Gov Randolph said, we are told in strong language, of dangers to which
we will be exposed unless we adopt this Constitution. Among the rest,
domestic safety is said to be in danger. This government does not
attend to our domestic safety. It authorizes the importation of slaves
for twenty-odd years, and thus continues upon us that nefarious trade.
Instead of securing and protecting us, the continuation of this
detestable trade adds daily to our weakness. Though this evil is
increasing, there is no clause in the Constitution that will prevent
the northern and eastern States from meddling with our whole property
of that kind. There is a clause to prohibit the importation of slaves
after twenty years, but there is no provision made for securing to the
southern States those they now possess. It is far from being a
desirable property. But it will involve us in great difficulties and
infelicity to be now deprived of them. There ought to be a clause in
the Constitution to secure us that property, which we have acquired
under our former laws, and the loss of which would bring ruin on a
great many people.
Mr. Lee. The honorable gentleman abominates it, because it does not
prohibit the importation of slaves, and because it does not secure the
continuance of the existing slavery! Is it not obviously inconsistent
to criminate it for two contradictory reasons? I submit it to the
consideration of the gentleman, whether, if it be reprehensible in the
one case, it can be censurable in the other? Mr. Lee then concluded by
earnestly recommending to the committee to proceed regularly.
Mr. Henry. It says, that "no state shall engage in war, unless
actually invaded." If you give this clause a fair construction, what
is the true meaning of it? What does this relate to? Not domestic
insurrections, but war. If the country be invaded, a state may go to
war; but cannot suppress insurrections. If there should happen an
insurrection of slaves, the country cannot be said to be
invaded.--They cannot therefore suppress it, without the interposition
of congress.
Mr. George Nicholas said, another worthy member says, there is no
power in the States to quell an insurrection of slaves. Have they it
now? If they have, does the Constitution take it away? If it does, it
must be in one of the three clauses which have been mentioned by the
worthy member. The first clause gives the general government power to
call them out when necessary. Does this take it away from the States?
No. But it gives an additional security: for, besides the power in the
State governments to use their own militia, it will be the duty of the
general government to aid them with the strength of the Union when
called for. No part of the Constitution can show that this power is
taken away.
Mr. George Mason. Mr. Chairman, this is a fatal section, which has
created more dangers than any other. The first clause allows the
importation of slaves for twenty years. Under the royal government,
this evil was looked upon as a great oppression, and many attempts
were made to prevent it; but the interest of the African merchants
prevented its prohibition. No sooner did the revolution take place,
than it was thought of. It was one of the great causes of our
separation from Great Britain. Its exclusion has been a principal
object of this State, and most of the States in the Union. The
augmentation of slaves weakens the States; and such a trade is
diabolical in itself, and disgraceful to mankind. Yet, by this
Constitution, it is continued for twenty years. As much as I value an
union of all the States, I would not admit the Southern States into
the Union, unless they agreed to the discontinuance of this
disgraceful trade, because it would bring weakness and not strength to
the Union. And though this infamous traffic be continued, we have no
security for the property of that kind which we have already. There is
no clause in this Constitution to secure it; for they may lay such tax
as will amount to manumission. And should the government be amended,
still this detestable kind of commerce cannot be discontinued till
after the expiration of twenty years. For the fifth article, which
provides for amendments, expressly excepts this clause. I have ever
looked upon this as a most disgraceful thing to America. I cannot
express my detestation of it. Yet they have not secured us the
property of the slaves we have already. So that, "they have done what
they ought not to have done, and have left undone what they ought to
have done."
