BY JAMES MADISON
It were doubtless to be wished, that the power of prohibiting the importation of slaves, had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation. But it is not difficult to account either for this restriction on the general government, or for the manner in which the whole clause is expressed.
It ought to be considered as a great point gained in favor of humanity, that a period of twenty years may terminate for ever within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; that within that period, it will receive a considerable discouragement from the Federal government, and may be totally abolished, by a concurrence of the few States which continue the unnatural traffic, in the prohibitory example which has been given by so great a majority of the Union. Happy would it be for the unfortunate Africans, if an equal prospect lay before them, of being redeemed from the oppressions of their European brethern! Attempts have been made to pervert this clause into an objection against the Const.i.tution, by representing it on one side, as a criminal toleration of an illicit practice; and on another, as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none; but as specimens of the manner and spirit, in which some have thought fit to conduct their opposition to the proposed government.
FEDERALIST, No. 54.
BY JAMES MADISON.
All this is admitted, it will perhaps be said: but does it follow from an admission of numbers for the measure of representation, or of slaves combined with free citizens as a ratio of taxation, that slaves ought to be included in the numerical rule of representation?
Slaves are considered as property, not as persons. They ought therefore, to be comprehended in estimates of taxation, which are founded on property, and to be excluded from representation, which is regulated by a census of persons. This is the objection as I understand it, stated in its full force. I shall be equally candid in stating the reasoning which may be offered on the opposite side. We subscribe to the doctrine, might one of our Southern brethern observe, that representation relates more immediately to persons, and taxation more immediately to property; and we join in the application of this distinction to the case of our slaves.
But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities, being considered by our laws, in some respects as persons, and in other respects as property.
In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty: and chastised in his body by the capricious will of another; the slave may appear to be degraded from the human rank, and cla.s.sed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life, and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others; the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property. The Federal const.i.tution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and property. This is in fact their true character. It is the character bestowed on them by the laws under which they live, and it will not be denied, that these are the proper criterion; because it is only under the pretext, that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.
This question may be placed in another light. It is agreed on all sides, that numbers are the best scale of wealth and taxation, as they are the only proper scale of representation. Would the convention have been impartial or consistent, if they had rejected the slaves from the list of inhabitants, when the shares of representation were to be calculated; and inserted them on the lists when the tariff of contributions was to be adjusted?
Could it be reasonably expected, that the Southern States would concur in a system, which considered their slaves in some degree as men, when burdens were to be imposed, but refused to consider them in the same light, when advantages were to be conferred?
Might not some surprise also be expressed, that those who reproach the Southern States with the, barbarous policy of considering as property a part of their human brethern, should themselves contend, that the government to which all the States are to be parties, ought to consider this unfortunate race more completely in the unnatural light of property, than the very laws of which they complain?
It may be replied, perhaps, that slaves are not included in the estimate of representatives in any of the States possessing them. They neither vote themselves, nor increase the votes of their masters. Upon what principle, then, ought they to be taken into the Federal estimate of representation? In rejecting them altogether, the const.i.tution would, in this respect, have followed the very laws which have been appealed to as the proper guide.
This objection is repelled by a single observation. It is a fundamental principle of the proposed const.i.tution, that as the aggregate number of representatives allotted to the several States is to be determined by a Federal rule, founded on the aggregate number of inhabitants; so, the right of choosing this allotted number in each State, is to be exercised by such part of the inhabitants, as the State itself may designate. The qualifications of which the right of suffrage depends, are not perhaps the same in any two States. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the const.i.tution of the State, who will be included in the census by which the Federal const.i.tution apportions the representatives. In this point of view, the Southern States might retort the complaint, by insisting, that the principle laid down by the convention required that no regard should be had to the policy of particular States towards their own inhabitants; and consequently, that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens. A rigorous adherence, however, to this principle is waived by those who would be gainers by it. All that they ask, is that equal moderation be shown on the other side. Let the case of the slaves be considered, as it is in truth, a peculiar one. Let the compromising expedient of the const.i.tution be annually adopted, which regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants, which regards the _slave_ as divested of two-fifths of the _man_.
DEBATES IN FIRST CONGRESS,
MAY 13, 1789.
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 const.i.tution 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. He hoped such a duty as he moved for would prevent, in some degree, this irrational and inhuman traffic; if so, he should feel happy from the success of his motion.
