A Report of the Debates and Proceedings in the Secret Sessions of the Conference Part 27

YEAS.--Maryland, Virginia, and South Carolina--3.

NAYS.--New Hamps.h.i.+re, Ma.s.sachusetts, Rhode Island, Connecticut, New York, and Pennsylvania--6.

This was under the Confederation articles, which provided that the vote on all questions should be taken by States, each State casting one vote; that no proposition could be adopted without the vote of seven States in favor of it, and that the vote of no State could be counted unless two members, at least, were present. As there were but six States in favor of the proposition to prohibit slavery after 1800, it was stricken out.

There was but one member present from New Jersey, and the vote of that State was not counted. The member present voted for Mr. JEFFERSON'S proposition. Another vote from that State would have made the required number, and carried the measure.

In North Carolina, WILLIAMSON voted for prohibition, and SPEIGHT against it. One more vote from that State would have made seven States for the proposition, and it would have been carried.

JEFFERSON voted for his own proposition to prohibit; and if one of the other two members present from Virginia had voted with him, that, too, would have made the required number of seven States.

The vote North and South, by members, was in favor of prohibition: North, 14; South, 2--total, 16. Against prohibition, South, 7.

The majority was more than two-thirds; enough to carry it over an executive veto under the present Const.i.tution, and yet it was defeated. And this vote was given in favor of absolute and unconditional prohibition, and that alone, without the right of reclaiming fugitive slaves, or any proposition, or any expectation to confer it. Under the Confederation, no such right existed, nor was it agreed to till more than three years afterwards, and then with the greatest reluctance, and as a matter of compromise, as I will presently show.

Such was the action of the American Congress in 1784--a unanimous vote from the North, and two in nine from the South--in favor of excluding slavery forever after 1800, in all new States to be formed, in territory ceded or to be ceded, embracing Tennessee, Alabama, and Mississippi, in the extreme South. Nothing can be clearer than that the interdiction was to apply to all such States, and to const.i.tute a fundamental Const.i.tution between them and the original States, unalterable without the consent of Congress. The new State was to be deprived of all power to admit slavery. This proposition was made and voted for by JEFFERSON. But how many votes would such a proposition receive in this Convention? Not many, I fear, even from the free States. My friend and colleague, though strongly anti-slavery, and earnestly devoted to freedom in the Territories, is afraid I shall commit Ma.s.sachusetts to this old Jeffersonian doctrine of no slavery, and no right to establish it in the new States.

From this time till July, 1787, the question of slavery in the Territories and new States remained open and unsettled. In 1785, RUFUS KING renewed Mr. JEFFERSON'S proposition to prohibit, and it was referred to a committee by the vote of eight States; but it never became a law, a few from the South always preventing it.

The Federal Convention to revise the old, or frame a new Const.i.tution, a.s.sembled in Philadelphia on the second Monday of May, 1787. And here let me read a single paragraph from a lecture by Mr.

TOOMBS, of Georgia, delivered in Boston in 1856. It is as follows:

"The history of the times and the debates in the Convention which framed the Const.i.tution, show that the whole subject of slavery was much considered by them, and perplexed them in the extreme, and that those provisions which relate to it were earnestly considered by the State Conventions which adopted it. Incipient legislation providing for emanc.i.p.ation had already been adopted by some of the States.

Ma.s.sachusetts had declared that slavery was extinguished by her Bill of Rights. The African slave trade had already been legislated against in many of the States, including Virginia, Maryland, and North Carolina, the largest slaveholding States. The public mind was unquestionably tending toward emanc.i.p.ation. This feeling displayed itself in the South as well as in the North. Some of the present slaveholding States thought that the power to abolish, not only the African slave trade, but slavery in the States, ought to be given to the Federal Government; and that the Const.i.tution did not take this shape, was made one of the most prominent objections to it by LUTHER MARTIN, a distinguished member of the Convention from Maryland; and Mr. MASON, of Virginia, was not far behind him in his emanc.i.p.ation principles. Mr. MADISON sympathized to a great extent. Anti-slavery feelings were extensively indulged in by many members of the Convention, both from the slaveholding and the non-slaveholding States."

Mr. MADISON'S testimony is important here. He was a member of the old Congress in New York, until the a.s.sembling of the Const.i.tutional Convention, and took his seat as a member of that body.