Mr. Madison. Mr. Chairman, I should conceive this clause to be
impolitic, if it were one of those things which could be excluded
without encountering greater evils. The Southern States would not have
entered into the Union of America, without the temporary permission of
that trade. And if they were excluded from the Union, the consequences
might be dreadful to them and to us. We are not in a worse situation
than before. That traffic is prohibited by our laws, and we may
continue the prohibition. The Union in general is not in a worse
situation. Under the articles of confederation, it might be continued
forever: but by this clause an end may be put to it after twenty
years. There is, therefore, an amelioration of our circumstances. A
tax may be laid in the mean time; but it is limited, otherwise
Congress might lay such a tax as would amount to a prohibition. From
the mode of representation and taxation, Congress cannot lay such a
tax on slaves as will amount to manumission. Another clause secures us
that property which we now possess. At present, if any slave elopes to
any of those States where slaves are free, he becomes emancipated by
their laws. For the laws of the States are uncharitable to one another
in this respect. But in this Constitution, "no person held to service,
or labor, in one State, under the laws thereof, escaping into another,
shall, in consequence of any law or regulation therein, be discharged
from such service or labor; but shall be delivered up on claim of the
party to whom such service or labor may be due." This clause was
expressly inserted to enable owners of slaves to reclaim them. This is
a better security than any that now exists. No power is given to the
general government to interpose with respect to the property in slaves
now held by the States. The taxation of this State being equal only to
its representation, such a tax cannot be laid as he supposes. They
cannot prevent the importation of slaves for twenty years; but after
that period, they can. The gentlemen from South Carolina and Georgia
argued in this manner: "We have now liberty to import this species of
property, and much of the property now possessed, has been purchased,
or otherwise acquired, in contemplation of improving it by the
assistance of imported slaves. What would be the consequence of
hindering us from it? The slaves of Virginia would rise in value, and
we would be obliged to go to your markets." I need not expatiate on
this subject. Great as the evil is, a dismemberment of the Union would
be worse. If those States should disunite from the other States, for
not including them in the temporary continuance of this traffic, they
might solicit and obtain aid from foreign powers.
Mr. Tyler warmly enlarged on the impolicy, iniquity, and
disgracefulness of this wicked traffic. He thought the reasons urged
by gentlemen in defence of it were inconclusive, and ill founded. It
was one cause of the complaints against British tyranny, that this
trade was permitted. The Revolution had put a period to it; but now it
was to be revived. He thought nothing could justify it. This temporary
restriction on Congress militated, in his opinion, against the
arguments of gentlemen on the other side, that what was not given up,
was retained by the States; for that if this restriction had not been
inserted, Congress could have prohibited the African trade. The power
of prohibiting it was not expressly delegated to them; yet they would
have had it by implication, if this restraint had not been provided.
This seemed to him to demonstrate most clearly the necessity of
restraining them by a bill of rights, from infringing our unalienable
rights. It was immaterial whether the bill of rights was by itself, or
included in the Constitution. But he contended for it one way or the
other. It would be justified by our own example, and that of England.
His earnest desire was, that it should be handed down to posterity,
that he had opposed this wicked clause.
Mr. Madison. As to the restriction in the clause under consideration,
it was a restraint on the exercise of a power expressly delegated to
congress, namely, that of regulating commerce with foreign nations.
Mr. Henry insisted, that the insertion of these restrictions on
Congress, was a plain demonstration that Congress could exercise
powers by implication. The gentleman had admitted that Congress could
have interdicted the African trade, were it not for this restriction.
If so, the power not having been expressly delegated, must be obtained
by implication. He demanded where, then, was their doctrine of
reserved rights? He wished for negative clauses to prevent them from
assuming any powers but those expressly given. He asked why it was
moited to secure us that property in slaves, which we held now? He
feared its omission was done with design. They might lay such heavy
taxes on slaves, as would amount to emancipation; and then the
Southern States would be the only sufferers. His opinion was confirmed
by the mode of levying money. Congress, he observed, had power to lay
and collect taxes, imposts, and excises. Imposts (or duties) and
excises, were to be uniform. But this uniformity did not extend to
taxes. This might compel the Southern States to liberate their
negroes. He wished this property therefore to be guarded. He
considered the clause which had been adduced by the gentleman as a
security for this property, as no security at all. It was no more than
this--that a runaway negro could be taken up in Maryland or New-York.
This could not prevent Congress from interfering with that property by
laying a grievous and enormous tax on it, so as to compel owners to
emancipate their slaves rather than pay the tax. He apprehended it
would be productive of much stock-jobbing, and that they would play
into one another's hands in such a manner as that this property would
be lost to the country.
