, hold and transfer land or other real estate; and after one year’s residence, shall be deemed a free denizen thereof, and entitled to all the rights of a natural born subject of this state, except that he shall not be capable of being elected a representative until after two years’ residence.”
The constitution of New York, (adopted in 1777,) uses the word in the same manner:
“Sec. 6. That every male inhabitant of full age, who has personally resided in one of the counties of this State for six months, immediately preceding the day of election, shall at such election be entitled to vote for representatives of the said county in assembly, if during the time aforesaid he shall have been a freeholder, possessing a freehold of the value of twenty pounds, within the said county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to the State. Provided always, That every person who now is a freeman of the city of Albany, or who was made a freeman of the city of New York, on or before the fourteenth day of October, in the year of our Lord one thousand seven hundred and seventy-five, and shall be actually and usually resident in the said cities respectively, shall be entitled to vote for representatives