Chapter 78

Mr. Ellsworth was for taking the plan as it is. This widening of opinions had a threatening aspect. If we do not agree on this middle and moderate ground, he was afraid we should lose two States, with such others as may be disposed to stand aloof; should fly into a variety of shapes and directions, and most probably into several confederations,--and not without bloodshed.

On the question for committing Section 6, as to a navigation act, to a member from each State,--New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye--9; Connecticut, New Jersey, no--2.

The Committee appointed were Messrs. Langdon, King, Johnson, Livingston, Clymer, Dickinson, L. Martin, Madison, Williamson, C.C. Pinckney, and Baldwin.

To this Committee were referred also the two clauses above mentioned of the fourth and fifth Sections of Article 7.--pp. 1390 to 1397.

Friday, August 24, 1787

_In Convention_,--Governor Livingston, from the committee of eleven, to whom were referred the two remaining clauses of the fourth section, and the fifth and sixth sections, of the seventh Article, delivered in the following Report:

"Strike out so much of the fourth section as was referred to the Committee, and insert, 'The migration or importation of such persons as the several States, now existing, shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1800; but a tax or duty may be imposed on such migration or importation, at a rate not exceeding the average of the duties laid on imports.

"The fifth Section to remain as in the Report. The sixth Section to be stricken out."--p. 1415.

SATURDAY, August 25, 1787.

The Report of the Committee of eleven (see Friday, the twenty-fourth), being taken up,--

Gen. PINCKNEY moved to strike out the words, "the year eighteen hundred," as the year limiting the importation of slaves; and to insert the words, "the year eighteen hundred and eight."

Mr. GORHAM seconded the motion.

Mr. MADISON. Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the American character, than to say nothing about it in the Constitution.

On the motion, which passed in the affirmative,--New-Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, aye--7; New-Jersey, Pennsylvania, Delaware, Virginia, no--4.

Mr. GOUVERNEUR MORRIS was for making the clause read at once, "the importation of slaves in North Carolina, South Carolina, and Georgia, shall not be prohibited, &c." This he said, would be most fair, and would avoid the ambiguity by which, under the power with regard to naturalization, the liberty reserved to the States might be defeated. He wished it to be known, also, that this part of the Constitution was a compliance with those States. If the change of language, however, should be objected to, by the members from those States, he should not urge it.

Col. MASON was not against using the term "slaves," but against naming North Carolina, South Carolina, and Georgia, lest it should give offence to the people of those States.

Mr. SHERMAN liked a description better than the terms proposed, which had been declined by the old Congress, and were not pleasing to some people.

Mr. CLYMER concurred with Mr. SHERMAN.

Mr. WILLIAMSON said, that both in opinion and practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in South Carolina and Georgia on those terms, than to exclude them from the Union.

Mr. GOUVERNEUR MORRIS withdrew his motion.

Mr. DICKINSON wished the clause to be confined to the States which had not themselves prohibited the importation of slaves; and for that purpose moved to amend the clause, so as to read: "The importation of slaves into such of the States as shall permit the same, shall not be prohibited by the Legislature of the United States, until the year 1808;" which was disagreed to, _nem. con_.[4]

[Footnote 4: In the printed Journals, Connecticut, Virginia, and Georgia, voted in the affirmative.]

The first part of the Report was then agreed to, amended as follows: "The migration or importation of such persons as the several States now existing shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1808,"--

New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, aye--7; New Jersey, Pennsylvania, Delaware, Virginia, no--4.

Mr. BALDWIN, in order to restrain and more explicitly define, "the average duty," moved to strike out of the second part the words, "average of the duties laid on imports," and insert "common impost on articles not enumerated;" which was agreed to, _nem. con_.

Mr. SHERMAN was against this second part, as acknowledging men to be property, by taxing them as such under the character of slaves.

Mr. KING and Mr. LANGDON considered this as the price of the first part. Gen. PINCKNEY admitted that it was so. Col. MASON. Not to tax, will be equivalent to a bounty on, the importation of slaves.

Mr. GORHAM thought that Mr. SHERMAN should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them.

Mr. GOUVERNEUR MORRIS remarked, that, as the clause now stands, it implies that the Legislature may tax freemen imported.

Mr. SHERMAN, in answer to Mr. GORHAM, observed, that the smallness of the duty showed revenue to be the object, not the discouragement of the importation.

Mr. MADISON thought it wrong to admit in the Constitution the idea that there could be property in men. The reason of duties did not hold, as slaves are not, like merchandize consumed, &c.

