Chapter XII: The Essentials in the Struggle (3)

[36] _Journals of Cong._, 1781, June 25; July 18; Sept. 21,
27; Nov. 8, 13, 30; Dec. 4.

[37] _Ibid._, 1782-3, pp. 418-9, 425.

[38] _Annals of Cong._, 1 Cong. 2 sess. p. 1183.

[39] Cf. above, chapters ii., iii., iv.

* * * * *

_Chapter VI_

THE FEDERAL CONVENTION. 1787.

32. The First Proposition.
33. The General Debate.
34. The Special Committee and the "Bargain."
35. The Appeal to the Convention.
36. Settlement by the Convention.
37. Reception of the Clause by the Nation.
38. Attitude of the State Conventions.
39. Acceptance of the Policy.

32. ~The First Proposition.~ Slavery occupied no prominent place in the Convention called to remedy the glaring defects of the Confederation, for the obvious reason that few of the delegates thought it expedient to touch a delicate subject which, if let alone, bade fair to settle itself in a manner satisfactory to all. Consequently, neither slavery nor the slave-trade is specifically mentioned in the delegates' credentials of any of the States, nor in Randolph's, Pinckney's, or Hamilton's plans, nor in Paterson's propositions. Indeed, the debate from May 14 to June 19, when the Committee of the Whole reported, touched the subject only in the matter of the ratio of representation of slaves. With this same exception, the report of the Committee of the Whole contained no reference to slavery or the slave-trade, and the twenty-three resolutions of the Convention referred to the Committee of Detail, July 23 and 26, maintain the same silence.

The latter committee, consisting of Rutledge, Randolph, Gorham, Ellsworth, and Wilson, reported a draft of the Constitution August 6, 1787. The committee had, in its deliberations, probably made use of a draft of a national Constitution made by Edmund Randolph.[1] One clause of this provided that "no State shall lay a duty on imports;" and, also, "1. No duty on exports. 2. No prohibition on such inhabitants as the United States think proper to admit. 3. No duties by way of such prohibition." It does not appear that any reference to Negroes was here intended. In the extant copy, however, notes in Edward Rutledge's handwriting change the second clause to "No prohibition on such inhabitants or people as the several States think proper to admit."[2] In the report, August 6, these clauses take the following form:--

"Article VII. Section 4. No tax or duty shall be laid by the
legislature on articles exported from any state; nor on the
migration or importation of such persons as the several states
shall think proper to admit; nor shall such migration or
importation be prohibited."[3]

33. ~The General Debate.~ This, of course, referred both to immigrants ("migration") and to slaves ("importation").[4] Debate on this section began Tuesday, August 22, and lasted two days. Luther Martin of Maryland precipitated the discussion by a proposition to alter the section so as to allow a prohibition or tax on the importation of slaves. The debate immediately became general, being carried on principally by Rutledge, the Pinckneys, and Williamson from the Carolinas; Baldwin of Georgia; Mason, Madison, and Randolph of Virginia; Wilson and Gouverneur Morris of Pennsylvania; Dickinson of Delaware; and Ellsworth, Sherman, Gerry, King, and Langdon of New England.[5]

In this debate the moral arguments were prominent. Colonel George Mason of Virginia denounced the traffic in slaves as "infernal;" Luther Martin of Maryland regarded it as "inconsistent with the principles of the revolution, and dishonorable to the American character." "Every principle of honor and safety," declared John Dickinson of Delaware, "demands the exclusion of slaves." Indeed, Mason solemnly averred that the crime of slavery might yet bring the judgment of God on the nation. On the other side, Rutledge of South Carolina bluntly declared that religion and humanity had nothing to do with the question, that it was a matter of "interest" alone. Gerry of Massachusetts wished merely to refrain from giving direct sanction to the trade, while others contented themselves with pointing out the inconsistency of condemning the slave-trade and defending slavery.

