The History of Slavery and the Slave Trade/Chapter 23
CHAPTER XXIII.
Formation of the Constitution — Slavery Compromises.
The convention of delegates from the several states to revise the Articles of Confederation, was legally assembled at Philadelphia, in 1787, and appointed George Washington its President. The result of its labors was the formation of the present Constitution of the United States, though some amendments were afterwards made.
The fourteenth of May was the day appointed for the meeting of the convention; but seven states were not present till eleven days later, when the convention assembled in the chamber of the State House in Philadelphia, in which the Continental Congress, while resident in that city, had been accustomed to hold its sessions, and in which the independence of the United States had been declared. Washington was a member, and so was Franklin, for the two years since his return from Europe president of Pennsylvania. As Franklin could be the only competitor for the place of president of the convention, the nomination of Washington came gracefully from Robert Morris, on behalf of the Pennsylvania delegation. A secretary was chosen, and a committee appointed to report rules of proceeding.
Upon the report of this committee rules were adopted, copied chiefly from those of Congress. As in Congress, each state was to have one vote; seven states were to constitute a quorum; all committees were to be appointed by ballot; the doors were to be closed, and an injunction of secrecy, never removed, was placed on the debates. The members were not even allowed to take copies of the entries on the journal.
Eleven states were soon represented by about fifty delegates from among the most illustrious citizens of the states — men highly distinguished for talents, character, practical knowledge, and public services. The aged Franklin had sat in the Albany convention of 1754, in which the first attempt had been made at colonial union. Dickinson, who sat in the present convention as one of the members from Delaware, William S. Johnson, of Connecticut, and John Rutledge, of South Carolina, had participated in the Stamp Act Congress of 1165. Besides Washington, Dickinson, and Rutledge, who had belonged to the Continental Congress of 1174, there were also present, from among the members of that body, Roger Sherman, of Connecticut, William Livingston, governor of New Jersey, George Read, of Delaware, and George Wythe, of Virginia; and of the signers of the Declaration of Independence — besides* Franklin, Read, Wythe, and Sherman — Elbridge Gerry, of Massachusetts, and Robert Morris, George Clymer, and James Wilson, of Pennsylvania. Eighteen members were at the same time delegates to the Continental Congress; and of the whole number there were only twelve who had not sat at some time in that body. The officers of the revolutionary army were represented by Washington, Mifflin, Hamilton, and Charles Cotesworth Pinckney, who had been colonel of one of the South Carolina regiments, and at one time an aide-de-camp to Washington. Of those members who had come prominently forward since the declaration of independence, the most conspicuous were Hamilton, Madison, and Edmund Randolph, who had lately succeeded Patrick Henry as governor of Virginia. The members who took the heading part in the debates were Madison, Mason, and Randolph, of Virginia; Gerry, Gorham, and King, of Massachusetts; Wilson, Gouverneur Morris, and Franklin, of Pennsylvania; Johnson, Sherman, and Ellsworth, of Connecticut; Hamilton and Lansing, of New York; Charles Cotesworth Pinckney and Charles Pinckney, of South Carolina — the latter chosen governor of that State the next year; Patterson, of New Jersey; Martin, of Maryland; Dickinson, of Delaware; and Williamson, of North Carolina.
In settling a rule of apportionment, several questions were to be considered. What should be the number of representatives in the first branch of the legislature? Ought the number from each state to be fixed, or to increase with the increase of population? Ought population alone to be the basis of apportionment? or should property be taken into account? Whatever rule might be adopted, no apportionment founded upon population could be made until an enumeration of the inhabitants should have been taken. The number of representatives was, therefore, for the time being, fixed at sixty-five, and apportioned as directed by the constitution, Art. I. sec. 2.
In establishing a rule of future apportionment, great diversity of opinion was expressed. Although slavery then existed in all the states except Massachusetts, the great mass of the slave population was in the southern states. These states claimed a representation according to numbers, bond and free, while the northern states were in favor of a representation according to the number of free persons only. This rule was forcibly urged by several of the northern delegates. Mr. Patterson, of New Jersey, regarded slaves only as property. They were not represented in the states; why should they be in the general government? They were not allowed to vote; why should they be represented? It was an encouragement of the slave-trade. Said Mr. Wilson, of Pennsylvania: "Are they admitted as citizens? then why not on an equality with citizens? Are they admitted as property? then why is not other property admitted into the computation?" A large portion of the members of the convention, from both sections of the Union, aware that neither extreme could be carried, favored the proposition to count the whole number of free citizens and three-fifths of all others.