Mr. George Nicholas wondered that gentlemen who were against slavery,
would be opposed to this clause; as after that period the slave trade
would be done away. He asked, if gentlemen did not see the
inconsistency of their arguments? They object, says he, to the
Constitution, because the slave trade is laid open for twenty-odd
years; and yet tell you, that by some latent operation of it, the
slaves who are so now, will be manumitted. At the same moment, it is
opposed for being promotive and destructive of slavery. He contended
that it was advantageous to Virginia, that it should be in the power
of Congress to prevent the importation of slaves after twenty years,
as it would then put a period to the evil complained of.
As the Southern States would not confederate without this clause, he
asked, if gentlemen would rather dissolve the confederacy than to
suffer this temporary inconvenience, admitting it to be such? Virginia
might continue the prohibition of such importation during the
intermediate period, and would be benefitted by it, as a tax of ten
dollars on each slave might be laid, of which she would receive a
share. He endeavored to obviate the objection of gentlemen, that the
restriction on Congress was a proof that they would have power not
given them, by remarking, that they would only have had a general
superintendency of trade, if the restriction had not been inserted.
But the Southern States insisted on this exception to that general
superintendency for twenty years. It could not therefore have been a
power by implication, as the restriction was an exception from a
delegated power. The taxes could not, as had been suggested, be laid
so high on negroes as to amount to emancipation; because taxation and
representation were fixed according to the census established in the
Constitution. The exception of taxes, from the uniformity annexed to
duties and excises, could not have the operation contended for by the
gentleman; because other clauses had clearly and positively fixed the
census. Had taxes been uniform, it would have been universally
objected to, for no one object could be selected without involving
great inconveniences and oppressions. But, says Mr. Nicholas, is it
from the general government we are to fear emancipation? Gentlemen
will recollect what I said in another house, and what other gentlemen
have said that advocated emancipation. Give me leave to say, that that
clause is a great security for our slave tax. I can tell the
committee, that the people of our country are reduced to beggary by
the taxes on negroes. Had this Constitution been adopted, it would not
have been the case. The taxes were laid on all our negroes. By this
system two-fifths are exempted. He then added, that he imagined
gentlemen would not support here what they had opposed in another
place.
Mr. Henry replied, that though the proportion of each was to be fixed
by the census, and three-fifths of the slaves only were included in
the enumeration, yet the proportion of Virginia being once fixed,
might be laid on blacks and blacks only. For the mode of raising the
proportion of each State being to be directed by Congress, they might
make slaves the sole object to raise it. Personalities he wished to
take leave of: they had nothing to do with the question, which was
solely whether that paper was wrong or not.
Mr. Nicholas replied, that negroes must he considered as persons, or
property. If as property, the proportion of taxes to be laid on them
was fixed in the Constitution. If he apprehended a poll tax on
negroes, the Constitution had prevented it. For, by the census, where
a white man paid ten shillings, a negro paid but six shillings. For
the exemption of two-fifths of them reduced it to that proportion.
The second, third, and fourth clauses, were then read as follows:
The privilege of the writ of habeas corpus shall not be suspended,
unless when in cases of rebellion or invasion the public safety may
require it.
No bill of attainder or ex post facto law shall be passed.
No capitation or other direct tax shall be paid, unless in proportion
to the census or enumeration herein before directed to be taken.
Mr. George Mason said, that gentlemen might think themselves secured
by the restriction in the fourth clause, capitation or other direct
tax should he laid but in proportion to the census before directed to
be taken. But that when maturely considered it would be found to be no
security whatsoever. It was nothing but a direct assertion, or mere
confirmation of the clause which fixed the ratio of taxes and
representation. It only meant that the quantum to be raised of each
State should be in proportion to their numbers in the manner therein
directed. But the general government was not precluded from laying the
proportion of any particular State on any one species of property they
might think proper. For instance, if five hundred thousand dollars
were to be raised, they might lay the whole of the proportion of
Southern States on the blacks, or any one species of property: so that
by laying taxes too heavily on slaves, they might totally annihilate
that kind of property. No real security could arise from the clause
which provides, that persons held to labor in one State, escaping into
another, shall be delivered up. This only meant, that runaway slaves
should not be protected in other States. As to the exclusion of _ex
post facto_ laws, it could not be said to create any security in this
case. For laying a tax on slaves would not be _ex post facto_.
