History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 23

I have already referred to all the known proceedings in the Convention on this subject, and have stated to what extent those proceedings justify the opinion that the Const.i.tution could not have been formed without this provision.[372] But there is higher evidence both of its necessity and its propriety than anything that may have been said by individuals or delegations. The States were about to establish a more perfect Union, under a peculiar form of national government, the effect of which would necessarily bring them into closer relations with each other, multiplying greatly the means and opportunities of intercourse, and enabling them to act on each other's internal condition with an influence that would be nearly irresistible, unless it should be arrested by const.i.tutional barriers. Among the features of their internal condition, the relation of master and servant, or the local inst.i.tution of servitude, was one that must either be placed under national cognizance, or be left exclusively to the local authority of each State. There was no middle or debatable ground, which it could with safety be suffered to occupy. The African race, although scattered throughout all of the States, was placed in very different circ.u.mstances in different parts of the country. There could have been no national legislation with respect to that race, concerning the time or mode of emanc.i.p.ation, the tenure of the master's right, or the treatment of the slave, that would not have been forced to adapt itself to an almost endless variety of circ.u.mstances in different localities. At the same time, it was one of the fundamental principles on which the whole Const.i.tution was proposed to be founded, that, where the national authority could not furnish a uniform rule, its legislative power was not to extend.

Whatever required one rule in Ma.s.sachusetts and another rule in Virginia, for the exigencies of society, was necessarily left to the separate authority of the respective States. It was upon matters on which the States could not legislate alike, but on which the national power could furnish a safe and advantageous uniform rule, that the want of a national Const.i.tution was felt, and for these alone was its legislative power to be created.

We may suppose, then, that the framers of the Const.i.tution had sought to bring the relation of master and servant, or the condition of the African race, within the States, under the cognizance of national legislation; and we may imagine, for the purposes of the argument, that consent had been given by every one of the States. The power must have remained dormant, or its exercise would have been positively mischievous. It never could have been exercised beneficially for either of the two races; not only because it could not have followed any uniform system, but because the confusions and jealousies which must have attended any attempt to legislate specially, must either have totally obstructed the power, or must have made its exercise absolutely pernicious. These consequences, which the least reflection will reveal, may serve to show us, far better than any declarations or debates, why the framers of the Const.i.tution studiously avoided acquiring any power over the inst.i.tution of slavery in the States;--why the representatives of one cla.s.s of States could not have consented to give, and the representatives of another cla.s.s could never have desired to obtain, such a power for the national Const.i.tution.

But it may be asked,--and the question is often prompted by a feeling of pity towards individual cases of hards.h.i.+p,--Why did not the framers of the Const.i.tution content themselves with the negative position, which leaves the inst.i.tution of slavery to the uncontrolled direction of every State in which it is found? Why did they establish a rule that obtains nowhere else among distinct communities, and require that the fugitive from this relation of a purely local character, who has committed no crime, and has fled only to acquire a natural liberty, shall be restored to the dominion of the local law which declares him to be a slave? Why should the States which had abolished, or were about to abolish, this relation, consent to the use of force within their own territories, for the purpose of upholding the relation in other States? These questions are pertinent to the estimate which mankind may be called upon to form concerning the provisions of our national Const.i.tution, and they admit of an answer.

The most material answer to them is, that, without some stipulation on the part of the States where slavery was not to exist that their free territory should not be made the means of a practical interference with the relation in other States, the mere concession of the abstract principle that slavery was to be exclusively under the control of State authority would have been of no real value to any one of the States, or to any of their inhabitants, of either race. But some active security for this principle was of the utmost importance, not merely as a concession which would secure the formation of the new Union, but as a means to secure the beneficent working of the Const.i.tution after its acceptance had been obtained. It was as important to the black race as it was to the whites; for it is not to be doubted, that the continuance of a division into separate States, and the firm maintenance of an exclusive local authority over the domestic relations of their inhabitants, have been the cause, under the Divine Providence, of a far higher civilization, and consequently of a far better condition of the subjected race, than could have been attained in the same localities if the States had been in all respects resolved into one consolidated republic.

