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CHAPTER XIII.
THE CONSTITUTION AS ITS FRAMERS INTENDED TO MAKE IT

"Yes! – it cannot be denied – the slaveholding lords of the South prescribed, as a condition of their assent to the Constitution, three special provisions to secure the perpetuity of their dominion over their slaves." —John Quincy Adams.

The question, What kind of a Constitution did its framers intend to make? is purely an historical one; and it must be obvious to all, that any thing like a complete statement of the evidence on this point cannot be given within the limits of this pamphlet.

On the 17th of September, 1787, the Philadelphia Convention adopted the plan of the present Constitution. The draft thus made was submitted to the people, assembled in State Conventions, "for their assent and ratification." President Madison has preserved a record of the debates in the Philadelphia Convention; and we have also published accounts of the debates in several of the State Conventions. We draw our evidence mainly from these sources.

Apportionment of Representatives. (Const. Art. 1, sec. 2.)

On the 18th of April, 1783, the Continental Congress passed a resolve, recommending the States to amend the Articles of Confederation in such manner that the national expenses should be defrayed out of a common treasury, "which shall be supplied by the several States, in proportion to the whole number of white or other free inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three-fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes, in each State." This amendment was adopted by eleven out of the thirteen States.

A single glance is sufficient to satisfy any one, that, under the expression in this resolve, "all other persons," slaves were intended; and an equally cursory glance suffices to show, that Art. 1, sec. 2, of the Constitution is derived, almost copied, from this resolve. Did not the framers of the Constitution, in adopting the same expression (Art. 1, sec. 2), mean the same thing as the Continental Congress?

In the Massachusetts Convention, Art. 1, sec. 2, of the Constitution having been read, Rufus King, one of its framers, rose to explain it: —

"This paragraph states, that the number of free persons 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. These persons are the slaves. By this rule is representation and taxation to be apportioned, and it was adopted because it was the language of all America…

Five negro-children of South Carolina are to pay as much tax as the three governors of New Hampshire, Massachusetts, and Connecticut."

In the New York Convention, Alexander Hamilton, another of the framers, remarked: —

"The first thing objected to is that clause which allows a representation for three-fifths of the negroes…

"The regulation 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."

In the Pennsylvania Convention, James Wilson, another of the framers, said, referring to the resolve of the Continental Congress passed in 1783: —

"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."

In a speech before the legislature of Maryland, Luther Martin, also a delegate to the Philadelphia Convention, offers the following clear and unmistakable testimony: —

"With respect to that part of the second section of the first article, 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 freemen, 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."

In the North Carolina Convention, Wm. R. Davie, a member of the Convention who framed the Constitution, said: —

"The Eastern States had great jealousies on this subject. They insisted that their cows and horses were equally entitled to representation; that the one was property as well as the other. It became our duty, on the other hand, to acquire as much weight as possible in the legislation of the Union; and, as the Northern States were more populous in whites, this only could be done by insisting that a certain proportion of our slaves should make a part of the computed population."

In the South Carolina Convention, General Chas. C. Pinckney, another of the framers of the Constitution, said: —

"We were at a loss for some time for a rule to ascertain the proportionate wealth of the States. At last we thought that the productive labor of the inhabitants was the best rule for ascertaining their wealth. In conformity to this rule, joined to a spirit of concession, we determined that representatives should be apportioned among the several States, by adding to the whole number of free persons, three-fifths of the slaves."

Permission of the African Slave-trade. (Const. Art. 1, sec. 9.)

In the Massachusetts Convention, Mr. Dawes, speaking in relation to Art. 1, sec. 2, said that —

"Gentlemen would do well to connect the passage in dispute with another article in the Constitution, that permits Congress, in the year 1808, wholly to prohibit the importation of slaves, and in the meantime to impose a duty of ten dollars a head on such blacks as should be imported before that period."

Many persons spoke in the Convention on this section; and, among others, Judge Dana rejoiced that a door was opened by it for the annihilation of the slave-trade.

In the Pennsylvania Convention, Mr. Wilson said: —

"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… 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."

In Maryland, Luther Martin, in the speech before referred to, says, speaking of this section: —

"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."

Mr. Martin thus gives the well-known history of the compromise involved in this clause: —

"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.

"This report was adopted by a majority of the Convention, but not without considerable opposition."