Mr. Madison replied, that even the Southern States, who were most
affected, were perfectly satisfied with this provision, and dreaded no
danger to the property they now hold. It appeared to him, that the
general government would not intermeddle with that property for twenty
years, but to lay a tax on every slave imported, not exceeding ten
dollars; and that after the expiration of that period they might
prohibit the traffic altogether. The census in the constitution was
intended to introduce equality in the burdens to be laid on the
community. No gentleman objected to laying duties, imposts, and
excises, uniformly. But uniformity of taxes would be subversive to the
principles of equality: for that it was not possible to select any
article which would be easy for one State, but what would be heavy for
another. That the proportion of each State being ascertained, it would
be raised by the general government in the most convenient manner for
the people, and not by the selection of any one particular object.
That there must be some decree of confidence put in agents, or else we
must reject a state of civil society altogether. Another great
security to this property, which he mentioned, was, that five States
were greatly interested in that species of property, and there were
other States which had some slaves, and had made no attempt, or taken
any step to take them from the people. There were a few slaves in New
York, New Jersey and Connecticut: these States could, probably, oppose
any attempts to annihilate this species of property. He concluded, by
observing, that he would be glad to leave the decision of this to the
committee.
The second section was then read as follows:
* * * * *
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.
Mr. George Mason.--Mr. Chairman, on some former part of the
investigation of this subject, gentlemen were pleased to make some
observations on the security of property coming within this section.
It was then said, and I now say, that there is no security, nor have
gentlemen convinced me of this.
Mr. Henry. Among ten thousand implied powers which they may assume,
they may, if we be engaged in war, liberate every one of your slaves
if they please. And this must and will be done by men, a majority of
whom have not a common interest with you. They will, therefore, have
no feeling for your interests. It has been repeatedly said here, that
the great object of a national government, was national defence. That
power which is said to be intended for security and safety, may be
rendered detestable and oppressive. If you give power to the general
government to provide for the general defence, the means must be
commensurate to the end. All the means in the possession of the people
must be given to the government which is entrusted with the public
defence. In this State there are 236,000 blacks, and there are many in
several other States. But there are few or none in the Northern
States, and yet if the Northern States shall be of opinion, that our
numbers are numberless, they may call forth every national resource.
May Congress not say, that every black man must fight? Did we not see
a little of this last war? We were not so hard pushed, as to make
emancipation general. But acts of assembly passed, that every slave
who would go to the army should be free. Another thing will contribute
to bring this event about--slavery is detested--we feel its fatal
effects--we deplore it with all the pity of humanity. Let all these
considerations, at some future period, press with full force on the
minds of Congress. Let that urbanity, which I trust will distinguish
America, and the necessity of national defence, let all these things
operate on their minds, they will search that paper, and see if they
have power of manumission. And have they not, sir? Have they not power
to provide for the general defence and welfare? May they not think
that these call for the abolition of slavery? May not they pronounce
all slaves free, and will they not be warranted by that power? There
is no ambiguous implication or logical deduction. The paper speaks to
the point. They have the power in clear, unequivocal terms; and will
clearly and certainly exercise it. As much as I deplore slavery, I
see that prudence forbids its abolition. I deny that the general
government ought to set them free, because a decided majority of the
States have not the ties of sympathy and fellow-feeling for those
whose interest would be affected by their emancipation. The majority
of Congress is to the North, and the slaves are to the South. In this
situation, I see a great deal of the property of the people of
Virginia in jeopardy, and their peace and tranquillity gone away. I
repeat it again, that it would rejoice my very soul, that every one of
my fellow-beings was emancipated. As we ought with gratitude to
admire that decree of Heaven, which has numbered us among the free, we
ought to lament and deplore the necessity of holding our fellow-men in
bondage. But is it practicable by any human means, to liberate them,
without producing the most dreadful and ruinous consequences? We ought
to possess them in the manner we have inherited them from our
ancestors, as their manumission is incompatible with the felicity of
the country. But we ought to soften, as much as possible, the rigor of
their unhappy fate. I know that in a variety of particular instances,
the legislature, listening to complaints, have admitted their
emancipation. Let me not dwell on this subject. I will only add, that
this, as well as every other property of the people of Virginia, is in
jeopardy, and put in the hands of those who have no similarity of
situation with us. This is a local matter, and I can see no propriety
in subjecting it to Congress.
