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 pa.s.sed.
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, that no capitation or other direct tax should be 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 a.s.sertion, 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 the 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 Const.i.tution 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 degree 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 would, 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.
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 a.s.sume, 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 emanc.i.p.ation general. But acts of a.s.sembly pa.s.sed, 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 p.r.o.nounce 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 emanc.i.p.ation. 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 emanc.i.p.ated. As we ought with grat.i.tude to admire 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 emanc.i.p.ation. 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. 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 enfranchis.e.m.e.nt 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 pa.s.sed 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 emanc.i.p.ation is inserted. But another clause of the Const.i.tution proves the absurdity of the supposition. The words of the clause are, "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." 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 Const.i.tution, 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 a.s.sert, that eight States out of twelve, for more than three months, voted for requiring two-thirds of the members present in each house to pa.s.s 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.
Mr. Madison. I was struck with surprise when I heard him express himself alarmed with respect to the emanc.i.p.ation of slaves. Let me ask, if they should even attempt it, if it will not be an usurpation of power? There is no power to warrant it, in that paper. If there be, I know it not. But why should it be done? Says the honorable gentleman, for the general welfare--it will infuse strength into our system. Can any member of this committee suppose, that it will increase our strength? Can any one believe, that the American councils will come into a measure which will strip them of their property, discourage and alienate the affections of five-thirteenths of the Union? Why was nothing of this sort aimed at before? I believe such an idea never entered into an American breast, nor do I believe it ever will, unless it will enter into the heads of those gentlemen who subst.i.tute unsupported suspicions for reasons.
Mr. Henry. He asked me where was the power of emanc.i.p.ating slaves? I say it will be implied, unless implication be prohibited. He admits that the power of granting pa.s.sports will be in the new Congress without the insertion of this restriction--yet he can shew me nothing like such a power granted in that Const.i.tution. Notwithstanding he admits their right to this power by implication, he says that I am unfair and uncandid in my deduction, that they can emanc.i.p.ate our slaves, though the word emanc.i.p.ation be not mentioned in it. They can exercise power by implication in one instance, as well as in another.
Thus, by the gentleman"s own argument, they can exercise the power though it be not delegated.
Mr. Z. Johnson. They tell us that they see a progressive danger of bringing about emanc.i.p.ation. The principle has begun since the revolution. Let us do what we will, it will come round. Slavery has been the foundation of that impiety and dissipation, which have been so much disseminated among our countrymen. If it were totally abolished, it would do much good.
NORTH CAROLINA CONVENTION.
The first three clauses of the second section read.
Mr. GOUDY. Mr. Chairman, this clause of taxation will give an advantage to some States, over the others. It will be oppressive to the Southern States. Taxes are equal to our representation. To augment our taxes and increase our burthens, our negroes are to be represented. If a State has fifty thousand negroes, she is to send one representative for them. I wish not to be represented with negroes, especially if it increases my burthens.
Mr. Davie. Mr. Chairman, I will endeavor to obviate what the gentleman last up has said. I wonder to see gentlemen so precipitate and hasty on a subject of such awful importance. It ought to be considered, that _some_ of _us_ are slow of apprehension, not having those quick conceptions, and luminous understandings, of which other gentlemen may be possessed. The gentleman "does not wish to be represented with negroes." This, sir, is an unhappy species of population, but cannot at present alter their situation. The Eastern States had great jealousies on this subject. They insisted that their cows and horses were equally ent.i.tled to representation; that the one was property as well as the other. It became our duty on the other hand, to acquire as much weight as possible in the legislation of the Union; and as the Northern States were more populous in whites, this only could be done by insisting that a certain proportion of our slaves should make a part of the computed population. It was attempted to form a rule of representation from a compound ratio of wealth and population; but, on consideration, it was found impracticable to determine the comparative value of lands, and other property, in so extensive a territory, with any degree of accuracy; and population alone was adopted as the only practicable rule or criterion of representation. It was urged by the deputies of the Eastern States, that a representation of two-fifths would of little utility, and that their entire representation would be unequal and burthensome. That in a time of war, slaves rendered a country more vulnerable, while its defence devolved upon its _free_ inhabitants. On the other hand, we insisted, that in time of peace they contributed by their labor to the general wealth as well as other members of the community. That as rational beings they had a right of representation, and in some instances might be highly useful in war.
