has not been observed. The census or decennial enumeration has always included all the actual inhabitants of the land, except "Indians not taxed," whether aliens or slaves or both, without any regard to citizenship. Perhaps this is consistent with the words of the Constitution, though it is a manifest departure from principle, and ought to be corrected in practice, by making the law to restrict the enumeration to "the people [citizens] of the State," who alone can be represented in fact, according to the first section, and who alone on republican principles are entitled to be represented.' The census law, therefore, ought to be so amended as to take the aliens in a separate list, and exclude them from the enumeration of those on whose numbers the apportionment of Representatives is to be predicated. If the statute does not direct in this matter, it leaves it to the preference of the executive officers.

§ 133. Free persons and other persons are all persons; that is, all "the people of the several States." Who are the people," the citizens, this clause does not assist in determining. But we know from other sources, that neither aliens nor slaves can be, till the disabilities of alienage and slavery are removed by naturalization and emancipation respectively, when they are aliens and slaves no longer. The law that confers a new status abolishes the disabilities of the old.

1 An alien is not an inhabitant. — College v. Gove, 5 Pick. R. 373.

The law that should incorporate aliens and slaves with citizens, making them and counting them as "people of the several States," would confer a new status, and thereby not only abolish the disabilities of alienage and slavery, but extinguish the status which constitutes them.

§ 134. The franchise or right to be a citizen puts an end to whatever would prevent it. If, therefore, this provision of the Constitution authorizes the counting those who were aliens or slaves in the class of "all other persons," it thereby terminates their alienage or slavery, and transfers them directly to the class of the free, by conferring the franchise which makes them citizens. But there are decisive reasons for believing that the "people of the United States " intended no such thing in regard to either. As to the disabilities of alienage, they have made an express provision for the method of their removal, which of course they could not have intended to render nugatory by abolishing those disabilities altogether in this sweeping clause. As to slaves or slavery, the Constitution contains no intimation, admission, or recognition that there was or could be or could be any such class under its jurisdiction, but ignores them entirely. Of course it did not intend, in this indirect way, to abolish or destroy what it knew nothing about, and of which it did not even admit the existence.

§ 135. By the phrase "including those bound

to service for a term of years," it appears that some persons, not strictly and properly belonging to the class of free persons, are directed expressly to be placed in that class. The effect of this form of expression is to add to the class described some who would otherwise be excluded. If you say of persons twenty-one years of age, including those who have red hair, it is insensible and unmeaning; because those who have red hair were included before, as well as those who have black hair. But if you say of persons twenty-one years of age, including those who will complete their twenty-first year before Christmas, this is intelligible, and adds to the list those who would otherwise be excluded. So when you speak of free persons, including those bound to service for a term of years, you add some who were not otherwise included. This cannot mean aliens; because, whether they are or are not free in the sense of the Constitution, as aliens, they are no more or less so for being under bonds for a term of years. If they are not included without being under bonds, they are certainly no more free, by being under bonds for a term of years. So they cannot be added on account of this qualification. If alienage excludes them, they are aliens still. If it does not exclude them, they are not added by their bonds.

sons

136. This cannot mean slaves, because per"bound to service for a term of years

are

not slaves, and never were so considered anywhere. All such are free, in the sense of the Constitution, and included, independent of this clause. So they are not added by it.

The other phrase, "excluding Indians not taxed," is of a similar character. It excludes those who would otherwise be included. Indians are free, whatever may be the constitutional sense of the word. They are free in opposition to slave, certainly; and they are equally so in opposition to bond, for they are under no kind of bonds to any body. And they are free in opposition to alien; for they are natural-born citizens of the land, and so have the best possible franchise. They would necessarily be included, but for this express exclusion.

§ 137. If the second class, "all other persons,' are aliens, then the effect of this provision would be to take a portion of the aliens, and make them free, put them into the first class; and the ground of discrimination would be the bond to temporary, instead of permanent, service. Aliens as such are not bound at all; but if any of them are so, and a part of these are to be favorably distinguished from the rest in respect to citizenship, it would be those most permanently bound. For those bound permanently would at least be permanent residents, while those bound for "a term of years," which means any definite time, whether days, weeks, months, or years, might soon go back to the land from

whence they came.

But bondage of any sort has no relation to alienage; and, if the idea had been to take a portion of the aliens and put them among the free, they would not have been selected with reference to their being or not being bound to service or any thing else, nor with reference to the time the bond had to run; but with reference to age, property, education, business, or some other qualification for good citizenship.

§ 138. If the second class," all other persons," are slaves, then the purport of this provision would be to take a part of the slaves, the second class, and make them free persons, - place them in the first class. But if a slave can be bound at all, or be under any obligation, he certainly cannot be bound temporarily. No man can be a slave for a term of years, because this would give him a right to have his slavery terminate when the years were ended. But a slave cannot hold this right, and be a slave, any more than he can hold any other right, and retain the same status. So that, on the supposition that the second class are slaves, the provision in favor of those bound for a term of years means nothing, transfers nobody to the other class, and is altogether nugatory. So the second class, "all other persons" than free persons, are neither aliens nor slaves.

§ 139. The correllative of free, as here used, is bond; and the two classes are free persons