In the Virginia Convention, Mr. Madison said: —

"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 for ever; 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 meantime."

In the North Carolina Convention, Mr. Spaight, one of the framers of the Constitution, said —

"That there was a contest between the Northern and Southern States; that the Southern States, whose principal support depended on the labor of slaves, would not consent to the desire of the Northern States, to exclude the importation of slaves absolutely; that South Carolina and Georgia insisted on this clause, as they were now in want of hands to cultivate their lands; that in the course of twenty years they would be fully supplied; that the trade would be abolished then, and that in the meantime some tax or duty might be laid on."

In the South Carolina Convention, Hon. Rawlins Lowndes said: —

"In the first place, what cause was there for jealousy of our importing negroes? Why confine us to twenty years, or rather why limit us at all? For his part, he thought this trade could be justified on the principles of religion, humanity, and justice; for certainly to translate a set of human beings from a bad country to a better was fulfilling every part of these principles. But they don't like our slaves, because they have none themselves."

Gen. Charles C. Pinckney said: —

"By this settlement we have secured an unlimited importation of negroes for twenty years; nor is it declared that the importation shall be then stopped: it may be continued; we have a security that the general government can never emancipate them."

Restoration of Fugitive Slaves. (Const. Art. 4, sec. 2.)

In the Philadelphia Convention, Aug. 28, 1787, Art. 14 was taken up for consideration. This article read, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Gen. Pinckney was not satisfied with it. He seemed to wish some provision should be included in favor of property in slaves.

Art. 15 was as follows: —

"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."

This article 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.

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.– Mad. Papers, pp. 1447-8.

The next day, Aug. 29, Mr. Butler, to accomplish his purpose, moved to insert, after Art. 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.

After the phraseology had been somewhat altered, on Saturday, Sept. 15, 1787, in this clause (then Const. Art. 4, sec. 2) 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 one who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view.

In the Virginia Convention, Mr. Madison said: —

"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 exists. No power is given to the general government to interpose with respect to the property in slaves now held by the States."

In the North Carolina Convention, Mr. Iredell begged leave to explain the reason of this clause: —

"In some of the Northern States, they have emancipated all their slaves. If any of our slaves," said he, "go there and remain there a certain time, they would, by the present laws, be entitled to their freedom, so that their masters could not get them again. This would be extremely prejudicial to the inhabitants of the Southern States; and, to prevent it, this clause is inserted in the Constitution. Though the word slave be not mentioned, this is the meaning of it. The Northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned."

Gen. Pinckney, says Mr. Madison, was not satisfied with Art. 14, and "seemed to wish some provision should be included in favor of property in slaves." He thus, in the South Carolina Convention, expresses his satisfaction at this article of the Constitution: —

"We have obtained a right to recover our slaves, in whatever part of America they may take refuge, which is a right we had not before. In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could; but, on the whole, I do not think them bad."(!)

Suppression of Slave Insurrections. (Const. Art. 1, sec. 8; Art. 4, sec. 4.)

Luther Martin, in the speech before alluded to, used the following language: —

"It was further urged, that, by this system of government, every State is to be protected both from foreign invasion and from domestic insurrections: from this consideration, it was of the utmost importance it should have a power to restrain the importation of slaves, since, in proportion as the number of slaves are increased in any State, in the same proportion the State is weakened and exposed to foreign invasion or domestic insurrection, and by so much less will it be able to protect itself against either, and therefore will by so much the more want aid from, and be a burden to, the Union."

In the Virginia Convention, Mr. George Nicholas said: —

"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. Madison, respecting these clauses, says: —

"On application of the legislature or executive, as the case may be, the militia of the other States are to be called to suppress domestic insurrections. Does this bar the States from calling forth their own militia? No; but it gives them a supplementary security to suppress insurrections and domestic violence."

CHAPTER XIV.
THE CONSTITUTION ACCORDING TO THE PRACTICE OF THE GOVERNMENT

Uniform practice under a law is one of the highest proofs of the meaning of that law

Apportionment of Representatives. (Const. Art. 1, sec. 2.)

The Constitution (Art. 1, sec. 2, par. 3) provides that the enumeration of the people of the United States (upon which the apportionment of representatives and direct taxes was to be made) "shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct."