Prior to this discussion, a select committee, to whom this subject had been referred, had reported in favor of a distribution of the members on the basis of wealth and numbers, to be regulated by the legislature. Before the question was taken on this report, a proviso was moved and agreed to, that direct taxes should be in proportion to representation. Subsequently a proposition was moved for reckoning three-fifths of the slaves in estimating taxes, and making taxation the basis of representation, which was adopted; New Jersey and Delaware against it, Massachusetts and South Carolina divided; New York not represented, her three delegates being all absent.
To render the constitution acceptable to the southern states, which were the principal exporting states, the committee of detail had inserted a clause, providing that no duties should be laid on exports, or on slaves imported; and another, that no navigation act might be passed, except by a two-thirds vote. By depriving congress of the power of giving any preference to American over foreign shipping, it was designed to secure cheap transportation to southern 
Mr. King, of Massachusetts, in reference to the admission of slaves as a part of the representative population, remarked: "He had not made a strenuous opposition to it heretofore, because he had hoped that this concession would have produced a readiness, which had not been manifested, to strengthen the general government. (The report of the committee put an end to all those hopes. The importation of slaves could not be prohibited; exports could not be taxed. If slaves are to be imported, shall not the exports produced by their labor supply a revenue to help the government defend their masters? There was so much inequality and unreasonableness in all this, that the people of the northern states could never be reconciled to it. (He had hoped that some accommodation would have taken place on the subject; that at least a time would have been limited for the importation of slaves. "He could never agree to let them be imported without limitation, and then be represented in the national legislature. Either slaves should not be represented, or exports should be taxable."
Gouverneur Morris, of Pa., pronounced slavery "a nefarious institution It was the curse of Heaven on the states where it prevailed. Compare the free regions of the middle states, where a rich and noble cultivation marks the prosperity and happiness of the people, with the misery and poverty which overspread the barren wastes of Virginia, Maryland, and the other states having slaves. Travel through the whole continent, and you behold the prospect continually varying with the appearance and disappearance of slavery. The admission of slaves into the representation, when fairly explained, comes to this, that the inhabitant of Georgia and South Carolina, who goes to the coast of Africa in defiance of the most sicred laws of humanity, tears away his fellow-creatures from their dearest connections, and damns them to the most cruel bondage, shall have more votes in a government instituted for the protection of the rights of mankind, than the citizen of Pennsylvania or New Jersey, who views with a laudable horror so nefarious a practice. And what is the proposed compensation to the northern states for a sacrifice of every principle of right, every impulse of humanity? They are to bind themselves to march their militia for the defense of the southern states, against those very slaves of whom they complain. The legislature will have indefinite power to tax them by excises and duties on imports, both of which will fall heavier on them than on the southern inhabitants; for the Bohea tea used by a northern freeman, will pay more tax than the whole consumption of the miserable slave, which consists of nothing more than his physical subsistence and the rag which covers his nakedness. On the other side, the southern states are not to be restrained from importing fresh supplies of wretched Africans, at once to increase the clanger of attack and the difficulty of defense; nay, they are to be encouraged to it by an assurance of having their votes in the national government increased in proportion, and, at the same time, are to have their slaves and their exports exempt from all contributions to the public service." Mr. Morris moved to make L the free population alone the basis of representation.
Mr. Sherman, of Ct.. who had on other occasions manifested a disposition to compromise, again favored the southern side. He "did not regard the admission of the negroes as liable to such insuperable objections. It was the freemen of the southern states who were to be represented according to the taxes paid by them, and the negroes are only included in the estimate of the taxes."
After some farther discussion, the question was taken upon Mr. Morris' motion, and lost, New Jersey only voting for it.
With respect to prohibiting any restriction upon the importation of slaves, Mr. Martin, of Maryland, who moved to allow a tax upon slaves imported, remarked: "As five slaves in the apportionment of representatives were reckoned as equal to three freemen, such a permission amounted to an encouragement of the slave-trade. Slaves weakened the union which the other parts were bound to protect; the privilege of importing them was therefore unreasonable. Such a feature in the constitution was inconsistent with the principles of the revolution, and dishonorable to the American character."