Let the reader spread before him the map of the thirteen republics of 1787, and mark upon each of them the relative numbers of their white and colored inhabitants, and then efface the boundaries of the States.

Let him imagine all legislative power, all the superintending care of government, withdrawn into a central authority, whose seat must have been somewhere near the centre of the free white population. Let him observe how that population must have tended away from the regions where the labor of slaves would be most productive, and how dense the slave populations must there have become. All that now const.i.tutes the pride of men in their separate State, that induces to residence and makes it the home of their affections, would have pa.s.sed away; and at the same time, vast tracts of wonderful fertility must have retained the African, and with him scarcely any white man but the speculator, the overseer, and a solitary tradesman. Into such regions as those, the national authority could not have penetrated with success.

Legislation would have wanted the necessary machinery, by which to reach and elevate the condition of society at such remote extremities from the centre. A more than Russian despotism would not have sufficed to carry the authority of government and the restraints of law into communities so depopulated of freemen, so filled with slaves, and so far removed from the seat of power.

But now let the same map be again unfolded, with all the lines that mark the distinct sovereignties of the States. In each of them there is a complete and efficient government. Each has its history, unbroken since the first settlers laid the foundations of a State. In each there is a centre of civilization, a source of law, and the public conscience of an organized self-governing community. Each of them can act, and does act, upon the condition of the African race within its own limits, according to its own judgment of the exigencies of the case; and it is a fact capable of easy verification, that, in the progress of three quarters of a century, this local power has effected for that race what no national legislature could have accomplished.

For, if we look back to the period when the Const.i.tution of the United States was adopted, and suppose it to have acquired the means of acting on the inst.i.tution of slavery within the States, we shall see that, if the national authority had approached the subject of emanc.i.p.ation at all, it must have applied the same rule in South Carolina as in Pennsylvania, and at the same time. But the emanc.i.p.ation of the half a million of slaves held in widely different proportions in the various subdivisions of the country, or of their still more numerous descendants, by a single and uniform measure comprehending them all, would at no time since the Const.i.tution was adopted have been a merciful or defensible act. Nothing could have remained, therefore, for the national power to do, but to attempt such legislation as might tend to regulate and ameliorate the condition of servitude; and such legislation must have been wholly ineffectual, and would soon have been abandoned, or been superseded by schemes that must have increased the evils which they aimed to remove.

In thus placing a high value upon the exclusive power of the separate States over this the most delicate and embarra.s.sing of all the social problems involved in their destiny, I have not forgotten that, since the adoption of the national Const.i.tution, nine slave States have been added to the Union, and that the slaves have increased to more than three millions. This increase, however, has not been in a greater _ratio_ than that of the white population, nor greater than it must have been under any form of polity which the thirteen original States might have seen fit to adopt in the year 1787, unless that polity had had a direct tendency to restrain the growth of the country, and to prevent the settlement of new regions.[373] As it is, it is to be remembered that, wherever the inst.i.tution of slavery has gone, there has gone with it the system of State government, the power and organization of a distinct community, and consequently a better civilization than could have been the lot of distant provinces of a great empire, or distant territories of a consolidated republic.

These considerations will account for that apparent inconsistency which has sometimes attracted the attention of those who view the inst.i.tutions of the United States from a distance, and without a sufficient knowledge of the circ.u.mstances in which they originated.

It has been occasionally made a matter of reproach, that a people who fought for political and personal freedom, who proclaimed in their most solemn papers the natural rights of man, and who proceeded to form a const.i.tution of government that would best secure the blessings of liberty to themselves and their posterity, should have left in their borders certain men from whom those rights and blessings are withheld. But in truth the condition of the African slaves was neither forgotten nor disregarded by the generation who established the Const.i.tution of the United States; and it was dealt with in the best and the only mode consistent with the facts and with their welfare.