On the 1st of March, 1790, George Washington, who had been president of the Convention which framed the Constitution, approved "an Act providing for the enumeration of the inhabitants of the United States." The first Congress ever assembled, and the first President ever elected, under the Constitution, under the sanction of their respective oaths "to support the Constitution," by this Act expressed their deliberate judgment as to the true meaning of the people of the United States in adopting this section of the Constitution. What, in their judgment, was such meaning?

These extracts from the Act will suffice (Act 1790, chap. 29): —

Sec. 1: "Be it enacted, &c. That the marshals of the several districts of the United States shall be, and they are hereby, authorized and required to cause the number of the inhabitants within their respective districts to be taken, omitting, in such enumeration, Indians not taxed, and distinguishing free persons, including those bound to service for a term of years, from all others; distinguishing also the sexes and colors of free persons, and the free males of sixteen years and upwards from those under that age: for effecting which purpose, the marshals shall have power to appoint as many assistants within their respective districts as to them shall appear necessary, assigning to each assistant a certain division of his district," &c.

These assistants were obliged to transmit to the marshals, returns in manner following: —

"The number of persons within my division, consisting of – , appears in a schedule hereunto annexed, subscribed by me, this – day of – 179 .

A. B. Assistant to the Marshal of – "

That is, the enumeration directed to be made, and upon the basis of which the constitutional apportionment of representatives and direct taxes was to be made, distinguished only between free persons and slaves. Congress and the President, under the sanction of their oaths, united in the expression of their deliberate judgment, that the people of the United States, by the expression (Art. 1, sec. 2) "three-fifths of all other persons," intended "three-fifths of the slaves," because, in passing this Act, they declare that all other persons not free within the meaning of this section are slaves.

The second Congress, at its first session, passed "An Act for apportioning representatives among the several States, according to the first enumeration" (Stat. 1792, c. 23). The language of the statute is as follows: —

Sec. 1: "Be it enacted, &c. That from and after the third day of March, one thousand seven hundred and ninety-three, the House of Representatives shall be composed of members elected agreeably to a ratio of one member for every thirty-three thousand persons in each State, computed according to the rule prescribed by the Constitution, that is to say, within the State of New Hampshire, four," &c. &c.

That is, the second Congress, upon an enumeration distinguishing only freemen from slaves, undertake to apportion representatives among the States according to the rule laid down in the Constitution, viz. by adding to the whole number of free persons "three-fifths of the slaves."

This interpretation, by the first and second Congress, has never been varied from. In every census which has since been taken, the only distinction sanctioned has been between freemen and slaves; and, on every occasion of apportioning representatives, according the representative or federal number, such number has been invariably determined by adding to the whole number of free persons, three-fifths of the slaves. If this, the pro-slavery, interpretation of this section of the Constitution is not right, then, since March 3, 1793, there has not been a single House of Representatives constitutionally elected, or a single statute or resolve constitutionally passed! Who is ready to make this admission?

Permission of the African Slave-trade. (Const. Art. 1, sec. 9.)

On the 13th of May 1789, in Congress, —

"Mr. Parker (of Va.) moved to insert a clause in the bill, imposing a duty on the importation of slaves of ten dollars each person. He was sorry that the Constitution prevented Congress from prohibiting the importation altogether; he thought it a defect in that instrument that it allowed of such actions; it was contrary to the revolution principles, and ought not to be permitted; but, as he could not do all the good he desired, he was willing to do what lay in his power.

· · · · · ·

"Mr. Sherman (of Ct.) approved of the object of the motion; but he did not think this bill was proper to embrace the subject. He could not reconcile himself to the insertion of human beings, as an article of duty, among goods, wares, and merchandise. He hoped it would be withdrawn for the present, and taken up hereafter as an independent subject.

· · · · · ·

"Mr. Schureman (of N. J.) hoped the gentleman would withdraw his motion, because the present was not the time or place for introducing the business; he thought it had better be brought forward in the House, as a distinct proposition.