Have we not a right to say, _hear our propositions_? Why, sir, your
slaves have a right to make their humble requests.--Those who are in
the meanest occupations of human life, have a right to complain.
Gov. Randolph said, that honorable gentleman, and some others, have
insisted that the abolition of slavery will result from it, and at the
same time have complained, that it encourages its continuation. The
inconsistency proves in some degree, the futility of their arguments.
But if it be not conclusive, to satisfy the committee that there is no
danger of enfranchisement taking place, I beg leave to refer them to
the paper itself. I hope that there is none here, who, considering the
subject in the calm light of philosophy, will advance an objection
dishonorable to Virginia; that at the moment they are securing the
rights of their citizens, an objection is started that there is a
spark of hope, that those unfortunate men now held in bondage, may, by
the operation of the general government, be made _free_. But if any
gentleman be terrified by this apprehension, let him read the system.
I ask, and I will ask again and again, till I be answered (not by
declamation) where is the part that has a tendency to the abolition of
slavery? Is it the clause which says, that "the migration or
importation of such persons as any of the States now existing, shall
think proper to admit, shall not be prohibited by Congress prior to
the year 1808?" This is an exception from the power of regulating
commerce, and the restriction is only to continue till 1808. Then
Congress can, by the exercise of that power, prevent future
importations; but does it affect the existing state of slavery? Were
it right here to mention what passed in convention on the occasion, I
might tell you that the Southern States, even South Carolina herself,
conceived this property to be secure by these words. I believe,
whatever we may think here, that there was not a member of the
Virginia delegation who had the smallest suspicion of the abolition of
slavery. Go to their meaning. Point out the clause where this
formidable power of emancipation is inserted. But another clause of
the Constitution proves the absurdity of the supposition. The words of
the clause are, "No person held to service or labor in our 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." Every one knows that slaves are held to
service and labor. And when authority is given to owners of slaves to
vindicate their property, can it be supposed they can be deprived of
it? If a citizen of this State, in consequence of this clause, can
take his runaway slave in Maryland, can it be seriously thought, that
after taking him and bringing him home, he could be made free?
I observed that the honorable gentleman's proposition comes in a truly
questionable shape, and is still more extraordinary and unaccountable
for another consideration; that although we went article by article
through the Constitution, and although we did not expect a general
review of the subject, (as a most comprehensive view had been taken of
it before it was regularly debated,) yet we are carried back to the
clause giving that dreadful power, for the general welfare. Pardon me
if I remind you of the true state of that business. I appeal to the
candor of the honorable gentleman, and if he thinks it an improper
appeal, I ask the gentlemen here, whether there be a general
indefinite power of providing for the general welfare? The power is,
"to lay and collect taxes, duties, imposts, and excises, to pay the
debts and provide for the common defence and general welfare." So that
they can only raise money by these means, in order to provide for the
general welfare. No man who reads it can say it is general as the
honorable gentleman represents it. You must violate every rule of
construction and common sense, if you sever it from the power of
raising money and annex it to any thing else, in order to make it that
formidable power which it is represented to be.
Mr. George Mason. Mr. Chairman, with respect to commerce and
navigation, he has given it as his opinion, that their regulation, as
it now stands, was a _sine qua non_ of the Union, and that without it,
the States in convention would never concur. I differ from him. It
never was, nor in my opinion ever will be, a _sine qua non_ of the
Union. I will give you, to the best of my recollection, the history of
that affair. This business was discussed at Philadelphia for four
months, during which time the subject of commerce and navigation was
often under consideration; and I assert, that eight States out of
twelve, for more than three months, voted for requiring two-thirds of
the members present in each house to pass commercial and navigation
laws. True it is, that afterwards it was carried by a majority, as it
stands. If I am right, there was a great majority for requiring
two-thirds of the States in this business, till a compromise took
place between the Northern and Southern States; the Northern States
agreeing to the temporary importation of slaves, and the Southern
States conceding, in return, that navigation and commercial laws
should be on the footing on which they now stand. If I am mistaken,
let me be put right. These are my reasons for saying that this was
not a _sine qua non_ of their concurrence. The Newfoundland fisheries
will require that kind of security which we are now in want of. The
Eastern States therefore agreed at length, that treaties should
require the consent of two-thirds of the members present in the
senate.