On these principles, the Eastern States gave the matter up, and consented to the regulation as it has been read. I hope these reasons will appear satisfactory. It is the same rule or principle which was proposed some years ago by Congress, and a.s.sented to by twelve of the States. It may wound the delicacy of the gentleman from Guilford, (Mr.
GOUDY,) but I hope he will endeavor to accommodate his feelings to the interests and circ.u.mstances of his country.
Mr. JAMES GALLOWAY said, that he did not object to the representation of negroes, so much as he did to the fewness of the number of representatives. He was surprised how we came to have but five, including those intended to represent negroes. That in his humble opinion North Carolina was ent.i.tled to that number independent of the negroes.
First clause of the 9th section read.
Mr. J. M"DOWALL wished to hear the reasons of this restriction.
Mr. SPAIGHT answered that there was a contest between the Northern and Southern States--that the Southern States, whose princ.i.p.al support depended on the labor of slaves, would not consent to the desire of the Northern States to exclude the importation of slaves absolutely.
That South Carolina and Georgia insisted on this clause, as they were now in want of hands to cultivate their lands: That in the course of twenty years they would be fully supplied: That the trade would be abolished then, and that in the mean time some tax or duty might be laid on.
Mr. M"DOWALL replied, that the explanation was just such as he expected, and by no means satisfactory to him, and that he looked upon it as a very objectionable part of the system.
Mr. IREDELL. Mr. Chairman, I rise to express sentiments similar to those of the gentleman from Craven. For my part, were it practicable to put an end to the importation of slaves immediately, it would give me the greatest pleasure, for it certainly is a trade utterly inconsistent with the rights of humanity, and under which great cruelties have been exercised. When the entire abolition of slavery takes place, it will be an event which must be pleasing to every generous mind, and every friend of human nature; but we often wish for things which are not attainable. It was the wish of a great majority of the Convention to put an end to the trade immediately, but the States of South Carolina and Georgia would not agree to it. Consider then what would be the difference between our present situation in this respect, if we do not agree to the Const.i.tution, and what it will be if we do agree to it. If we do not agree to it, do we remedy the evil? No, sir, we do not; for if the Const.i.tution be not adopted, it will be in the power of every State to continue it forever. They may or may not abolish it at their discretion. But if we adopt the Const.i.tution, the trade must cease after twenty years, if Congress declare so, whether particular States please so or not: surely, then, we gain by it. This was the utmost that could be obtained. I heartily wish more could have been done. But as it is, this government is n.o.bly distinguished above others by that very provision. Where is there another country in which such a restriction prevails? We, therefore, sir, set an example of humanity by providing for the abolition of this inhuman traffic, though at a distant period. I hope, therefore, that this part of the Const.i.tution will not be condemned, because it has not stipulated for what it was impracticable to obtain.
Mr. SPAIGHT further explained the clause. That the limitation of this trade to the term of twenty years, was a compromise between the Eastern States and the Southern States. South Carolina and Georgia wished to extend the term. The Eastern States insisted on the entire abolition of the trade. That the State of North Carolina had not thought proper to pa.s.s any law prohibiting the importation of slaves, and therefore its delegation in the convention did not think themselves authorized to contend for an immediate prohibition of it.
Mr. IREDELL added to what he had said before, that the States of Georgia and South Carolina had lost a great many slaves during the war, and that they wished to supply the loss.
Mr. GALLOWAY. Mr. Chairman, the explanation given to this clause does not satisfy my mind. I wish to see this abominable trade put an end to. But in case it be thought proper to continue this abominable traffic for twenty years, yet I do not wish to see the tax on the importation extended to all persons whatsoever. Our situation is different from the people to the North. We want citizens; they do not.
Instead of laying a tax, we ought to a give a bounty, to encourage foreigners to come among us. With respect to the abolition of slavery, it requires the utmost consideration. The property of the Southern States consists princ.i.p.ally of slaves. If they mean to do away slavery altogether, this property will be destroyed. I apprehend it means to bring forward manumission. If we must manumit our slaves, what country shall we send them to? It is impossible for us to be happy if, after manumission, they are to stay among us.
Mr. IREDELL. Mr. Chairman, the worthy gentleman, I believe, has misunderstood this clause, which runs in the following words: "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 on _such importation_, not exceeding ten dollars for each person."