Mr. Smith (of South Carolina,) hoped that such an important and serious proposition as this would not be hastily adopted; it was a very late moment for the introduction of new subjects. He expected the committee had got through the business, and would rise without discussing any thing further; at least, if gentlemen were determined on considering the present motion, he hoped they would delay for a few days, in order to give time for an examination of the subject. It was certainly a matter big with the most serious consequences to the State he represented; he did not think any one thing that had been discussed was so important to them, and the welfare of the Union, as the question now brought forward, but he was not prepared to enter on any argument, and therefore requested the motion might either be withdrawn or laid on the table.
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. Jackson, (of Geo.) observing the quarter from which this motion came, said it did not surprise him, though it might have that effect on others. He recollected that Virginia was an old settled State, and had her complement of slaves, so she was careless of recruiting her numbers by this means; the natural increase of her imported blacks were sufficient for their purpose; but he thought gentlemen ought to let their neighbors get supplied before they imposed such a burthen upon the importation. He knew this business was viewed in an odious light to the Eastward, because the people were capable of doing their own work, and had no occasion for slaves; but gentlemen will have some feeling for others; they will not try to throw all the weight upon others, who have a.s.sisted in lightening their burdens; they do not wish to charge us for every comfort and enjoyment of life, and at the same time take away the means of procuring them; they do not wish to break us down at once.
He was convinced, from the inapt.i.tude of the motion, and the want of time to consider it, that the candor of the gentleman would induce him to withdraw it for the present; and if ever it came forward again, he hoped it would comprehend the white slaves as well as black, who were imported from all the goals of Europe; wretches, convicted of the most flagrant crimes, were brought in and sold without any duty whatever.
He thought that they ought to be taxed equal to the Africans, and had no doubt but the const.i.tutionality and propriety of such a measure was equally apparent as the one proposed.
Mr. Tucker (of S.C.) thought it unfair to bring in such an important subject at the time when debate was almost precluded. The committee had gone through the impost bill, and the whole Union were impatiently expecting the result of their deliberations, the public must be disappointed and much revenue lost, or this question cannot undergo that full discussion which it deserves.
We have no right, said he, to consider whether the importation of slaves is proper or not; the Const.i.tution gives us no power on that point, it is left to the States to judge of that matter as they see fit. But if it was a business the gentleman was determined to discourage, he ought to have brought his motion forward sooner, and even then not have introduced it without previous notice. He hoped the committee would reject the motion, if it was not withdrawn; he was not speaking so much for the State he represented, as for Georgia, because the State of South Carolina had a prohibitory law, which could be renewed when its limitation expired.
Mr. Parker (of Va.,) had ventured to introduce the subject after full deliberation, and did not like to withdraw it. Although the gentleman from Connecticut (Mr. Sherman) had said, that they ought not to be enumerated with goods, wares, and merchandise, he believed they were looked upon by the African traders in this light, he knew it was degrading the human species to annex that character to them; but he would rather do this than continue the actual evil of importing slaves a moment longer. He hoped Congress would do all that lay in their power to restore to human nature its inherent privileges, and if possible wipe off the stigma which America laboured under. The inconsistency in our principles, with which we are justly charged, should be done away; that we may shew by our actions the pure beneficence of the doctrine we held out to the world in our declaration of independence.
Mr. Sherman (of Ct.,) thought the principles of the motion and the principles of the bill were inconsistent; the principle of the bill was to raise revenue, the principle of the motion to correct a moral evil. Now, considering it as an object of revenue, it would be unjust, because two or three States would bear the whole burthen, while he believed they bore their full proportion of all the rest. He was against receiving the motion into this bill, though he had no objection to taking it up by itself, on the principles of humanity and policy; and therefore would vote against it if it was not withdrawn.
Mr. Ames (of Ma.s.s.,) joined the gentleman last up. No one could suppose him favorable to slavery, he detested it from his soul, but he had some doubts whether imposing a duty on the importation, would not have the appearance of countenancing the practice; it was certainly a subject of some delicacy, and no one appeared to be prepared for the discussion, he therefore hoped the motion would be withdrawn.
Mr. Livermore. Was not against the principle of the motion, but in the present case he conceived it improper. If negroes were goods, wares, or merchandise, they came within the t.i.tle of the bill; if they were not, the bill would be inconsistent: but if they are goods, wares or merchandise, the 5 per cent ad valorum, will embrace the importation; and the duty of 5 per cent is nearly equal to 10 dollars per head, so there is no occasion to add it even on the score of revenue.