The Const.i.tution of the United States does not purport to secure the blessings of liberty to all men within the limits of the Union, but to the people who established it, and their posterity. It could not have done more; for the slaveholding States could not, and ought not, to have entered a Union which would have conferred freedom upon men incapable of receiving it, or which would have required those States to surrender to a central and insufficient power that trust of custody and care which, in the providence of G.o.d, had been cast upon their more effectual local authority. The reproach to which they would have been justly liable would have been that which would have followed a desertion of the duty they owed to those who could not have cared for themselves, and whose fate would have been made infinitely worse by a consolidation of all government into a single community, or by an attempt to extend the principles of liberty to all men. The case is reduced, therefore, to the single question, whether the people of the United States should have foregone the blessings of a free republican government, because they were obliged by circ.u.mstances to limit the application of the maxims of liberty on which it rests. On this question, they may challenge the judgment of the world.

FOOTNOTES:

[359] See and compare Art. IV. of the Confederation and Art. IV. -- 2 of the Const.i.tution.

[360] So far as the proceedings in the Convention are to be regarded as a guide to construction, it appears clearly that the clause which empowers Congress to "prescribe the manner in which such acts, records, and proceedings shall be proved, _and the effect thereof_,"

was intended to give a power to declare the effect of the acts, records, and judicial proceedings of any State, when offered in evidence in another State, as well as to prescribe the mode of proving them. See Elliot, V. 487, 488, 503, 504. See also a learned discussion on this clause in Story's Commentaries, ---- 1302-1313.

[361] Elliot, V. 487.

[362] July 23d. Elliot, V. 357.

[363] Art. XIV. of the report of the committee of detail.

[364] These are the words of Mr. Madison's Minutes. Elliot, V. 487.

This was on the 26th of August.

[365] Madison, _ut supra_. The motion was made by Butler and Pinckney, according to Mr. Madison.

[366] By Wilson.

[367] By Sherman.

[368] Madison, _ut supra_. August 28.

[369] The reader who will consult a paper in the fourth volume of the Collections of the Ma.s.sachusetts Historical Society (p. 194), written by Dr. Belknap, in 1795, will find that slavery, in the sense in which the term is now commonly understood, existed in Ma.s.sachusetts Bay as early as 1630. The proof of it consists,--1. In the provisions of the colonial laws and ordinances, which recognize and regulate a relation very different from that of service for hire. On this subject, the early colonists of Ma.s.sachusetts held and practised the law of Moses.

They regarded it as lawful to _buy_ and _sell_ "slaves taken in lawful war," or reduced to servitude by judicial sentence, and placed them under the same privileges as those given by the Mosaic law. But they punished man-_stealing_ capitally, re-enacting expressly the 16th verse of the 21st chapter of Exodus; and when there were any negroes in their jurisdiction who had been stolen, or "fraudulently" acquired in Africa, they endeavored to send them back again. 2. In the actual presence of negro slaves, brought from Africa, who had been "lawfully"

acquired, that is, by fair purchase from those who held them as prisoners of war. These existed to some extent in the Colony in 1638, and were numerous in 1673; and of course were included in all the legislation of that period respecting service, being sometimes described as "slaves," and sometimes by the more general and comprehensive term of "servants."--Slavery by judicial sentence was inflicted for no higher crimes than theft and burglary. Thus at a Quarter Court holden at Boston the 4th day of the 10th month, 1638, "John Hazlewood being found guilty of severall thefts and breaking into severall houses, was censured to be severely whipped and delivered up a _slave_ to whom the Court shall appoint." (Shurtleff's Edition of Records of Ma.s.sachusetts, I. 246.) Many of the Indians taken prisoners in King Philip's war, who had formerly submitted to the Colonial government and had been called "Praying Indians" from their supposed conversion to Christianity, were adjudged guilty of "rebellion," and were sold into slavery in foreign countries. Dr.

Belknap says that some of them found their way back again, and took a severe revenge on the English in a subsequent war. (Hist. Soc. Coll.

_ut supra_.)

[370] Mr. Madison stated in the Convention of Virginia in which the Const.i.tution was ratified, that "this clause was expressly inserted, to enable owners of slaves to reclaim them." (Elliot's Debates, III.

453.)

[371] August 29. Elliot, V. 492.