Col. MASON, in answer to Mr. GOUVERNEUR MORRIS. The provision, as it stands, was necessary for the case of convicts, in order to prevent the introduction of them.

It was finally agreed, _nem. con_., to make the clause read: "but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person;" and then the second part, as amended, was agreed to.--_pp_. 1427 to 30.

TUESDAY, August 28, 1787.

Article 14, was then taken up.[5]

[Footnote 5: Article 14 was,--The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.--EDITOR.]

General PINCKNEY was not satisfied with it. He seemed to wish some provision should be included in favor of property in slaves.

On the question on Article 14,--New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, aye--9; South Carolina, no--1; Georgia, divided.

Article 15,[6] being then taken up, the words, "high misdemeanor," were struck out, and the words, "other crime," inserted, in order to comprehend all proper cases; it being doubtful whether "high misdemeanor" had not a technical meaning too limited.

[Footnote 6: Article 15 was,--Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.--EDITOR.]

Mr. BUTLER and Mr. PINCKNEY moved to require "fugitive slaves and servants to be delivered up like criminals."

Mr. WILSON. This would oblige the Executive of the State to do it, at the public expense.

Mr. SHERMAN saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.

Mr. BUTLER withdrew his proposition, in order that some particular provision might be made, apart from this article.

Article 15, as amended, was then agreed to, _nem. con_.--_pp_. 1447-8.

WEDNESDAY, AUGUST 29, 1787.

Article 7, Section 6, by the Committee of Eleven reported to be struck out (see the twenty-fourth inst.) being now taken up,--

Mr. PINCKNEY moved to postpone the Report, in favor of the following proposition: "That no act of the Legislature for the purpose of regulating the Commerce of the United States with foreign powers, among the several States, shall be passed without the assent of two-thirds of the members of each House." He remarked that there were five distinct commercial interests.

The power of regulating commerce was a pure concession on the part of the Southern States. They did not need the protection of the Northern States at present.--_p_. 1450.

General PINCKNEY said it was the true interest of the Southern States to have no regulation of commerce; but considering the loss brought on the commerce of the Eastern States by the Revolution, their liberal conduct towards the views[7] of South Carolina, and the interest the weak Southern States had in being united with the strong Eastern States, he thought it proper that no fetters should be imposed on the power of making commercial regulations, and that his constituents, though prejudiced against the Eastern States, would be reconciled to this liberality. He had, himself, he said, prejudices against the Eastern States before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever.--_p_. 1451.

[Footnote 7: He meant the permission to import slaves. An understanding on the two subjects of _navigation_ and _slavery_, had taken place between those parts of the Union, which explains the vote of the motion depending, as well as the language of General Pinckney and others.]

Mr. PINCKNEY replied, that his enumeration meant the five minute interests. It still left the two great divisions of Northern and Southern interests.

Mr. GOUVERNEUR MORRIS opposed the object of the motion as highly injurious.--A navy was essential to security, particularly of the Southern States;--

Mr. WILLIAMSON. As to the weakness of the Southern States, he was not alarmed on that account. The sickliness of their climate for invaders would prevent their being made an object. He acknowledged that he did not think the motion requiring two-thirds necessary in itself; because if a majority of the Northern States should push their regulations too far, the Southern States would build ships for themselves; but he knew the Southern people were apprehensive on this subject, and would be pleased with the precaution.

Mr. SPAIGHT was against the motion. The Southern States could at any time save themselves from oppression, by building ships for their own use.--_p_. 1452.

Mr. BUTLER differed from those who considered the rejection of the motion as no concession on the part of the Southern States. He considered the interests of these and of the Eastern States to be as different as the interests of Russia and Turkey. Being, notwithstanding, desirous of conciliating the affections of the Eastern States, he should vote against requiring two-thirds instead of a majority.--_p_. 1453.

Mr. MADISON. He added, that the Southern States would derive an essential advantage, in the general security afforded by the increase of our maritime strength. He stated the vulnerable situation of them all, and of Virginia in particular.

Mr. RUTLEDGE was against the motion of his colleague. At the worst, a navigation act could bear hard a little while only on the Southern States. As we are laying the foundation for a great empire, we ought to take a permanent view of the subject, and not look at the present moment only.

Mr. GORMAN. The Eastern States were not led to strengthen the Union by fear for their own safety.

He deprecated the consequences of disunion; but if it should take place, it was the Southern part of the Continent that had most reason to dread them.