Mr. Jackson (of Ga.,) said it was the fashion of the day, to favor the liberty of slaves; he would not go into a discussion of the subject, but he believed it was capable of demonstration that they were better off in their present situation, than they would be if they were manumitted; what are they to do if they are discharged? Work for a living? Experience has shewn us they will not. Examine what is become of those in Maryland, many of them have been set free in that State; did they turn themselves to industry and useful pursuits? No, they turn out common pickpockets, petty larceny villains; and is this mercy, forsooth, to turn them into a way in which they must lose their lives,--for where they are thrown upon the world, void of property and connections, they cannot get their living but by pilfering. What is to be done for compensation? Will Virginia set all her negroes free? Will they give up the money they cost them, and to whom? When this practice comes to be tried there, the sound of liberty will lose those charms which make it grateful to the ravished ear.
But our slaves are not in a worse situation than they were on the coast of Africa; it is not uncommon there for the parents to sell their children in peace; and in war the whole are taken and made slaves together. In these cases it is only a change of one slavery for another; and are they not better here, where they have a master bound by the ties of interest and law to provide for their support and comfort in old age, or infirmity, in which, if they were free, they would sink under the pressure of woe for want of a.s.sistance.
He would say nothing of the partiality of such a tax, it was admitted by the avowed friends of the measure; Georgia in particular would be oppressed. On this account it would be the most odious tax Congress could impose.
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. If the gentleman persisted in having the question determined, he would move the previous question if he was supported.
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. But the gentlemen say that it is improper to connect the two objects, because they do not come within the t.i.tle of the bill. But this objection may be obviated by accommodating the t.i.tle to the contents; there may be some inconsistency in combining the ideas which gentlemen have expressed, that is, considering the human race as a species of property; but the evil does not arise from adopting the clause now proposed, it is from the importation to which it relates. Our object in enumerating persons on paper with merchandise, is to prevent the practice of actually treating them as such, by having them, in future, forming part of the cargoes of goods, wares, and merchandise to be imported into the United States. The motion is calculated to avoid the very evil intimated by the gentleman. It has been said that this tax will be partial and oppressive; but suppose a fair view is taken of this subject, I think we may form a different conclusion. But if it be partial or oppressive, are there not many instances in which we have laid taxes of this nature? Yet are they not thought to be justified by national policy? If any article is warranted on this account, how much more are we authorized to proceed on this occasion? The dictates of humanity, the principles of the people, the national safety and happiness, and prudent policy requires it of us; the const.i.tution has particularly called our attention to it--and of all the articles contained in the bill before us, this is one of the last I should be willing to make a concession upon so far as I was at liberty to go, according to the terms of the const.i.tution or principles of justice--I would not have it understood that my zeal would carry me to disobey the inviolable commands of either.
I understood it had been intimated, that the motion was inconsistent or unconst.i.tutional. I believe, sir, my worthy colleague has formed the words with a particular reference to the const.i.tution; any how, so far as the duty is expressed, it perfectly accords with that instrument; if there are any inconsistencies in it, they may be rectified; I believe the intention is well understood, but I am far from supposing the diction improper. If the description of the persons does not accord with the ideas of the gentleman from Georgia, (Mr.
Jackson,) and his idea is a proper one for the committee to adopt, I see no difficulty in changing the phraseology.
I conceive the const.i.tution, 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. If gentlemen are apprehensive of oppression from the weight of the tax, let them make an estimate of its proportion, and they will find that it very little exceeds five per cent, ad valorem, so that they will gain very little by having them thrown into that ma.s.s of articles, whilst by selecting them in the manner proposed, we shall fulfil the prevailing expectation of our fellow citizens, and perform our duty in executing the purposes of the const.i.tution. It is to be hoped that by expressing a national disapprobation of this trade, we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves.
I do not wish to say any thing harsh, to the hearing of gentlemen who entertain different sentiments from me, or different sentiments from those I represent; but if there is any one point in which it is clearly the policy of this nation, so far as we const.i.tutionally can, to vary the practice obtaining under some of the State governments, it is this; but it is certain a majority of the States are opposed to this practice, therefore, upon principle, we ought to discountenance it as far as is in our power.
If I was not afraid of being told that the representatives of the several States, are the best able to judge of what is proper and conducive to their particular prosperity, I should venture to say that it is as much the interest of Georgia and South Carolina, as of any in the Union. Every addition they receive to their number of slaves, tends to weaken them and renders them less capable of self defence. In case of hostilities with foreign nations, they will be the means of inviting attack instead of repelling invasion. It is a necessary duty of the general government to protect every part of the empire against danger, as well internal as external; every thing therefore which tends to increase this danger, though it may be a local affair, yet if it involves national expense or safety, becomes of concern to every part of the Union, and is a proper subject for the consideration of those charged with the general administration of the government. I hope, in making these observations, I shall not be understood to mean that a proper attention ought not to be paid to the local opinions and circ.u.mstances of any part of the United States, or that the particular representatives are not best able to judge of the sense of their immediate const.i.tuents.