[372] I am not aware of any more positive evidence than that above given in the text, that this clause of the Const.i.tution was expressly made in the Convention a condition of a.s.sent by any of the States.

[373] In 1790, the slaves numbered 697,897, and the whites 3,172,464.

In 1850, the slaves had increased to 3,204,313, and the whites to 19,533,068.

CHAPTER XVI.

REPORT OF THE COMMITTEE OF DETAIL, CONCLUDED.--GUARANTY OF REPUBLICAN GOVERNMENT AND INTERNAL TRANQUILLITY.--OATH TO SUPPORT THE CONSt.i.tUTION.--MODE OF AMENDMENT.--RATIFICATION AND ESTABLISHMENT OF THE CONSt.i.tUTION.--SIGNING BY THE MEMBERS OF THE CONVENTION.

The power and duty of the United States to guarantee a republican form of government to each State, and to protect each State against invasion and domestic violence, had been declared by a resolution, the general purpose of which has been already described. It should be said here, however, that the objects of such a provision were two; first, to prevent the establishment in any State of any form of government not essentially republican in its character, whether by the action of a minority or of a majority of the inhabitants; second, to protect the State against invasion from without, and against every form of domestic violence.[374] When the committee of detail came to give effect to the resolution, they prepared an article, which made it the duty of the United States to guarantee to each State a republican form of government, and to protect each State against invasion, without any application from its authorities; and to protect the State against domestic violence, on the application of its legislature.[375] No change was made by the Convention in the substance of this article, excepting to provide that the application, in a case of domestic violence, may be made by the executive of the State, when the legislature cannot be convened.[376]

It now remains for me to state what appears to have been the meaning of the framers of the Const.i.tution, embraced in these provisions. It is apparent, then, from all the proceedings and discussions on this subject, that, by guaranteeing a republican form of government, it was not intended to maintain the existing const.i.tutions of the States against all changes. This would have been to exercise a control over the sovereignty of the people of a State, inconsistent with the nature and purposes of the Union. The people must be left entirely free to change their fundamental law, at their own pleasure, subject only to the condition, that they continue the republican form of government.

The question arises then, What is that form? Does it imply the existence of some organic law, establis.h.i.+ng the departments of a government, and prescribing their powers, or does it admit of a form of the body politic under which the public will may be declared from time to time, either with or without the agency of any established organs or representatives? Is it competent to a State to abolish altogether that body of its fundamental law which we call its Const.i.tution, and to proceed as a mere democracy, enacting, expounding, and executing laws by the direct action of the people, and without the intervention of any representative system const.i.tuting what is known as a government?

The Const.i.tution of the United States a.s.sumes, in so many of its provisions, that the States will possess organized governments, in which legislative, executive, and judicial departments will be known and established, that it must be taken for granted that the existence of such agents of the public will is a necessary feature of a State government, within the meaning of this clause. No State could partic.i.p.ate in the government of the Union, without at least two of these agents, namely, a legislature and an executive; for the people of a State, acting in their primary capacity, could not appoint a Senator of the United States; nor fill a vacancy in the office of Senator; nor appoint Electors of the President of the United States, without the previous designation by a legislature of the mode in which such Electors were to be chosen; nor apply to the government of the United States to protect them against "domestic violence," through any other agent than the legislature or the executive of the State. It is manifest, therefore, that each State must have a government, containing at least these distinct departments; and whether this government is organized periodically, under mere laws perpetually re-enacted, and subject to perpetual changes without reference to forms, or under standing and fundamental laws, changeable only in a prescribed form, and being so far what is called a const.i.tution, it is apparent that there must be a "form of government" possessed of these distinct agencies.

There must be, moreover, not only this "form of government," but it must be a "republican" form; and in order to determine the sense in which this term qualifies the nature of the government in other respects besides those already referred to, it is necessary to take into view the previous history of American political inst.i.tutions, because that history shows what is meant, in the American sense, by a "republican" government.

