Chapter 80

Sir, the natural situation of this country seems to divide its interests into different classes. There are navigating and non-navigating States--the Northern are properly the navigating States: the Southern appear to possess neither the means nor the spirit of navigation. This difference of situation naturally produces a dissimilarity of interest and views respecting foreign commerce. It was the interest of the Northern States that there should be no restraints on the navigation, and that they should have full power, by a majority on Congress, to make commercial regulations. The Southern States wished to impose a restraint on the Northern, by requiring that two-thirds in Congress should be requisite to pass an act in regulation of commerce: they were apprehensive that the restraints of a navigation law would discourage foreigners, and by obliging them to employ the shipping of the Northern States would probably enhance their freight. This being the case, they insisted strenuously on having this provision engrafted in the Constitution; and the Northern States were as anxious in opposing it. On the other hand, the small States seeing themselves embraced by the confederation upon equal terms, wished to retain the advantages which they already possessed: the large States, on the contrary, thought it improper that Rhode Island and Delaware should enjoy an equal suffrage with themselves: from these sources a delicate and difficult contest arose. It became necessary, therefore, to compromise; or the Convention must have dissolved without effecting any thing. Would it have been wise and prudent in that body, in this critical situation, to have deserted their country? No. Every man who hears me--every wise man in the United States, would have condemned them. The Convention were obliged to appoint a committee for accommodation. In this committee the arrangement was formed as it now stands; and their report was accepted. It was a delicate point; and it was necessary that all parties should be indulged. Gentlemen will see, that if there had not been a unanimity, nothing could have been done: for the Convention had no power to establish, but only to recommend a government. Any other system would have been impracticable. Let a Convention be called to-morrow--let them meet twenty times; nay, twenty thousand times; they will have the same difficulties to encounter; the same clashing interests to reconcile.

But dismissing these reflections, let us consider how far the arrangement is in itself entitled to the approbation of this body. We will examine it upon its own merits.

The first thing objected to, is that clause which allows a representation for three-fifths of the negroes. Much has been said of the impropriety of representing men, who have no will of their own. Whether this be reasoning or declamation, I will not presume to say. It is the unfortunate situation of the southern States, to have a great part of their population, as well as property, in blacks. The regulations complained of was one result of the spirit of accommodation, which governed the Convention; and without this indulgence, no union could possibly have been formed. But, sir, considering some peculiar advantages which we derived from them, it is entirely just that they should be gratified. The southern States possess certain staples, tobacco, rice, indigo, &c., which must be capital objects in treaties of commerce with foreign nations; and the advantage which they necessarily procure in these treaties will be felt throughout all the States. But the justice of this plan will appear in another view. The best writers on government have held that representation should be compounded of persons and property. This rule has been adopted, as far as it could be, in the Constitution of New York. It will, however, by no means, be admitted, that the slaves are considered altogether as property. They are men, though degraded to the condition of slavery. They are persons known to the municipal laws of the States which they inhabit as well as to the laws of nature. But representation and taxation go together--and one uniform rule ought to apply to both. Would it be just to compute these slaves in the assessment of taxes, and discard them from the estimate in the apportionment of representatives? Would it be just to impose a singular burthen, without conferring some adequate advantage?

Another circumstance ought to be considered. The rule we have been speaking of is a general rule, and applies to all the States. Now, you have a great number of people in your State, which are not represented at all; and have no voice in your government: these will be included in the enumeration--not two-fifths--nor three-fifths, but the whole. This proves that the advantages of the plan are not confined to the southern States, but extend to other parts of the Union.

Mr. M. SMITH. I shall make no reply to the arguments offered by the honorable gentleman to justify the rule of apportionment fixed by this clause: for though I am confident they might be easily refuted, yet I am persuaded we must yield this point, in accommodation to the southern States. The amendment therefore proposes no alteration to the clause in this respect.

Mr. HARRISON. Among the objections, that, which has been made to the mode of apportionment of representatives, has been relinquished. I think this concession does honor to the gentleman who had stated the objection. He has candidly acknowledged, that this apportionment was the result of accommodation; without which no union could have been formed.

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PENNSYLVANIA CONVENTION.