Now, sir, observe that the Eastern States, who long ago have abolished slavery, did not approve of the expression _slaves_; they therefore used another that answered the same purpose. The committee will observe the distinction between the two words migration and importation. The first part of the clause will extend to persons who come into the country as free people, or are brought as slaves, but the last part extends to slaves only. The word _migration_ refers to free persons; but the word _importation_ refers to slaves, because free people cannot be said to be imported. The tax, therefore, is only to be laid on slaves who are imported, and not on free persons who migrate. I further beg leave to say, that the gentleman is mistaken in another thing. He seems to say that this extends to the abolition of slavery. Is there anything in this const.i.tution which says that Congress shall have it in their power to abolish the slavery of those slaves who are now in the country? Is it not the plain meaning of it, that after twenty years they may prevent the future importation of slaves? It does not extend to those now in the country. There is another circ.u.mstance to be observed. There is no authority vested in congress to restrain the States in the interval of twenty years, from doing what they please. If they wish to inhibit such importation, they may do so. Our next a.s.sembly may put an entire end to the importation of slaves.
Article fourth. The first section and two first clauses of the second section read without observation.
The last clause read--
Mr. IREDELL begged leave to explain the reason of this clause. In some of the Northern States, they have emanc.i.p.ated all their slaves. If any of our slaves, said he, go there and remain there a certain time, they would, by the present laws, be ent.i.tled to their freedom, so that their masters could not get them again. This would be extremely prejudicial to the inhabitants of the Southern States, and to prevent it, this clause is inserted in the Const.i.tution. Though the word _slave_ be not mentioned, this is the meaning of it. The Northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word _slave_ to be mentioned.
The rest of the forth article read without observation.
Mr. IREDELL. It is however to be observed, that the first and forth clauses in the ninth section of the first article, are protected from any alteration until the year 1808; and in order that no consolidation should take place, it is provided, that no State shall, by any amendment or alteration, be ever deprived of an equal suffrage in the Senate without its own consent. The two first prohibitions are with respect to the census, according to which direct taxes are imposed, and with respect to the importation of slaves. As to the first, it must be observed, that there is a material difference between the Northern and Southern States. The Northern States have been much longer settled, and are much fuller of people than the Southern, but have not land in equal proportion, nor scarcely any slaves. The subject of this article was regulated with great difficulty, and by a spirit of concession which it would not be prudent to disturb for a good many years. In twenty years there will probably be a great alteration, and then the subject may be re-considered with less difficulty and greater coolness. In the mean time, the compromise was upon the best footing that could be obtained. A compromise likewise took place in regard to the importation of slaves. It is probable that all the members reprobated this inhuman traffic, but those of South Carolina and Georgia would not consent to an immediate prohibition of it; one reason of which was, that during the last war they lost a vast number of negroes, which loss they wish to supply. In the mean time, it is left to the States to admit or prohibit the importation, and Congress may impose a limited duty upon it.
SOUTH CAROLINA CONVENTION.
Hon. RAWLINS LOWNDES. In the first place, what cause was there for jealously of our importing negroes? Why confine us to twenty years, or rather why limit us at all? For his part he thought this trade could be justified on the principles of religion, humanity, and justice; for certainly to translate a set of human beings from a bad country to a better, was fulfilling every part of these principles. But they don"t like our slaves, because they have none themselves; and therefore want to exclude us from this great advantage; why should the Southern States allow of this, without the consent of nine States?
Judge PENDLETON observed, that only three States, Georgia, South Carolina, and North Carolina, allowed the importation of negroes.
Virginia had a clause in her Const.i.tution for this purpose, and Maryland, he believed, even before the war, prohibited them.
Mr. LOWNDES continued--that we had a law prohibiting the importation of negroes for three years, a law he greatly approved of; but there was no reason offered, why the Southern States might not find it necessary to alter their conduct, and open their ports. Without negroes this State would degenerate into one of the most contemptible in the Union; and cited an expression that fell from Gen. PINCKNEY on a former debate, that whilst there remained one acre of swamp land in South Carolina he should raise his voice against restricting the importation of negroes. Even in granting the importation for twenty years, care had been taken to make us pay for this indulgence, each negro being liable, on importation, to pay a duty not exceeding ten dollars, and, in addition to this, were liable to a capitation tax.