History, then, establishes the fact, that, in the American system of government, the people are regarded as the sole original source of all political authority; that all legitimate government must rest upon their will. But it also teaches that the will of the people is to be exercised through representative forms. For even in the exercise of original suffrage, which has never been universal in any of the States of the Union, and in the bestowal of power upon particular organs, those who are regarded as competent to express the will of society are, in that expression, deemed to represent all its members; and those who, in the distribution of political functions, exercise the sovereignty of the people, so far as it has been thus imparted to them, exercise a representative function, to which they are appointed, directly or indirectly, by popular suffrage, that may be more or less restricted, according to the public will. It may be said, therefore, with strictness, that in the American system a republican government is one based on the right of the people to govern themselves, but requiring that right to be exercised through public organs of a representative character; and these organs const.i.tute the government.

How much or how little power shall be imparted to this government, what restrictions shall be imposed upon it, and what the precise functions of its several departments shall be, with respect to the internal concerns of the State, the Const.i.tution of the United States leaves untouched, except in a few particulars. It merely declares that a government having the essential characteristics of an American republican system shall be guaranteed by the United States; that is to say, that no other shall be permitted to be established.

The provision by which the State is protected against domestic violence was necessary to complete the republican character of the system intended to be upheld. The Const.i.tution of the United States a.s.sumes that the governments of the States, existing when it goes into operation, are rightfully in the exercise of the authority of the State, and will so continue until they are changed. But it means that no change shall be made by force, by public commotion, or by setting aside the authority of the existing government. It recognizes the right of that government to be protected against domestic violence; in which expression is to be included every species of force directed against that government, excepting the will of the people operating to change it through the forms of const.i.tutional action.

The next topic on which the Convention was required to act was the question whether the Const.i.tution should be made capable of amendment, and in what mode amendments were to be proposed and adopted. The Confederation, from its nature as a league between States otherwise independent of each other, was made incapable of alteration excepting by the unanimous consent of the States. It affords a striking ill.u.s.tration of the different character of the government established by the Const.i.tution, that a mode was devised by which changes in the organic law could become obligatory upon all the States, by the action of a less number than the whole.

The frame of government which the members of the Convention were endeavoring to establish, if once adopted, was to endure, as a continuing power, indefinitely; and that it might, as far as possible, be placed beyond the danger of destruction, it was necessary to make it subject to such peaceful changes as experience might render proper, and which, by being made capable of introduction by the organic law itself, would preserve the ident.i.ty of the government. The existence and operation of a prescribed method of changing particular features of a government mark the line between amendment and revolution, and render a resort to the latter, for the purpose of melioration or reform, save in extreme cases of oppression, unnecessary. According to our American theory of government, revolution and amendment both rest upon the doctrine, that the people are the source of all political power, and each of them is the exercise of an ultimate right. But this right is exercised, in the process of amendment, in a prescribed form, which preserves the continuity of the existing government, and changes only such of its fundamental rules as require revision, without the destruction of any public or private rights that may have become vested under the former rule. Revolution, on the contrary, proceeds without form, is the violent disruption of the obligations resting on the authority of the former government, and terminates its existence often, without saving any of the rights which may have grown up under it. The question, therefore, whether the Const.i.tution should be made capable of amendment, was identical with the question whether some mode of amending it should be prescribed in the instrument itself, since, without an ascertained and limited method of proceeding, all change becomes, in effect, revolution; and this was accordingly, in substance, the same as the question whether revolution should be the only method by which the American people could ever modify their system of government, when in the progress of time changes might become indispensable.

