In the provision under consideration the phraseology is remarkable. The word slave, though then in common use, to designate a negro held to service or labor for life, is not employed. It is impossible to believe that this peculiarity was accidental, or to overlook the inevitable inference from it. This provision does not recognize slavery except as it recognizes apprenticeship. African slavery, according to the expressly selected words, and therefore according to the manifest intent, of the framers of the Constitution, is here recognized as a claim to the service or labor of a negro: nothing more, nothing else.
It avails nothing to allege, even if it were true, that in 1787, when these words were written, a negro was commonly considered property. Chief-Justice Taney, delivering the decision of the Supreme Court in the Dred Scott case, asserts that in the thirteen colonies which formed the Constitution "a negro of the African race was regarded as an article of property." This may or it may not have been true of a majority in those days. True or not, it refers only to the opinions of individual colonists; and these cannot be received as a basis of construction for the words, nor can they rebut the plain intent, of a constitutional provision. It is not what individual colonists believed, but what the framers of the Constitution incorporated in that instrument, that we have to deal with.
They avoided the use of the word slave. They incorporated the words "person held to service or labor." They admitted the claim to service or labor: none other: a claim (regarded in its constitutional aspect) in the nature of what the law calls a chose in action,—or, in other words, a thing to which, though it cannot be strictly said to be in actual possession, one has a right.
In common parlance we employ words, in connection with Slavery, which imply much more than such a claim. We say slave-holder and slave-owner; we speak of the institution of Slavery: but we do not say apprentice-holder or apprentice-owner; nor do we speak of the institution of Apprenticeship. The reason, whether valid or invalid, for such variance of phraseology in speaking of the two classes of claims, is not to be found in any admission, express or implied, in the provision of the Constitution now under consideration. In it the framers of that instrument employed one and the same phrase to designate the master of the apprentice and the master of the slave. Both are termed "the party to whom service or labor may be due."
Is there any other clause in the Constitution in which a distinction is made between the apprentice and the slave? There is one, and only one. In determining the number of inhabitants in each State as a basis of representation and taxation, it is provided that the whole number of apprentices shall be included, while three-fifths only of the slaves are to be taken into account. But the wording of this clause is especially noteworthy. It reads thus:—
"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 service for a term of years, and excluding Indians not taxed, three-fifths of all other persons."
To avoid mistakes, it was deemed necessary to include apprentices by express specification. Why this? Every one would have felt it to be absurd, if the words had been, "the whole number of free persons, including farm-laborers." But why absurd? Because persons engaged in free labor are, beyond question, free persons. Not so those "bound to service." While so bound, apprentices may be considered not free; when the "term of years," and with it the bondage to service, expires, they become free, or, as the common phrase is, "their own masters." It was necessary and proper, therefore, to specify whether, in the enumeration of inhabitants, they were to be estimated as free persons or as persons not free.
But would there be any fairness in construing this clause into an admission, by inference or otherwise, that an apprentice, while "bound to service," is a slave? Clearly not. He is a person not free for the time, because another has a legal claim to his service or labor. The Constitution admits this: nothing more.
And so of slaves. "Other persons" they are called, in contradistinction to "free persons"; therefore persons not free: and properly so called, seeing that, like the apprentice before his term expires, they are "bound to service," and that, unlike him, they remain thus bound for life.
But unless we admit that the apprentice, bound to service for a season, is a slave during that season, we cannot justly allege, that, by this provision of the Constitution, the negro, held to service or labor for life, is recognized as a slave.