CHAPTER XIV._Slavery and the Constitution

THE CONSTITUTION 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 Constitution (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 Washington, who had been president of

the Convention which framed the Constitution, approved "an Act providing

for the enumeration of the inhabitants of the United States." The first

Congress ever assembled, and the first President ever elected, under the

Constitution, under the sanction of their respective oaths "to support

the Constitution," 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 Constitution. 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 distinguishing free persons,

including those bound to service for a term of years, from all

others; distinguishing also the sexes 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 assistants within their respective districts as

to them shall appear necessary, assigning to each assistant a

certain division of his district," &c.

These assistants 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. Assistant to the Marshal of ----"

+---------+----------+-----------+----------+----------+---------+

+---------+----------+-----------+----------+----------+---------+

| | | | | | |

+---------+----------+-----------+----------+----------+---------+

That is, the enumeration directed to be made, and upon the basis of

which the constitutional 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 passing 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, passed "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

Constitution, that is to say, within the State of New Hampshire,

four," &c. &c.

That is, the second Congress, upon an enumeration distinguishing only

freemen from slaves, undertake to apportion representatives among the

States according to the rule laid down in the Constitution, 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 Constitution is not right, then, since March 3, 1793, there has

not been a single House of Representatives constitutionally elected, or

a single statute or resolve constitutionally passed!_ Who is ready to

make this admission?

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

On the 13th of May 1789, in Congress,--

"Mr. Parker (of Va.) moved to insert a clause in the bill, imposing

a duty on the importation of slaves of ten dollars each person. He

_was sorry that the Constitution prevented Congress from prohibiting

the importation altogether_; he thought it a defect in that

instrument that it allowed of such actions; it was contrary to the

revolution principles, and ought not to be permitted; but, as he

could not do all the good he desired, he was willing to do what lay

in his power.

* * * * *

"Mr. Sherman (of Ct.) approved of the object of the motion; but he

did not think this bill was proper to embrace the subject. He could

not reconcile himself to the insertion of human beings, as an

article of duty, among goods, wares, and merchandise. He hoped it

would be withdrawn for the present, and taken up hereafter as an

independent subject.

* * * * *

"Mr. Schureman (of N. J.) hoped the gentleman would withdraw his

motion, because the present was not the time or place for

introducing the business; he thought it had better be brought

forward in the House, as a distinct proposition.

* * * * *

"Mr. Madison (of Va.): I cannot concur with gentlemen who think the

present an improper time or place to enter into a discussion of the

proposed motion. If it is taken up in a separate view, we shall do

the same thing, at a greater expense of time....

"I conceive the Constitution, in this particular, was formed in

order that the government, whilst it was restrained from laying a

total prohibition, might be able to give some testimony of the sense

of America with respect to the African trade. We have liberty to

impose a tax or duty upon the importation of such persons as any of

the States now existing shall think proper to admit; and this

liberty was granted, I presume, upon two considerations: the first

was, that, until the time arrived when they might abolish the

importation of slaves, they might have an opportunity of evidencing

their sentiments on the policy and humanity of such a trade; the

other was, that they might be taxed in due proportion with other

articles imported; for, if the possessor will consider them as

property, of course they are of value, and ought to be paid for."

After a very considerable discussion, in which this section of the

Constitution was referred to by various members, and the

constitutionality of Mr. Parker's motion admitted, with the advice of

Mr. Madison his colleague, Mr. Parker consented to withdraw his motion.

In 1794, "An Act to prohibit the carrying on the slave-trade from the

United States to any foreign place or country" was passed (Stat. 1794,

c. 11). In 1800, an Act in addition to the last was passed (Stat. 1800,

c. 51). That both these laws were framed with reference to this section

of the Constitution is apparent, because the latter Act expressly

refers to it. Sec. 6 reads thus, "That nothing in this Act contained

shall be construed to authorize the bringing into either of the United

States any person or persons, the importation of whom is, by the

existing laws of such State, prohibited." In 1803 (Stat. 1803, c. 63)

was passed "An Act to prevent the importation of certain persons into

certain States, where, by the laws thereof, their admission is

prohibited."