Mr. Rutledge, of S. C., "did not see how this section would encourage the importation of slaves. He was not apprehensive of insurrections, and would readily exempt the other states from every obligation to protect the south. Religion and humanity had nothing at all to do with this question. Interest alone is the governing principle with nations. The true question at present is, whether the southern states shall or shall not be parties to the union. If the northern states consult their interest, they will not oppose the increase of slaves, which will increase the commodities of which they will become the carriers."
Mr. Ellsworth, of Ct, said: "Let every state import what it pleases. The morality or wisdom of slavery is a consideration belonging to the states. What enriches a part enriches the whole, and the states are the best judges of their particular interests."
Mr. C. Pinckney said: "South Carolina can never receive the plan if it prohibits the slave-trade. If the states be left at liberty on this subject, South Carolina may perhaps, by degrees, do of herself what is wished, as Maryland and Virginia already have done."
Mr. Sherman, of Ct., concurred with his colleague, (Mr. Ellsworth.) "He disapproved the slave-trade; but as the states now possessed the right, and the public good did not require it to be taken away; and as it was expedient to have as few objections as possible to the proposed scheme of government, he would leave the matter as he found it, The abolition of slavery seemed to be going on in the United States, and the good sense of the several states would probably, by degrees, soon complete it."
Mr. Mason, of Ya., said: "Slavery discourages arts and manufactures. The poor despise labor when performed by slaves. They prevent the immigration of whites, who really enrich and strengthen a country. They produce a pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of heaven on a country. He lamented that some of our eastern brethren, from a lust of gain, had embarked in this nefarious traffic. As to the states being in possession of the right to import, that was the case of many other rights now to be given up. lie held it essential, in every point of view, that the general government should have power to prevent the increase of slavery."
Mr. Ellsworth, not well pleased with this thrust at his slave-trading friends at the north, by a slave-holder, tartly replied: "As I have never owned a slave, I can not judge of the effects of slavery on character; but if slavery is to be considered in a moral light, the convention ought to go further, and free those already in the country." The opposition of Virginia and Maryland to the importation of slaves he attributed to the fact that, on account of the rapid increase in those states, "it was cheaper to raise them there than to import them, while in the sickly rice swamps foreign supplies were necessary. If we stop short with prohibiting their importation, we shall be unjust to South Carolina and Georgia. Let us not intermeddle. As population increases, poor laborers will be so plenty as to render slaves useless. Slavery, in time, will not be a speck in our country."
Delegates from South Carolina and Georgia repeated the declaration that, if the slave-trade were prohibited, these states would not adopt the constitution. Virginia, it was said, would gain by stopping the importation, she having slaves to sell; but it would be unjust to South Carolina and Georgia to be deprived of the right of importing. Besides, the importation of slaves would be a benefit to the whole union. The more slaves, the more produce, the greater carrying trade, the more consumption, the more revenue.
Williamson, of N. C., expressed his conviction that the two southern states, if prohibited to import slaves, would not become members of the union. Wilson, of Pa., suggested that, if negroes were the only imports not subject to a duty, such an exception would amount to a bounty. Gerry, of Mass., thought the convention had nothing to do with the conduct of the states as to slavery; but they ought to be careful not to give any sanction to it. Dickinson and Langdon, of New Hampshire, maintained that neither honor, safety, nor good conscience would allow permission to the states to continue the slave-trade. King thought the subject should be considered in a political light only. If two southern states would not consent to the prohibition, neither would other slates to the allowance. "The exemption of slaves from duty while every other import was subject to it, was an inequality that could not fail to strike the commercial sagacity of the northern and middle states."
This hint about a tax was not thrown away. Charles Pinckney, of S. C, would consent to a tax equal to that imposed on other imports, and he moved a commitment with that view. Rutledge seconded the motion. Gouverneur Morris proposed that the whole article, including the clauses relating to navigation laws and taxes on exports, should be referred to the same committee. "These things," he remarked, "may form a bargain among the northern and southern states." Sherman suggested that a tax on slaves imported would make the matter worse, since it implied they were property. Randolph supported the commitment in hopes that some middle ground might be hit upon. He would rather risk the constitution than support the clause as it stood. Ellsworth advocated the article as it was." This widening of opinions had a threatening aspect. He was afraid we should lose two states, with such others as might be disposed to stand aloof, should fly into a variety of shapes and directions, and most probably into several confederations — not without bloodshed." The motion for reference prevailed, and the article was referred to a grand committee of one from each state. The report of this committee retained the prohibition of export duties, but struck out the restriction on the enactment of navigation laws. Until the year 1800 it allowed the unrestrained migration or importation of such persons as the states might see fit to receive, subject, however, to the imposition of a duty by congress, the maximum of which was presently fixed at ten dollars.