Mr. WILSON. Much fault has been found with the mode of expression, used in the first clause of the ninth section of the first article. I believe I can assign a reason, why that mode of expression was used, and why the term slave was not admitted in this Constitution--and as to the manner of laying taxes, this is not the first time that the subject has come into the view of the United States, and of the Legislatures of the several States. The gentleman, (Mr. FINDLEY) will recollect, that in the present Congress, the quota of the federal debt, and general expenses, was to be in proportion to the value of land, and other enumerated property, within the States. After trying this for a number of years, it was found on all hands, to be a mode that could not be carried into execution. Congress were satisfied of this, and in the year 1783 recommended, in conformity with the powers they possessed under the articles of confederation, that the quota should be according to the number of free people, including those bound to servitude, and excluding Indians not taxed. These were the expressions used in 1783, and the fate of this recommendation was similar to all their other resolutions. It was not carried into effect, but it was adopted by no fewer than eleven, out of thirteen States; and it cannot but be matter of surprise, to hear gentlemen, who agreed to this very mode of expression at that time, come forward and state it as an objection on the present occasion. It was natural, sir, for the late convention, to adopt the mode after it had been agreed to by eleven States, and to use the expression, which they found had been received as unexceptionable before. With respect to the clause, restricting Congress from prohibiting the migration or importation of such persons, as any of the States now existing, shall think proper to admit, prior to the year 1808. The honorable gentleman says, that this clause is not only dark, but intended to grant to Congress, for that time, the power to admit the importation of slaves. No such thing was intended; but I will tell you what was done, and it gives me high pleasure, that so much was done. Under the present Confederation, the States may admit the importation of slaves as long as they please; but by this article, after the year 1808 the Congress will have power to prohibit such importation, notwithstanding the disposition of any State to the contrary. I consider this as laying the foundation for banishing slavery out of this country; and though the period is more distant than I could wish, yet it will produce the same kind, gradual change, which was pursued in Pennsylvania. It is with much satisfaction I view this power in the general government, whereby they may lay an interdiction on this reproachful trade; but an immediate advantage is also obtained, for a tax or duty may be imposed on such importation, not exceeding ten dollars for each person; and this, sir, operates as a partial prohibition; it was all that could be obtained, I am sorry it was no more; but from this I think there is reason to hope, that yet a few years, and it will be prohibited altogether; and in the mean time, the new States which are to be formed, will be under the control of Congress in this particular; and slaves will never be introduced amongst them. The gentleman says, that it is unfortunate in another point of view; it means to prohibit the introduction of white people from Europe, as this tax may deter them from coming amongst us; a little impartiality and attention will discover the care that the Convention took in selecting their language. The words are the _migration_ or IMPORTATION of such persons, &c., shall not be prohibited by Congress prior to the year 1808, but a tax or duty may be imposed on such importation; it is observable here, that the term migration is dropped, when a tax or duty is mentioned, so that Congress have power to impose the tax only on those imported.

I recollect, on a former day, the honorable gentlemen from Westmoreland (Mr. FINDLEY,) and the honorable gentleman from Cumberland (Mr. WHITEHILL,) took exception against the first clause of the 9th section, art. 1, arguing very unfairly, that because Congress might impose a tax or duty of ten dollars on the importation of slaves, within any of the United States, Congress might therefore permit slaves to be imported within this State, contrary to its laws. I confess I little thought that this part of the system would be excepted to.

I am sorry that it could be extended no further; but so far as it operates, it presents us with the pleasing prospect, that the rights of mankind will be acknowledged and established throughout the union.

If there was no other lovely feature in the Constitution but this one, it would diffuse a beauty over its whole countenance. Yet the lapse of a few years! and Congress will have power to exterminate slavery from within our borders.

How would such a delightful prospect expand the breast of a benevolent and philanthropic European? Would he cavil at an expression? catch at a phrase? No, sir, that is only reserved for the gentleman on the other side of your chair to do.

Mr. McKEAN. The arguments against the Constitution are, I think, chiefly these:....

That migration or importation of such persons, as any of the States shall admit, shall not be prohibited prior to 1808, nor a tax or duty imposed on such importation exceeding ten dollars for each person.

Provision is made that Congress shall have power to prohibit the importation of slaves after the year 1808, but the gentlemen in opposition, accuse this system of a crime, because it has not prohibited them at once. I suspect those gentlemen are not well acquainted with the business of the diplomatic body, or they would know that an agreement might be made, that did not perfectly accord with the will and pleasure of any one person. Instead of finding fault with what has been gained, I am happy to see a disposition in the United States to do so much.