· · · · · ·

"Mr. Madison (of Va.): I cannot concur with gentlemen who think the present an improper time or place to enter into a discussion of the proposed motion. If it is taken up in a separate view, we shall do the same thing, at a greater expense of time…

"I conceive the Constitution, in this particular, was formed in order that the government, whilst it was restrained from laying a total prohibition, might be able to give some testimony of the sense of America with respect to the African trade. We have liberty to impose a tax or duty upon the importation of such persons as any of the States now existing shall think proper to admit; and this liberty was granted, I presume, upon two considerations: the first was, that, until the time arrived when they might abolish the importation of slaves, they might have an opportunity of evidencing their sentiments on the policy and humanity of such a trade; the other was, that they might be taxed in due proportion with other articles imported; for, if the possessor will consider them as property, of course they are of value, and ought to be paid for."

After a very considerable discussion, in which this section of the Constitution was referred to by various members, and the constitutionality of Mr. Parker's motion admitted, with the advice of Mr. Madison his colleague, Mr. Parker consented to withdraw his motion.

In 1794, "An Act to prohibit the carrying on the slave-trade from the United States to any foreign place or country" was passed (Stat. 1794, c. 11). In 1800, an Act in addition to the last was passed (Stat. 1800, c. 51). That both these laws were framed with reference to this section of the Constitution is apparent, because the latter Act expressly refers to it. Sec. 6 reads thus, "That nothing in this Act contained shall be construed to authorize the bringing into either of the United States any person or persons, the importation of whom is, by the existing laws of such State, prohibited." In 1803 (Stat. 1803, c. 63) was passed "An Act to prevent the importation of certain persons into certain States, where, by the laws thereof, their admission is prohibited."

Sec. 1: "Be it enacted, &c. That, from and after the first day of April next, no master or captain of any ship or vessel, or any other person, shall import or bring, or cause to be imported or brought, any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States, or seamen, natives of countries beyond the Cape of Good Hope, into any port or place of the United States, which port or place shall be situated in any State which by law has prohibited, or shall prohibit, the admission or importation of such negro, mulatto, or other person of color," &c. &c.

This Act also is most manifestly framed upon this section of the Constitution. It renders illegal the importation of any negro, mulatto, or person of color, into States prohibiting such importation, unless such negro, &c. is a native, citizen, or registered seaman of the United States, or native of countries beyond the Cape of Good Hope; that is, it renders illegal the importation of African negroes into any State whose laws prohibit such importation. And, as no African negro has yet been imported as a free laborer, this Act was directed against the African slave-trade.

And, not to multiply proof, the importation of persons is not to be prohibited by Congress prior to 1808. On the 2d day of March, 1807, President Jefferson approved (Stat. 1807, c. 77) "An Act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the first day of January, in the year of our Lord one thousand eight hundred and eight." That is, at the very earliest day allowed by Const. Art. 1, sec. 9, for the passage by Congress of an Act prohibiting the importation of persons, a law is passed totally prohibiting the importation of slaves.

Restoration of Fugitive Slaves. (Const. Art. 4, sec. 2.)

On the 12th day of February, 1793 (Stat. 1793, chap. 7), there was approved "An Act respecting fugitives from justice, and persons escaping from the service of their masters." This is the law which, for over half a century, has prescribed the modes in which a runaway slave may be retaken. It is what is now called "the infamous law of '93." Thousands of runaway slaves have owed their return to their happy condition to the beneficent operation of this law, obviously framed, as it is, with an eye to this constitutional provision.

Sec. 3 provides that, —

"When a person held to labor in any of the United States, or in either of the territories on the north-west or south of the river Ohio, under the laws thereof, shall escape into any other of the said States or territory, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made; and, upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit, taken before and certified by a magistrate of any such State or territory, that the person so seized or arrested doth, under the laws of the State or territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labor to the State or territory from which he or she fled."

Suppression of Slave Insurrections. (Const. Art. 1, sec. 8; Art. 4, sec. 4.)

"An Act to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions," was approved May 2, 1792 (Act Const. 1792, chap. 28). Section first provides that, "In case of an insurrection in any State against the government thereof, it shall be lawful for the President of the United States, on application of the legislature of such State, or of the executive (when the legislature cannot be convened), to call forth such number of the militia of any other State or States as may be applied for, or as he may judge sufficient to suppress such insurrection." Precisely the same language is made use of in Stat. 1795, c. 101. By Act approved March 3, 1807 (Stat. 1807, c. 94), the President is authorized "in all cases of insurrection," "when it is lawful for him to call forth the militia for the purpose of suppressing the same," "to employ for the same purpose such part of the land or naval force of the United States as shall be judged necessary."