On the question to postpone, in order to take up Mr. PINCKNEY's motion,--

Maryland, Virginia, North Carolina, Georgia, aye--4; New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, South Carolina, no--7. The Report of the Committee for striking out Section 6, requiring two-thirds of each House to pass a navigation act, was then agreed to, _nem. con_.

Mr. BUTLER moved to insert after Article 15, "If any person bound to service or labor in any of the United States, shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor,"--which was agreed to, _nem. con_.--_p_. 1454-5-6.

THURSDAY, August 30, 1787.

Article 18, being taken up,

On a question for striking out "domestic violence," and inserting "insurrections," it passed in the negative,--New Jersey, Virginia, North Carolina, South Carolina, Georgia, aye--5; New Hampshire, Massachusetts, Connecticut, Pennsylvania, Delaware, Maryland, no--6.--_pp_. 1466-7.

MONDAY, September 10, 1787.

Mr. RUTLEDGE said he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property, and prejudiced against it. In order to obviate this objection, these words were added to the proposition: "provided that no amendments, which may be made prior to the year 1808 shall in any manner affect the fourth and fifth sections of the seventh Article:"--_p_. 1536.

TUESDAY, September 13, 1787.

Article 1, Section 2. On motion of Mr. RANDOLPH, the word "servitude" was struck out, and "service" unanimously[8] inserted, the former being thought to express the condition of slaves, and the latter the obligations of free persons.

[Footnote 8: See page 372 of the printed journal.]

Mr. DICKENSON and Mr. WILSON moved to strike out, "and direct taxes," from Article 1, Section 2, as improperly placed in a clause relating merely to the Constitution of the House of Representatives.

Mr. GOUVERNEUR MORRIS. The insertion here was in consequence of what had passed on this point; in order to exclude the appearance of counting the negroes in the _representation_. The including of them may now be referred to the object of direct taxes, and incidentally only to that of representation.

On the motion to strike out, "and direct taxes," from this place,--

New Jersey, Delaware, Maryland, aye--3; New Hampshire, Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no--8.--_pp_. 1569-70.

SATURDAY, September 15, 1787.

Article 4, Section 2, (the third paragraph,) the term "legally" was struck out; and the words, "under the laws thereof," inserted after the word "State," in compliance with the wish of some who thought the term _legal_ equivocal, and favoring the idea that slavery was legal in a moral view.--p. 1589.

Mr. GERRY stated the objections which determined him to withhold his name from the Constitution: 1-2-3-4-5-6, that three-fifths of the blacks are to be represented, as if they were freemen.--p. 1595.

LIST OF MEMBERS OF THE FEDERAL CONVENTION WHO FORMED THE CONSTITUTION OF THE UNITED STATES.

_From_ _Attended._ New Hampshire, 1 John Langdon, July 23, 1787. _John Pickering_, 2 Nicholas Gilman, " 23. _Benjamin West_, Massachusetts, _Francis Dana_, Elbridge Gerry, May 29. 3 Nath'l Gorham, " 28. 4 Rufus King, " 25. Caleb Strong, May 28. Rhode Island, (No appointment.) Connecticut, 5 W.S. Johnson, June 2. 6 Roger Sherman, May 30. Oliver Ellsworth, " 29. New York, Robert Yates, " 25. 7 Alex'r Hamilton, " 25. John Lansing, June 2. New Jersey, 8 Wm. Livingston, " 5. 9 David Brearly, May 25. Wm. C. Houston, May 25. 10 Wm. Patterson, do. _John Nielson_, _Abraham Clark_. 11 Jonathan Dayton, June 21. Pennsylvania, 12 Benj. Franklin, May 28. 13 Thos. Mifflin, do. 14 Robert Morris, May 25. 15 Geo. Clymer, " 28. 16 Thos. Fitzsimons, " 25. 17 Jared Ingersoll, " 28. 18 James Wilson, " 25. 19 Gouv'r Morris, " 25. Delaware, 20 Geo. Reed, " 25. 21 G. Bedford, Jr. " 28. 22 John Dickenson, " 28. 23 Richard Bassett, " 25. 24 Jacob Broom, " 25. Maryland, 25 James M'Henry, " 29. 26 Daniel of St. Tho. Jenifer, June 2. 27 Daniel Carroll, July 9. John F. Mercer, Aug. 6. Luther Martin, June 9. Virginia, 28 G. Washington, May 25. _Patrick Henry_, (declined.) Edmund Randolph, " 25. 29 John Blair, " 25. 30 Jas. Madison, Jr. " 25. George Mason, " 25. George Wythe, " 25. James McClurg, (in room of P. Henry) " 25. 31 Wm. Blount (in room of R. Caswell), June 20. _Willie Jones_, (declined.) 32 R.D. Spaight, May 25. 33 Hugh Williamson, (in room of W. Jones,) May 25. South Carolina, 34 John Rutledge, " 25. 35 Chas. C. Pinckney, " 25. 36 Chas. Pinckney, " 25. 37 Peirce Butler, " 25. Georgia, 38 William Few, May 25. 39 Abr'm Baldwin, June 11. William Pierce, May 31. _George Walton._ Wm. Houston, June 1. _Nath'l Pendleton._