The difficulty of the whole argument, from the moral standpoint, lay in the fact that it was completely checkmated by the obstinate attitude of South Carolina and Georgia. Their delegates--Baldwin, the Pinckneys, Rutledge, and others--asserted flatly, not less than a half-dozen times during the debate, that these States "can never receive the plan if it prohibits the slave-trade;" that "if the Convention thought" that these States would consent to a stoppage of the slave-trade, "the expectation is vain."[6] By this stand all argument from the moral standpoint was virtually silenced, for the Convention evidently agreed with Roger Sherman of Connecticut that "it was better to let the Southern States import slaves than to part with those States."

In such a dilemma the Convention listened not unwillingly to the _non possumus_ arguments of the States' Rights advocates. The "morality and wisdom" of slavery, declared Ellsworth of Connecticut, "are considerations belonging to the States themselves;" let every State "import what it pleases;" the Confederation has not "meddled" with the question, why should the Union? It is a dangerous symptom of centralization, cried Baldwin of Georgia; the "central States" wish to be the "vortex for everything," even matters of "a local nature." The national government, said Gerry of Massachusetts, had nothing to do with slavery in the States; it had only to refrain from giving direct sanction to the system. Others opposed this whole argument, declaring, with Langdon of New Hampshire, that Congress ought to have this power, since, as Dickinson tartly remarked, "The true question was, whether the national happiness would be promoted or impeded by the importation; and this question ought to be left to the national government, not to the states particularly interested."

Beside these arguments as to the right of the trade and the proper seat of authority over it, many arguments of general expediency were introduced. From an economic standpoint, for instance, General C.C. Pinckney of South Carolina "contended, that the importation of slaves would be for the interest of the whole Union. The more slaves, the more produce." Rutledge of the same State declared: "If the Northern States consult their interest, they will not oppose the increase of slaves, which will increase the commodities of which they will become the carriers." This sentiment found a more or less conscious echo in the words of Ellsworth of Connecticut, "What enriches a part enriches the whole." It was, moreover, broadly hinted that the zeal of Maryland and Virginia against the trade had an economic rather than a humanitarian motive, since they had slaves enough and to spare, and wished to sell them at a high price to South Carolina and Georgia, who needed more. In such case restrictions would unjustly discriminate against the latter States. The argument from history was barely touched upon. Only once was there an allusion to "the example of all the world" "in all ages" to justify slavery,[7] and once came the counter declaration that "Greece and Rome were made unhappy by their slaves."[8] On the other hand, the military weakness of slavery in the late war led to many arguments on that score. Luther Martin and George Mason dwelt on the danger of a servile class in war and insurrection; while Rutledge hotly replied that he "would readily exempt the other states from the obligation to protect the Southern against them;" and Ellsworth thought that the very danger would "become a motive to kind treatment." The desirability of keeping slavery out of the West was once mentioned as an argument against the trade: to this all seemed tacitly to agree.[9]

Throughout the debate it is manifest that the Convention had no desire really to enter upon a general slavery argument. The broader and more theoretic aspects of the question were but lightly touched upon here and there. Undoubtedly, most of the members would have much preferred not to raise the question at all; but, as it was raised, the differences of opinion were too manifest to be ignored, and the Convention, after its first perplexity, gradually and perhaps too willingly set itself to work to find some "middle ground" on which all parties could stand. The way to this compromise was pointed out by the South. The most radical pro-slavery arguments always ended with the opinion that "if the Southern States were let alone, they will probably of themselves stop importations."[10] To be sure, General Pinckney admitted that, "candidly, he did not think South Carolina would stop her importations of slaves in any short time;" nevertheless, the Convention "observed," with Roger Sherman, "that the abolition of slavery seemed to be going on in the United States, and that the good sense of the several states would probably by degrees complete it." Economic forces were evoked to eke out moral motives: when the South had its full quota of slaves, like Virginia it too would abolish the trade; free labor was bound finally to drive out slave labor. Thus the chorus of "_laissez-faire_" increased; and compromise seemed at least in sight, when Connecticut cried, "Let the trade alone!" and Georgia denounced it as an "evil." Some few discordant notes were heard, as, for instance, when Wilson of Pennsylvania made the uncomforting remark, "If South Carolina and Georgia were themselves disposed to get rid of the importation of slaves in a short time, as had been suggested, they would never refuse to unite because the importation might be prohibited."