The History of the Ordinance of 1787, by Hon. EDWARD COLES, contains the following statement, as made to him by Mr. MADISON:

"The old Congress held its sessions, in 1787, in New York, while at the same time the Convention which framed the Const.i.tution of the United States held its sessions in Philadelphia. Many individuals were members of both bodies, and thus were enabled to know what was pa.s.sing in each--both sitting with closed doors and in secret sessions. The distracting question of slavery was agitating and r.e.t.a.r.ding the labors of both, and led to conferences of intercommunications of the members."

I quote this testimony now, to show that Conferences were held between the members of Congress and the Federal Convention, upon the subject of slavery. I shall quote farther from it on another point, after turning for a moment to the proceedings of Congress.

On the 9th July, 1787, the Convention having been in session about two months, the ordinance for the government of the Western Territory, which had been reported in a new draft on the 26th of the preceding April, and ordered to a third reading on the 10th May, and then postponed, was referred to a new committee, consisting of Messrs.

CARRINGTON, of Virginia; DANE, of Ma.s.sachusetts; R.H. LEE, of Virginia; KEAN, of North Carolina; and SMITH, of New York. Two days afterwards, July 11th, Mr. CARRINGTON reported what has since been known as the "Ordinance of 1787," with the exception of the 6th article of compact, prohibiting slavery. When it came up the next day, the 12th, for a second reading, Mr. DANE rose and stated as follows:

"In the committee, as ever before, since the day when JEFFERSON first introduced the proposal to prohibit slavery in the territory, it was found impossible to come to any arrangement; that the committee desired to report only so far as they were unanimous; that they, therefore, had omitted altogether the subject of slavery; but that it was understood that any member of the committee might, consistently with his having concurred in the report, move in the house to amend it in the particular of slavery. He therefore moved as an amendment, to add a prohibition of slavery in the following words:

"That there shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted."

And as a compromise, Mr. DAVIS proposed to add the following proviso:

"Provided always, that any person escaping into the same, from whom labor-service is lawfully claimed in any one of the original States, such fugitive may be lawfully retained and conveyed to the person claiming his or her labor or service as aforesaid."

This was at once unanimously accepted by the slave States. The next day, the 13th, the ordinance was pa.s.sed, every slave State present, viz.: Delaware, Virginia, North Carolina, South Carolina, and Georgia, and every member from those States voting for it. The same prohibition--which a large majority of the South had resisted when presented alone--was now, when accompanied with the proviso, unanimously agreed to.

Here was a sudden change. But the proviso giving the right of reclamation in the said territory, only partially explains it. For a full explanation we must turn again to the Convention. And the first thing is a further extract from Mr. MADISON, respecting a letter, before quoted, as follows:

"The distracting question of slavery was agitating and r.e.t.a.r.ding the labors of both bodies--Congress and the Convention; and led to conferences and intercommunications of the members, which resulted in a Compromise, by which the Northern, or anti-slavery portion of the country, agreed to incorporate into the ordinance and Const.i.tution, the provision to restore fugitive slaves; and this mutual and concurrent action was the cause of the similarity of the provisions contained in both, and had its influence in creating the great unanimity by which the ordinance pa.s.sed, and also in making the Const.i.tution the more acceptable to the slaveholders."

Mr. MADISON, also, in the Virginia Convention, urged the ratification of the Const.i.tution for the following among other reasons, viz.:

"At present, if any slave escape to any of those States where slaves are free, he becomes emanc.i.p.ated by their laws; for the laws of the States are uncharitable to one another in this respect. This clause was expressly inserted to enable owners of slaves to retain them. This is a better security than any that now exists."

General PINCKNEY, one of the delegates in the Federal Convention, from South Carolina, in a debate in the House of Representatives of that State on the Const.i.tution, said:

"We have obtained a right to remove our slaves in whatever part of America they may take refuge, which is a right we had not before. In short, considering all the circ.u.mstances, we have made the best terms we could, and on the whole I do not think them bad."

In the speech made by Mr. WEBSTER on the 7th of March, 1850, he remarked that:

"So far as we can now learn, there was a perfect concurrence of opinion between those respective bodies--the Congress and the Const.i.tution--and it resulted in this ordinance of 1787."