VIRGINIA CONVENTION.

GOV. RANDOLPH. This is one point of weakness I wish for the honor of my countrymen that it was the only one. There is another circumstance which renders us more vulnerable. Are we not weakened by the population of those whom we hold in slavery? The day may come when they may make impression upon us. Gentlemen who have been long accustomed to the contemplation of the subject, think there is a cause of alarm in this case: the number of those people, compared to that of the whites, is in an immense proportion: their number amounts to 236,000--that of the whites, only to 352,000. * * * * I beseech them to consider, whether Virginia and North Carolina, both oppressed with debts and slaves, can defend themselves externally, or make their people happy internally.

GEORGE MASON. We are told in strong language, of dangers to which we will be exposed unless we adopt this Constitution. Among the rest, domestic safety is said to be in danger. This government does not attend to our domestic safety. It authorizes the importation of slaves for twenty-odd years, and thus continues upon us that nefarious trade. Instead of securing and protecting us, the continuation of this detestable trade adds daily to our weakness. Though this evil is increasing, there is no clause in the Constitution that will prevent the Northern and Eastern States from meddling with our whole property of that kind. There is a clause to prohibit the importation of slaves after twenty years, but there is no provision made for securing to the Southern States those they now possess. It is far from being a desirable property. But it will involve us in great difficulties and infelicity to be now deprived of them. There ought to be a clause in the Constitution to secure us that property, which we have acquired under our former laws, and the loss of which would bring ruin on a great many people.

MR. LEE. The honorable gentleman abominates it, because it does not prohibit the importation of slaves, and because it does not secure the continuance of the existing slavery! Is it not obviously inconsistent to criminate it for two contradictory reasons? I submit it to the consideration of the gentleman, whether, if it be reprehensible in the one case, it can be censurable in the other? MR. LEE then concluded by earnestly recommending to the committee to proceed regularly.

MR. HENRY. It says that "no state shall engage in war, unless actually invaded." If you give this clause a fair construction, what is the true meaning of it? What does this relate to? Not domestic insurrections, but war. If the country be invaded, a State may go to war; but cannot suppress insurrections. If there should happen an insurrection of slaves, the country cannot be said to be invaded.--They cannot therefore suppress it, without the interposition of Congress.

MR. GEORGE NICHOLAS. Another worthy member says, there is no power in the States to quell an insurrection of slaves. Have they it now? If they have, does the Constitution take it away? If it does, it must be in one of the three clauses which have been mentioned by the worthy member. The first clause gives the general government power to call them out when necessary. Does this take it away from the States? No. But it gives an additional security: for, besides the power in the State governments to use their own militia, it will be the duty of the general government to aid them with the strength of the Union when called for. No part of this Constitution can show that this power is taken away.

Mr. GEORGE MASON. Mr. Chairman, this is a fatal section, which has created more dangers than any other. The first clause allows the importation of slaves for twenty years. Under the royal government, this evil was looked upon as a great oppression, and many attempts were made to prevent it; but the interest of the African merchants prevented its prohibition. No sooner did the revolution take place, than it was thought of. It was one of the great causes of our separation from Great Britain. Its exclusion has been a principal object of this State, and most of the States in the Union. The augmentation of slaves weakens the States; and such a trade is diabolical in itself, and disgraceful to mankind. Yet, by this Constitution, it is continued for twenty years. As much as I value an union of all the States, I would not admit the Southern States into the Union, unless they agreed to the discontinuance of this disgraceful trade, because it would bring weakness and not strength to the Union. And though this infamous traffic be continued, we have no security for the property of that kind which we have already. There is no clause in this Constitution to secure it; for they may lay such tax as will amount to manumission. And should the government be amended, still this detestable kind of commerce cannot be discontinued till after the expiration of twenty years. For the fifth article, which provides for amendments, expressly excepts this clause. I have ever looked upon this as a most disgraceful thing to America. I cannot express my detestation of it. Yet they have not secured us the property of the slaves we have already. So that, "they have done what they ought not to have done, and have left undone what they ought to have done"