Those with numbers before their names signed the Constitution. 39 Those in italics never attended. 10 Members who attended, but did not sign the Constitution, 16 -- 65

Extracts from a speech of Luther Martin, (delivered before the Legislature of Maryland,) one of the delegates from Maryland to the Convention that formed the Constitution of the United States.

With respect to that part of the _second_ section of the _first_ Article, which relates to the apportionment of representation and direct taxation, there were considerable objections made to it, besides the great objection of inequality--It was urged, that no principle could justify taking _slaves_ into computation in apportioning the number of _representatives_ a State should have in the government--That it involved the absurdity of increasing the power of a State in making laws for _free men_ in proportion as that State violated the rights of freedom--That it might be proper to take slaves into consideration, when _taxes_ were to be apportioned, because it had a tendency to _discourage slavery_; but to take them into account in giving representation tended to _encourage_ the _slave trade_, and to make it the interest of the States to continue that _infamous traffic_--That slaves could not be taken into account as _men_, or _citizens_, because they were not admitted to the _rights of citizens_, in the States which adopted or continued slavery--If they were to be taken into account as _property_, it was asked, what peculiar circumstance should render this property (of all others the most odious in its nature) entitled to the high privilege of conferring consequence and power in the government to its possessors, rather than _any other_ property: and why _slaves_ should, as property, be taken into account rather than horses, cattle, mules, or any other species; and it was observed by an honorable member from Massachusetts, that he considered it as dishonorable and humiliating to enter into compact with the _slaves_ of the _Southern States_, as it would with the _horses_ and _mules_ of the _Eastern_.

By the ninth section of this Article, the importation of such persons as any of the States now existing, shall think proper to admit, shall not be prohibited prior to the year 1808, but a duty may be imposed on such importation, not exceeding ten dollars for each person.

The design of this clause is to prevent the general government from prohibiting the importation of slaves; but the same reasons which caused them to strike out the word "national," and not admit the word "stamps," influenced them here to guard against the word "_slaves_." They anxiously sought to avoid the admission of expressions which might be odious in the ears of Americans, although they were willing to admit into their system those _things_ which the expressions signified; and hence it is that the clause is so worded as really to authorize the general government to impose a duty of ten dollars on every foreigner who comes into a State to become a citizen, whether he comes absolutely free, or qualifiedly so as a servant; although this is contrary to the design of the framers, and the duty was only meant to extend to the importation of slaves.

This clause was the subject of a great diversity of sentiment in the Convention. As the system was reported by the committee of detail, the provision was general, that such importation should not be prohibited, without confining it to any particular period. This was rejected by eight States--Georgia, South Carolina, and, I think, North Carolina, voting for it.

We were then told by the delegates of the two first of those States, that their States would never agree to a system, which put it in the power of the general government to prevent the importation of slaves, and that they, as delegates from those States, must withhold their assent from such a system.

A committee of one member from each State was chosen by ballot, to take this part of the system under their consideration, and to endeavor to agree upon some report, which should reconcile those States. To this committee also was referred the following proposition, which had been reported by the committee of detail, to wit: "No navigation act shall be passed without the assent of two-thirds of the members present in each house;" a proposition which the staple and commercial States were solicitous to retain, lest their commerce should be placed too much under the power of the Eastern States; but which these last States were as anxious to reject. This committee, of which also I had the honor to be a member, met and took under their consideration the subjects committed to them. I found the _Eastern_ States, notwithstanding their _aversion to slavery_, were very willing to indulge the Southern States, at least with a temporary liberty to prosecute the _slave trade_, provided the Southern States would in their turn gratify them, by laying no restriction on navigation acts; and after a very little time, the committee, by a great majority, agreed on a report, by which the general government was to be prohibited from preventing the importation of slaves for a limited time, and the restricted clause relative to navigation acts was to be omitted.