Williamson, of N. C, declared himself, both in opinion and practice, against slavery; but he thought it more in favor of humanity, from a view of all circumstances, to let in South Carolina and Georgia on these terms, than to exclude them from the union. Sherman, of Ct., again objected to the tax as acknowledging men to be property. Gorham, of Mass., replied that the duty ought to be considered, not as implying that men are property, but as a discouragement to their importation. Sherman said the duty was too small to bear that character. Madison thought it "wrong to admit, in the constitution, the idea that there could be property in a man," and the phraseology of one clause was subsequently altered to avoid any such implication. Gouverneur Morris objected that the clause gave congress power to tax freemen imported; to which Mason replied that such a power was necessary to prevent the importation of convicts. A motion to extend the time from 1800 to 1808, made by C. C. Pinckney and seconded by Gorham, was carried against the votes of New Jersey, Pennsylvania, Delaware and Virginia; Massachusetts, Connecticut, and New Hampshire voting this time with Georgia and South Carolina. That part of the report which struck out the restriction on the enactment of navigation acts was opposed by Charles Pinckney in a set speech, in which he enumerated five distinct commercial interests: the fisheries and West India trade, belonging to New England; the interest of New York in a free trade; wheat and flour, the staples of New Jersey and Pennsylvania; tobacco, the staple of Maryland and Virginia, and partly of North Carolina; rice and indigo, the staples of South Carolina and Georgia. The same ground was taken by Williamson and Mason, and very warmly by Randolph, who declared that an unlimited power in congress to enact navigation laws "would complete the deformity of a system having already so many odious features that he hardly knew if he could agree to it." Any restriction of the power of congress over commerce was warmly opposed by Gouvernenr Morris, Wilson, and Gorham. Madison also took the same side. C. C. Pinckney did not deny that it was the true interest of the south to have no regulation of commerce; but, considering the commercial losses of the eastern states during the revolution, their liberal conduct toward the views of South Carolina (in the vote just taken, giving eight years' further extension to the slave-trade), and the interest of the weak southern states in being united with the strong eastern ones, he should go against any restrictions on the power of commercial regulation. "He had himself prejudices against the eastern states before he came here, but would acknowledge that he had found them as liberal and candid as any men whatever." Butler and Rutledge took the same ground, and the amended report was adopted, against the votes of Maryland, Virginia, North Carolina, and Georgia.
Thus, by an understanding, or, as Gouverneur Morris called it, "a bargain," between the commercial representatives of the northern states and the delegates of South Carolina and Georgia, and in spite of the opposition of Maryland and Virginia, the unrestricted power of congress to enact navigation laws was conceded to the northern merchants, and to the Carolina rice planters, as an equivalent, twenty years' continuance of the African slave-trade. This was the third great compromise of the constitution. The other two were the concession to the smaller states of an equal representation in the senate, and, to the slave-holders, the counting three fifths of the slaves in determining the ratio of representation. If this third compromise differed from the other two by involving not merely a political, but a moral sacrifice, there was this partial compensation about it, that it was not permanent, like the others, but expired at the end of twenty years by its own limitation.[1]
When the article came up providing for the mutual delivery of fugitives from justice, a motion was made by Butler, seconded by C. Pinckney, that fugitive slaves and servants be included. Wilson objected that this would require a delivery at the public expense. Sherman saw no more propriety in the public seizing and surrendering a servant than a horse. Butler withdrew his motion; but the next day he introduced a clause substantially the same with that now found in the constitution, which provides that "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 frora such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
The constitution bears date the 11th of September, 1781. It was immediately transmitted to congress, with a recommendation to that body to submit it to state conventions for ratification, which was accordingly done. It was adopted by Delaware, December 7; by Pennsylvinia, December 12; by New Jersey, December 18; by Georgia, January 2, 1188; by Connecticut, January 9; by Massachusetts, February 1; by Maryland, April 28; by South Carolina, May 23; by New Hampshire, June 21; which being the ninth ratifying state, gave effect to the constitution. Virginia ratified June 21; New York, July 26; and North Carolina, conditionally, August 7. Rhode Island did not call a convention.