With the spirit of compromise in the air, it was not long before the general terms were clear. The slavery side was strongly intrenched, and had a clear and definite demand. The forces of freedom were, on the contrary, divided by important conflicts of interest, and animated by no very strong and decided anti-slavery spirit with settled aims. Under such circumstances, it was easy for the Convention to miss the opportunity for a really great compromise, and to descend to a scheme that savored unpleasantly of "log-rolling." The student of the situation will always have good cause to believe that a more sturdy and definite anti-slavery stand at this point might have changed history for the better.

34. ~The Special Committee and the "Bargain."~ Since the debate had, in the first place, arisen from a proposition to tax the importation of slaves, the yielding of this point by the South was the first move toward compromise. To all but the doctrinaires, who shrank from taxing men as property, the argument that the failure to tax slaves was equivalent to a bounty, was conclusive. With this point settled, Randolph voiced the general sentiment, when he declared that he "was for committing, in order that some middle ground might, if possible, be found." Finally, Gouverneur Morris discovered the "middle ground," in his suggestion that the whole subject be committed, "including the clauses relating to taxes on exports and to a navigation act. These things," said he, "may form a bargain among the Northern and Southern States." This was quickly assented to; and sections four and five, on slave-trade and capitation tax, were committed by a vote of 7 to 3,[11] and section six, on navigation acts, by a vote of 9 to 2.[12] All three clauses were referred to the following committee: Langdon of New Hampshire, King of Massachusetts, Johnson of Connecticut, Livingston of New Jersey, Clymer of Pennsylvania, Dickinson of Delaware, Martin of Maryland, Madison of Virginia, Williamson of North Carolina, General Pinckney of South Carolina, and Baldwin of Georgia.

The fullest account of the proceedings of this committee is given in Luther Martin's letter to his constituents, and is confirmed in its main particulars by similar reports of other delegates. Martin writes: "A committee of _one_ member from each state was chosen by ballot, to take this part of the system under their consideration, and to endeavor to agree upon some report which should reconcile those states [i.e., South Carolina and Georgia]. To this committee also was referred the following proposition, which had been reported by the committee of detail, viz.: 'No navigation act shall be passed without the assent of two thirds of the members present in each house'--a proposition which the staple and commercial states were solicitous to retain, lest their commerce should be placed too much under the power of the Eastern States, but which these last States were as anxious to reject. This committee--of which also I had the honor to be a member--met, and took under their consideration the subjects committed to them. I found the _Eastern_ States, notwithstanding their _aversion to slavery_, were very willing to indulge the Southern States at least with a temporary liberty to prosecute the slave trade, provided the Southern States would, in their turn, gratify _them_, by laying no restriction on navigation acts; and after a very little time, the committee, by a great majority, agreed on a report, by which the general government was to be prohibited from preventing the importation of slaves for a limited time, and the restrictive clause relative to navigation acts was to be omitted."[13]

That the "bargain" was soon made is proven by the fact that the committee reported the very next day, Friday, August 24, and that on Saturday the report was taken up. It was as follows: "Strike out so much of the fourth section as was referred to the committee, and insert 'The migration or importation of such persons as the several states, now existing, shall think proper to admit, shall not be prohibited by the legislature prior to the year 1800; but a tax or duty may be imposed on such migration or importation, at a rate not exceeding the average of the duties laid on imports.' The fifth section to remain as in the report. The sixth section to be stricken out."[14]