If we examine the proposal measure by the agreement there is between it, and the existing State laws, it will show us that it is patronized by a very respectable part of the Union. I am informed that South Carolina has prohibited the importation of slaves for several years yet to come; we have the satisfaction then of reflecting that we do nothing more than their own laws do at this moment. This is not the case with one State. I am sorry that her situation is such as to seem to require a population of this nature, but it is impossible in the nature of things, to consult the national good without doing what we do not wish to do, to some particular part. Perhaps gentlemen contend against the introduction of the clause, on too slight grounds. If it does not conform with the t.i.tle of the bill, alter the latter; if it does not conform to the precise terms of the const.i.tution, amend it.
But if it will tend to delay the whole bill, that perhaps will be the best reason for making it the object of a separate one. If this is the sense of the committee I shall submit.
Mr. Gerry (of Ma.s.s.) thought all duties ought to be laid as equal as possible. He had endeavored to enforce this principle yesterday, but without the success he wished for, he was bound by the principles of justice therefore to vote for the proposition; but if the committee were desirous of considering the subject fully by itself, he had no objection, but he thought when gentlemen laid down a principle, they ought to support it generally.
Mr. Burke (of S.C.) said, gentlemen were contending for nothing; that the value of a slave averaged about 80, and the duty on that sum at five per cent, would be ten dollars, as congress could go no farther than that sum, he conceived it made not difference whether they were enumerated or left in the common ma.s.s.
Mr. Madison, (of Va.) If we contend for nothing, the gentlemen who are opposed to us do not contend for a great deal; but the question is, whether the five percent ad valorem, on all articles imported, will have any operation at all upon the introduction of slaves, unless we make a particular enumeration on this account; the collector may mistake, for he would not presume to apply the term goods, wares, and merchandise to any person whatsoever. But if that general definition of goods, wares, and merchandise are supposed to include African Slaves, why may we not particularly enumerate them, and lay the duty pointed out by the Const.i.tution, which, as gentlemen tell us, is no more than five per cent upon their value; this will not increase the burden upon any, but it will be that manifestation of our sense, expected by our const.i.tuents, and demanded by justice and humanity.
Mr. Bland (of Va.) had no doubt of the propriety or good policy of this measure. He had made up his mind upon it, he wished slaves had never been introduced into America; but if it was impossible at this time to cure the evil, he was very willing to join in any measures that would prevent its extending farther. He had some doubts whether the prohibitory laws of the States were not in part repealed. Those who had endeavored to discountenance this trade, by laying a duty on the importation, were prevented by the Const.i.tution from continuing such regulation, which declares, that no State shall lay any impost or duties on imports. If this was the case, and he suspected pretty strongly that it was, the necessity of adopting the proposition of his colleague was not apparent.
Mr. Sherman (of Ct.) said, the Const.i.tution does not consider these persons as a species of property; it speaks of them as persons, and says, that a tax or duty may be imposed on the importation of them into any State which shall permit the same, but they have no power to prohibit such importation for twenty years. But Congress have power to declare upon what terms persons coming into the United States shall be ent.i.tled to citizenship; the rule of naturalization must however be uniform. He was convinced there were others ought to be regulated in this particular, the importation of whom was of an evil tendency, he meant convicts particularly. He thought that some regulation respecting them was also proper; but it being a different subject, it ought to be taken up in a different manner.
Mr. Madison (of Va.) was led to believe, from the observation that had fell from the gentlemen, that it would be best to make this the subject of a distinct bill: he therefore wished his colleague would withdraw his motion, and move in the house for leave to bring in a bill on the same principles.
Mr. Parker (of Va.) consented to withdraw his motion, under a conviction that the house was fully satisfied of its propriety. He knew very well that these persons were neither goods, nor wares, but they were treated as articles of merchandise. Although he wished to get rid of this part of his property, yet he should not consent to deprive other people of theirs by any act of his without their consent.
The committee rose, reported progress, and the house adjourned.
FEBRUARY 11th, 1790.
Mr. Lawrance (of New York,) presented an address from the society of Friends, in the City of New York; in which they set forth their desire of co-operating with their Southern brethren.