It was originally proposed in the Convention, that provision should be made for amending the Const.i.tution, without requiring the a.s.sent of the national legislature.[377] But this was justly regarded as a very important question, and the Convention came to no other decision, when the committee of detail were instructed, than to declare that provision ought to be made for amending the Const.i.tution whenever it should seem necessary.[378] The mode selected by the committee, and embraced in the first draft of the instrument, was to have a convention called by the Congress, when applied for by the legislatures of two thirds of the States; but they did not declare whether the legislatures were to propose amendments and the convention was to adopt them, or whether the convention was both to propose and adopt them, or only to propose them for adoption by some other body or bodies not specified. There lay, therefore, at the basis of this whole subject, the very grave question whether there should ever be another national convention, to act in any manner upon or in reference to the national Const.i.tution, after its adoption, and if so, what its functions and authority were to be. There would follow, also, the further question, whether this should be the sole method in which the Const.i.tution should be made capable of amendment. Several reasons concurred to render it highly inexpedient to make a resort to a convention the sole method of reaching amendments, and we can now see that the decision that was made on this subject was a wise one. It was a rare combination of circ.u.mstances that gave to the first national Convention its success. The war of the Revolution, and the exigencies which it caused, had produced a cla.s.s of men, possessing an influence, as well as qualifications for the duty a.s.signed to them, that would not be likely to be again witnessed. Of these men, Was.h.i.+ngton was the head; and no second Was.h.i.+ngton could be looked for. The peculiar crisis, too, occasioned by the total failure of the Confederation, notwithstanding the apparent fitness and actual necessity of that government at the time of its formation, could never occur again.

There were, moreover, but thirteen States in the confederacy, nearly all of which dated their settlement and their existence as political communities from about the same period, and all had pa.s.sed through the same revolutionary history. But the number of the States was evidently destined to be greatly increased, and the new members of the Union would also be likely to be very different in character from the old States. It was not probable, therefore, that the time would ever arrive when the people of the United States would feel that another national convention, for the purpose of acting on the national Const.i.tution, would be safe or practicable. Still, it would not have been proper to have excluded the possibility of a resort to this method of amendment; since the national legislature might itself be interested to perpetuate abuses springing from defects in the Const.i.tution, and to incur the hazards attending a convention might become a far less evil than the continuance of such abuses, or the failure to make the necessary reforms.

But it was indispensable that the precise functions and authority of such a convention should be defined, lest its action might result in revolution. The method of amendment proposed by the committee of detail did not enable the Congress to call a convention on their own motion, and did not prescribe the action of such a body, or provide any mode in which the amendments proposed by it should be adopted.

Hamilton and Madison both opposed this plan;--the former, because it was inadequate, and because he considered it desirable that a much easier method should be devised for remedying the defects that would become apparent in the new system; the latter, on account of the vagueness of the plan itself. Accordingly, Mr. Madison brought forward, as a subst.i.tute, a method of proceeding, which, with some modifications, became what is now the fifth article of the Const.i.tution; namely, that the Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments; or, on the application of the legislatures of two thirds of the States, shall call a convention for proposing amendments. In either case, the amendments proposed are to become valid as part of the Const.i.tution, when ratified by the legislatures of three fourths of the States, or by conventions in three fourths of the States, as the one or the other mode of ratification may be proposed by the Congress.[379]

But when this provision had been agreed upon, the grave question arose, whether the power of amendment was to be subjected to any limitations. There were two objects, in respect to which, as we have more than once had occasion to see, different cla.s.ses of the States felt great jealousy. One of them had been covered by the stipulations that the States should not be prohibited before the year 1808 from admitting further importations of slaves, and that no capitation or other direct tax should be laid unless in proportion to the census or enumeration of the inhabitants of the States, in which three fifths only of the slaves were included.[380] The other was the equality of representation in the Senate, so long and at length so successfully contended for by the smaller States.[381] At the instance of Mr.

Rutledge of South Carolina, a proviso was added, which forbade any amendment before the year 1808 affecting in any manner the clauses relating to the slave-trade and the capitation or other direct taxes.[382] This proviso having now become inoperative, those clauses are, like others, subject to amendment. At the instance of Mr. Sherman of Connecticut, a restriction that is of perpetual force was placed upon the power of amendment, which prevents each State from being deprived of its equality of representation in the Senate, without its consent.[383]

The oath or affirmation to support the Const.i.tution was provided for by the committee of detail, in accordance with the resolution directing that it should be taken by the members of both houses of Congress and of the State legislatures, and by all executive and judicial officers of the United States and of the several States; and for the purpose of for ever preventing any connection between church and state, and any scrutiny into men's religious opinions, the Convention unanimously added the clause, that "no religious test shall ever be required as a qualification to any office or public trust under the United States."[384]