35. ~The Appeal to the Convention.~ The ensuing debate,[15] which lasted only a part of the day, was evidently a sort of appeal to the House on the decisions of the committee. It throws light on the points of disagreement. General Pinckney first proposed to extend the slave-trading limit to 1808, and Gorham of Massachusetts seconded the motion. This brought a spirited protest from Madison: "Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the American character than to say nothing about it in the Constitution."[16] There was, however, evidently another "bargain" here; for, without farther debate, the South and the East voted the extension, 7 to 4, only New Jersey, Pennsylvania, Delaware, and Virginia objecting. The ambiguous phraseology of the whole slave-trade section as reported did not pass without comment; Gouverneur Morris would have it read: "The importation of slaves into North Carolina, South Carolina, and Georgia, shall not be prohibited," etc.[17] This emendation was, however, too painfully truthful for the doctrinaires, and was, amid a score of objections, withdrawn. The taxation clause also was manifestly too vague for practical use, and Baldwin of Georgia wished to amend it by inserting "common impost on articles not enumerated," in lieu of the "average" duty.[18] This minor point gave rise to considerable argument: Sherman and Madison deprecated any such recognition of property in man as taxing would imply; Mason and Gorham argued that the tax restrained the trade; while King, Langdon, and General Pinckney contented themselves with the remark that this clause was "the price of the first part." Finally, it was unanimously agreed to make the duty "not exceeding ten dollars for each person."[19]

Southern interests now being safe, some Southern members attempted, a few days later, to annul the "bargain" by restoring the requirement of a two-thirds vote in navigation acts. Charles Pinckney made the motion, in an elaborate speech designed to show the conflicting commercial interests of the States; he declared that "The power of regulating commerce was a pure concession on the part of the Southern States."[20] Martin and Williamson of North Carolina, Butler of South Carolina, and Mason of Virginia defended the proposition, insisting that it would be a dangerous concession on the part of the South to leave navigation acts to a mere majority vote. Sherman of Connecticut, Morris of Pennsylvania, and Spaight of North Carolina declared that the very diversity of interest was a security. Finally, by a vote of 7 to 4, Maryland, Virginia, North Carolina, and Georgia being in the minority, the Convention refused to consider the motion, and the recommendation of the committee passed.[21]

When, on September 10, the Convention was discussing the amendment clause of the Constitution, the ever-alert Rutledge, perceiving that the results of the laboriously settled "bargain" might be endangered, declared that he "never could agree to give a power by which the articles relating to slaves might be altered by the states not interested in that property."[22] As a result, the clause finally adopted, September 15, had the proviso: "Provided, that no amendment which may be made prior to the year 1808 shall in any manner affect the 1st and 4th clauses in the 9th section of the 1st article."[23]

36. ~Settlement by the Convention.~ Thus, the slave-trade article of the Constitution stood finally as follows:--

"Article I. Section 9. The Migration or Importation of such
Persons as any of the States now existing shall think proper to
admit, shall not be prohibited by the Congress prior to the Year
one thousand eight hundred and eight, but a Tax or duty may be
imposed on such Importation, not exceeding ten dollars for each
Person."

This settlement of the slavery question brought out distinct differences of moral attitude toward the institution, and yet differences far from hopeless. To be sure, the South apologized for slavery, the Middle States denounced it, and the East could only tolerate it from afar; and yet all three sections united in considering it a temporary institution, the corner-stone of which was the slave-trade. No one of them had ever seen a system of slavery without an active slave-trade; and there were probably few members of the Convention who did not believe that the foundations of slavery had been sapped merely by putting the abolition of the slave-trade in the hands of Congress twenty years hence. Here lay the danger; for when the North called slavery "temporary," she thought of twenty or thirty years, while the "temporary" period of the South was scarcely less than a century. Meantime, for at least a score of years, a policy of strict _laissez-faire_, so far as the general government was concerned, was to intervene. Instead of calling the whole moral energy of the people into action, so as gradually to crush this portentous evil, the Federal Convention lulled the nation to sleep by a "bargain," and left to the vacillating and unripe judgment of the States one of the most threatening of the social and political ills which they were so courageously seeking to remedy.