Sec. 1: "Be it enacted, &c. That, from and after the first day of

April next, no master or captain of any ship or vessel, or any other

person, shall import or bring, or cause to be imported or brought,

any negro, mulatto, or other person of color, not being a native, a

citizen, or registered seaman of the United States, or seamen,

natives of countries beyond the Cape of Good Hope, into any port or

place of the United States, which port or place shall be situated in

any State which by law has prohibited, or shall prohibit, the

admission or importation of such negro, mulatto, or other person of

color," &c. &c.

This Act also is most manifestly framed upon this section of the

Constitution. It renders illegal the importation of any negro, mulatto,

or person of color, into States prohibiting such importation, unless

such negro, &c. is a native, citizen, or registered seaman of the United

States, or native of countries beyond the Cape of Good Hope; that is, it

renders illegal the importation of African negroes into any State whose

laws prohibit such importation. And, as no African negro has yet been

imported as a free laborer, this Act was directed against the African

slave-trade.

And, not to multiply proof, the importation of persons is not to be

prohibited by Congress prior to 1808. On the 2d day of March, 1807,

President Jefferson approved (Stat. 1807, c. 77) "An Act to prohibit the

importation of _slaves_ into any port or place within the jurisdiction

of the United States, from and after the _first day of January_, in the

year of our Lord _one thousand eight hundred and eight_." That is, at

the very earliest day allowed by Const. Art. 1, sec. 9, for the passage

by Congress of an Act prohibiting the importation of persons, a law is

passed totally prohibiting the _importation of slaves_.

RESTORATION OF FUGITIVE SLAVES. (Const. Art. 4, sec. 2.)

On the 12th day of February, 1793 (Stat. 1793, chap. 7), there was

approved "An Act respecting fugitives from justice, and persons escaping

from the service of their masters." This is the law which, for over half

a century, has prescribed the modes in which a runaway slave may be

retaken. It is what is now called "the infamous law of '93." Thousands

of runaway slaves have owed their return to their happy condition to the

beneficent operation of this law, obviously framed, as it is, with an

eye to this constitutional provision.

Sec. 3 provides that,--

"When a person held to labor in any of the United States, or in

either of the territories on the north-west or south of the river

Ohio, under the laws thereof, shall escape into any other of the

said States or territory, the person to whom such labor or service

may be due, his agent or attorney, is hereby empowered to seize or

arrest such fugitive from labor, and to take him or her before any

judge of the circuit or district courts of the United States,

residing or being within the State, or before any magistrate of a

county, city, or town corporate, wherein such seizure or arrest

shall be made; and, upon proof to the satisfaction of such judge or

magistrate, either by oral testimony or affidavit, taken before and

certified by a magistrate of any such State or territory, that the

person so seized or arrested doth, under the laws of the State or

territory from which he or she fled, owe service or labor to the

person claiming him or her, it shall be the duty of such judge or

magistrate to give a certificate thereof to such claimant, his agent

or attorney, which shall be sufficient warrant for removing the said

fugitive from labor to the State or territory from which he or she

fled."

SUPPRESSION OF SLAVE INSURRECTIONS. (Const. Art. 1, sec. 8; Art. 4, sec.

4.)

"An Act to provide for calling forth the militia to execute the laws of

the Union, suppress insurrections, and repel invasions," was approved

May 2, 1792 (Act Const. 1792, chap. 28). Section first provides that,

"_In case of an insurrection in any State_ against the government

thereof, it shall be lawful for the President of the United States, on

application of the legislature of such State, or of the executive (when

the legislature cannot be convened), to call forth such number of the

militia of any other State or States as may be applied for, or as he may

judge sufficient to suppress such insurrection." Precisely the same

language is made use of in Stat. 1795, c. 101. By Act approved March 3,

1807 (Stat. 1807, c. 94), the President is authorized "in _all_ cases of

insurrection," "when it is lawful for him to call forth the militia for

the purpose of suppressing the same," "to employ for the same purpose

such part of the land or naval force of the United States as shall be

judged necessary."

That these laws have been held to include an insurrection of slaves is

indisputable. On receipt of the intelligence of Nat. Turner's

insurrection in Southampton, Va., Col. House, then commanding at

Fortress Monroe, set out with three companies of United States troops,

for the purpose of suppressing the revolt. He was reinforced by a

detachment from the United States ships Warren and Natchez, amounting in

all to about three hundred men. With _our_ troops and _our_ officers we

have actually aided the slaveholder in holding his fellow-man in

slavery! We have actually done what our fathers engaged in the

Constitution that we should do, namely, aid with the national strength

in keeping the slaves in subjection!