Slavery and the Constitution Part 16

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 ent.i.tled 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 Sat.u.r.day, 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 emanc.i.p.ated, by their laws; for the laws of the States are uncharitable (!) to one another in this respect. But in this Const.i.tution, '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 emanc.i.p.ated 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 ent.i.tled 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 Const.i.tution_.

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 Const.i.tution:--

"_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 circ.u.mstances, 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 Const.i.tution 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 Const.i.tution 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 CONSt.i.tUTION 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 Const.i.tution (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 Was.h.i.+ngton, who had been president of the Convention which framed the Const.i.tution, approved "an Act providing for the enumeration of the inhabitants of the United States." The first Congress ever a.s.sembled, and the first President ever elected, under the Const.i.tution, under the sanction of their respective oaths "to support the Const.i.tution," 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 Const.i.tution. 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 distinguis.h.i.+ng free persons, including those bound to service for a term of years, from all others; distinguis.h.i.+ng also the s.e.xes 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 a.s.sistants within their respective districts as to them shall appear necessary, a.s.signing to each a.s.sistant a certain division of his district," &c.

These a.s.sistants 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. a.s.sistant to the Marshal of ----"

+---------+----------+-----------+----------+----------+---------+ Names of Free white Free white Free white _All other _Slaves._ heads of males of males under females, free families. sixteen sixteen including persons._ years and years. heads of upwards, families. including heads of families. +---------+----------+-----------+----------+----------+---------+ +---------+----------+-----------+----------+----------+---------+

That is, the enumeration directed to be made, and upon the basis of which the const.i.tutional 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 pa.s.sing 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, pa.s.sed "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 Const.i.tution, that is to say, within the State of New Hamps.h.i.+re, four," &c. &c.

That is, the second Congress, upon an enumeration distinguis.h.i.+ng only freemen from slaves, undertake to apportion representatives among the States according to the rule laid down in the Const.i.tution, 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 Const.i.tution is not right, then, since March 3, 1793, there has not been a single House of Representatives const.i.tutionally elected, or a single statute or resolve const.i.tutionally pa.s.sed!_ Who is ready to make this admission?

PERMISSION OF THE AFRICAN SLAVE-TRADE. (Const. Art. 1, sec. 9.)