Mr. MADISON. Mr. Chairman, I should conceive this clause to be impolitic, if it were one of those things which could be excluded without encountering greater evils. The Southern States would not have entered into the union of America, without the temporary permission of that trade. And if they were excluded from the union, the consequences might be dreadful to them and to us. We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The union in general is not in a worse situation. Under the articles of confederation, it might be continued forever: but by this clause an end may be put to it after twenty years. There is, therefore, an amelioration of our circumstances. A tax may be laid in the mean time; but it is limited, otherwise Congress might lay such a tax as would amount to a prohibition. From the mode of representation and taxation, Congress cannot lay such a tax on slaves as will amount to manumission. Another clause secures us that property which we now possess. At present, if any slave elopes to any of those States where slaves are free, he becomes emancipated by their laws. For the laws of the States are uncharitable to one another in this respect. But in this Constitution, "no person held to service, or labor, in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due." This clause was expressly inserted to enable owners of slaves to reclaim them. This is a better security than any that now exist. No power is given to the general government to interpose with respect to the property in slaves now held by the States. The taxation of this State being equal only to its representation, such a tax cannot be laid as he supposes. They cannot prevent the importation of slaves for twenty years: but after that period, they can. The gentlemen from South Carolina and Georgia argued in this manner: "We have now liberty to import this species of property, and much of the property now possessed, has been purchased, or otherwise acquired, in contemplation of improving it by the assistance of imported slaves. What would be the consequence of hindering us from it? The slaves of Virginia would rise in value, and we would be obliged to go to your markets." I need not expatiate on this subject. Great as the evil is, a dismemberment of the union would be worse. If those States should disunite from the other States, for not including them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.

Mr. TYLER warmly enlarged on the impolicy, iniquity, and disgracefulness of this wicked traffic. He thought the reasons urged by gentlemen in defence of it were inconclusive, and ill founded. It was one cause of the complaints against British tyranny, that this trade was permitted. The Revolution had put a period to it; but now it was to be revived. He thought nothing could justify it. This temporary restriction on Congress militated, in his opinion, against the arguments of gentlemen on the other side, that what was not given up, was retained by the States; for that if this restriction had not been inserted, Congress could have prohibited the African trade. The power of prohibiting it was not expressly delegated to them; yet they would have had it by implication, if this restraint had not been provided. This seemed to him to demonstrate most clearly the necessity of restraining them by a bill of rights, from infringing our unalienable rights. It was immaterial whether the bill of rights was by itself, or included in the Constitution. But he contended for it one way or the other. It would be justified by our own example, and that of England. His earnest desire was, that it should be handed down to posterity, that he had opposed this wicked clause.

Mr. MADISON. As to the restriction in the clause under consideration, it was a restraint on the exercise of a power expressly delegated to Congress, namely, that of regulating commerce with foreign nations.

Mr. HENRY insisted, that the insertion of these restrictions on Congress, was a plain demonstration that Congress could exercise powers by implication. The gentleman had admitted that Congress could have interdicted the African trade, were it not for this restriction. If so, the power not having been expressly delegated, must be obtained by implication. He demanded where, then, was their doctrine of reserved rights? He wished for negative clauses to prevent them from assuming any powers but those expressly given. He asked why it was moited to secure us that property in slaves, which we held now? He feared its omission was done with design. They might lay such heavy taxes on slaves, as would amount to emancipation; and then the Southern States would be the only sufferers. His opinion was confirmed by the mode of levying money. Congress, he observed, had power to lay and collect taxes, imposts, and excises. Imposts (or duties) and excises, were to be uniform. But this uniformity did not extend to taxes. This might compel the Southern States to liberate their negroes. He wished this property therefore to be guarded. He considered the clause which had been adduced by the gentleman as a security for this property, as no security at all. It was no more than this--that a runaway negro could be taken up in Maryland or New York. This could not prevent Congress from interfering with that property by laying a grievous and enormous tax on it, so as to compel owners to emancipate their slaves rather than pay the tax. He apprehended it would be productive of much stockjobbing, and that they would play into one another's hands in such a manner as that this property would be lost to the country.

Mr. GEORGE NICHOLAS wondered that gentlemen who were against slavery would be opposed to this clause; as after that period the slave trade would be done away. He asked if gentlemen did not see the inconsistency of their arguments? They object, says he, to the Constitution, because the slave trade is laid open for twenty-odd years; and yet tell you, that by some latent operation of it, the slaves who are now, will be manumitted. At that same moment, it is opposed for being promotive and destructive of slavery. He contended that it was advantageous to Virginia, that it should be in the power of Congress to prevent the importation of slaves after twenty years, as it would then put a period to the evil complained of.