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_."