When Mr. WEBSTER had closed his speech, Mr. CALHOUN arose, and among other things, said:

"He, Mr. WEBSTER, states very correctly that the ordinance commenced under the old confederation; that Congress was sitting in New York at the time, while the Convention sat in Philadelphia; and that there was concert of action.... When the ordinance was pa.s.sed, as I have good reason to believe, it was upon a principle of compromise; first, that this ordinance should contain a provision similar to the one put in the Const.i.tution, with respect to fugitive slaves; and next, that it should be inserted in the Const.i.tution; and this was the compromise upon which the prohibition was inserted in the ordinance of 1787."

This agrees with Mr. MADISON. The idea he conveys could scarcely have been more identical with Mr. MADISON if he had used MADISON'S words.

When the Southern members of Congress voted unanimously for the 6th Article, or anti-slavery clause in the ordinance, with the proviso in respect to slaves escaping into the Territory, it was with the understanding that the Convention would insert a similar provision in the Const.i.tution respecting slaves escaping from one State to another; and this--its insertion in both--was the compromise upon which the prohibition was inserted in the ordinance. Such is the concurrent testimony of Mr. MADISON and Mr. CALHOUN.

We will now turn to the ordinance of 1787, and see whether it applies, as the one proposed by Mr. JEFFERSON in 1784 did, to the new States as well as to the Territories, and is the basis of State as well as Territorial Governments, and was so intended. It declares as follows:

"For extending the fundamental principles of civil and religions liberty, which form the basis whereon these republics, their laws and const.i.tutions, are erected; to fix and establish these principles as the basis of all laws, const.i.tutions, and governments, which forever hereafter shall be formed in the said Territory; to provide also for the establishment of States and permanent governments therein, and for their admission to a share in the Federal councils, on an equal footing with the original States, at as early periods as may be consistent with the general interest.

"It is hereby ordained and declared by the authority aforesaid: That the following articles shall be considered as articles of compact between the original States and the people and States in the said Territory, and forever remain unalterable, unless by the common consent."

Then follows six articles of compact. Part of the fifth and the sixth are in these words:

"ART. 5.... Whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever; and shall be at liberty to form a permanent Const.i.tution and State Government; _provided_ the Const.i.tutional Government, so to be formed, shall be republican and in conformity to the principles contained in these articles."

"ART. 6. There shall be neither slavery nor involuntary servitude in the said Territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted; _Provided, always_, That any person escaping into the same from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid."

Such is so much of the ordinance as bears directly upon the point I am discussing. And the Convention, as if for the very purpose of giving the unequivocal sanction of the Const.i.tution and of the country to this compromise, and of establis.h.i.+ng it as the permanent policy of the Government, expressly provided that the "engagements entered into before the adoption of this Const.i.tution shall be as valid against the United States under this Const.i.tution, as under the Confederation."

This ordinance, then, which was an unalterable compact, prohibiting slavery, and fixing and establis.h.i.+ng freedom as the basis of all laws, const.i.tutions, and governments in the Territory forever--State Const.i.tutions and Governments of course included--was made valid by the Const.i.tution itself. And on this point I refer to the highest Southern authority, the late Judge BERRIEN, who was thoroughly pro-slavery in his views, and should certainly be ranked among the ablest lawyers and statesmen Georgia has ever produced, who spoke to this precise point during the compromise discussion in the United States Senate in 1850, as follows:

"Validity was given to their act by the clause in the Const.i.tution, which declares that contracts and engagements entered into by the Government of the Confederation, should be obligatory upon the Government of the United States established by the Const.i.tution."

It is the "act" of Congress in pa.s.sing the ordinance referred to here.

This being so, it was the same in effect as though the ordinance had been written word for word in the Const.i.tution itself. A contract can be made valid, only by making it binding and obligatory upon the parties to it, according to its terms and meaning. To make an unalterable compact valid is to make it perpetually binding.

Having shown that the articles of compact in the ordinance were unalterable; that validity was given to them by the Const.i.tution itself; that in express terms they applied to States as well as to Territories, and must, therefore, being made valid by the Const.i.tution, necessarily have been understood and intended by Congress and the Convention to prohibit slavery as effectually in one as the other, I will now show very briefly that they were also so understood in all parts of the country.

Mr. WILSON, of Pennsylvania, a prominent member of the Federal Convention, and also of the State Convention for ratifying the Const.i.tution, remarked in the latter as follows:

"I consider this clause as laying the foundation for banis.h.i.+ng slavery out of the land.... The new States which are to be formed will be under the control of Congress in this particular, and slavery will never be introduced among them."

Mr. WILSON speaks of the clause authorizing the prohibition of the African slave trade.