In Massachusetts, Virginia and New York, the constitution encountered a most formidable opposition, which rendered its adoption by these states for a time extremely doubtful. In their conventions were men on both sides who had been members of the national convention, associated with others of distinguished abilities. In Massachusetts there were several adverse influences which would probably have defeated the ratification in that state, had it not been accompanied by certain proposed amendments to be submitted by congress to the several states for ratification. The adoption of these by the convention gained for the constitution the support of Hancock and Samuel Adams; and the question on ratification was carried by one hundred and eighty-seven against one hundred and sixty-eight.
In the Virginia convention, the constitution was opposed by Patrick Henry, James Monroe, and George Mason, the last of whom had been one of the convention framers. On the other side were John Marshall, Mr. Pendleton, Mr. Madison, George Wythe, and Edmund Randolph, the three last also having been members of the national convention. Mr. Randolph had refused to sign the constitution, but had become one of its warmest advocates. In the convention of this state, also, the ratification was aided by the adoption of a bill of rights and certain proposed amendments; and was carried, eighty-eight yeas against eighty nays.
In the convention of New York, the opposition embraced a majority of its members, among whom were Yates and Lansing, members of the general convention, and George Clinton. The principal advocates of the constitution were John Jay, Robert R. Livingston, and Mr. Hamilton. Strong efforts were made for a conditional ratification, which were successfully opposed, though not without the previous adoption of a bill of rights, and numerous amendments. With these, the absolute ratification was carried, thirty-one to twenty-nine.
The ratification of North Carolina was not received by congress until January, 1190; and that of Rhode Island, not until June of the same year.
The injunction of secrecy as to the proceedings of the convention was never removed. At the final adjournment, the Journal, in accordance with a previous vole, was intrusted to the custody of Washington, by whom it was afterward deposited in the department of state. It was first printed by order of congress in 1818. Yates, one of the members from New York, took short notes of the earlier debates, which were published after his death in 1821. The more perfect notes of Madison, recently published, with the official Journal, the notes of Yates, and a representation to the legislature of Maryland made by Luther Martin, furnish materials for a view, tolerably complete, of the conflicting opinions by which the convention was divided, and of the process which gradually matured and brought into shape the federal constitution.
The following are the provisions of the constitution which are presumed to relate to the subject of slavery:
Preamble. "We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.
"Art. 1. Sec. 1. All legislative powers herein granted, shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.
"Sec. 2. * * * Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according [o their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to servitude for a term of years, and excluding Indians not taxed, three-fifths of all other persons.
"Sec. 9. The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year 1808; but a tax or duty may be imposed, not exceeding ten dollars on each person.
"The privilege of the writ of habeas corpus shall not be suspended, unless when, in the cases of rebellion or invasion, the public safety may require it.
"No bill of attainder, or ex post facto laws, shall be passed.
"Art. III. Sec. 3. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
"Art, IV. Sec. 2. The citizens of each state shall be entitled to all the privileges of citizens, in the several states.
"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.
Sec. 3. New states may be admitted by the congress into this Union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned, as well as of the congress.
"The congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.
"Sec. 4. The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive when the legislature cannot be convened, against domestic violence.
"Art. VI. This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."
The above are all the clauses of the constitution that have been quoted, on one side or the other, as bearing upon the subject of slavery.
It will be noted that the word "slave," or "slavery," does not appear therein. Mr. Madison, who was a leading and observant member of the convention, and who took notes of its daily proceedings, affirms that this silence was designed — the convention being unwilling that the constitution of the United States should recognize property in human beings. In passages where slaves are presumed to be contemplated, they are uniformly designated as "persons," never as property. Contemporary history proves that it was the belief of at least a large portion of the delegates that slavery could not long survive the final stoppage of the slave-trade, which was expected to (and did) occur in 1808.
The following among the amendments to the constitution proposed by the ratifying convention of one or more states, and adopted, are supposed by some to bear on the questions now agitated relative to slavery:
"Art. I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the rights of the people peacefully to assemble, and to petition the government for a redress of grievances.
"Art. II. A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
"Art. V. No person shall be * * * deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."
- ↑ Secret Debates. Hildreth's History of U. S. Political History of U. S.