37. ~Reception of the Clause by the Nation.~ When the proposed Constitution was before the country, the slave-trade article came in for no small amount of condemnation and apology. In the pamphlets of the day it was much discussed. One of the points in Mason's "Letter of Objections" was that "the general legislature is restrained from prohibiting the further importation of slaves for twenty odd years, though such importations render the United States weaker, more vulnerable, and less capable of defence."[24] To this Iredell replied, through the columns of the _State Gazette_ of North Carolina: "If all the States had been willing to adopt this regulation [i.e., to prohibit the slave-trade], I should as an individual most heartily have approved of it, because even if the importation of slaves in fact rendered us stronger, less vulnerable and more capable of defence, I should rejoice in the prohibition of it, as putting an end to a trade which has already continued too long for the honor and humanity of those concerned in it. But as it was well known that South Carolina and Georgia thought a further continuance of such importations useful to them, and would not perhaps otherwise have agreed to the new constitution, those States which had been importing till they were satisfied, could not with decency have insisted upon their relinquishing advantages themselves had already enjoyed. Our situation makes it necessary to bear the evil as it is. It will be left to the future legislatures to allow such importations or not. If any, in violation of their clear conviction of the injustice of this trade, persist in pursuing it, this is a matter between God and their own consciences. The interests of humanity will, however, have gained something by the prohibition of this inhuman trade, though at a distance of twenty odd years."[25]

"Centinel," representing the Quaker sentiment of Pennsylvania, attacked the clause in his third letter, published in the _Independent Gazetteer, or The Chronicle of Freedom_, November 8, 1787: "We are told that the objects of this article are slaves, and that it is inserted to secure to the southern states the right of introducing negroes for twenty-one years to come, against the declared sense of the other states to put an end to an odious traffic in the human species, which is especially scandalous and inconsistent in a people, who have asserted their own liberty by the sword, and which dangerously enfeebles the districts wherein the laborers are bondsmen. The words, dark and ambiguous, such as no plain man of common sense would have used, are evidently chosen to conceal from Europe, that in this enlightened country, the practice of slavery has its advocates among men in the highest stations. When it is recollected that no poll tax can be imposed on _five_ negroes, above what _three_ whites shall be charged; when it is considered, that the imposts on the consumption of Carolina field negroes must be trifling, and the excise nothing, it is plain that the proportion of contributions, which can be expected from the southern states under the new constitution, will be unequal, and yet they are to be allowed to enfeeble themselves by the further importation of negroes till the year 1808. Has not the concurrence of the five southern states (in the convention) to the new system, been purchased too dearly by the rest?"[26]

Noah Webster's "Examination" (1787) addressed itself to such Quaker scruples: "But, say the enemies of slavery, negroes may be imported for twenty-one years. This exception is addressed to the quakers, and a very pitiful exception it is. The truth is, Congress cannot prohibit the importation of slaves during that period; but the laws against the importation into particular states, stand unrepealed. An immediate abolition of slavery would bring ruin upon the whites, and misery upon the blacks, in the southern states. The constitution has therefore wisely left each state to pursue its own measures, with respect to this article of legislation, during the period of twenty-one years."[27]

The following year the "Examination" of Tench Coxe said: "The temporary reservation of any particular matter must ever be deemed an admission that it should be done away. This appears to have been well understood. In addition to the arguments drawn from liberty, justice and religion, opinions against this practice [i.e., of slave-trading], founded in sound policy, have no doubt been urged. Regard was necessarily paid to the peculiar situation of our southern fellow-citizens; but they, on the other hand, have not been insensible of the delicate situation of our national character on this subject."[28]

From quite different motives Southern men defended this section. For instance, Dr. David Ramsay, a South Carolina member of the Convention, wrote in his "Address": "It is farther objected, that they have stipulated for a right to prohibit the importation of negroes after 21 years. On this subject observe, as they are bound to protect us from domestic violence, they think we ought not to increase our exposure to that evil, by an unlimited importation of slaves. Though Congress may forbid the importation of negroes after 21 years, it does not follow that they will. On the other hand, it is probable that they will not. The more rice we make, the more business will be for their shipping; their interest will therefore coincide with ours. Besides, we have other sources of supply--the importation of the ensuing 20 years, added to the natural increase of those we already have, and the influx from our northern neighbours who are desirous of getting rid of their slaves, will afford a sufficient number for cultivating all the lands in this state."[29]

Finally, _The Federalist_, No. 41, written by James Madison, commented as follows: "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 forever, 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 brethren!

"Attempts have been made to pervert this clause into an objection against the Constitution, 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."[30]

38. ~Attitude of the State Conventions.~ The records of the proceedings in the various State conventions are exceedingly meagre. In nearly all of the few States where records exist there is found some opposition to the slave-trade clause. The opposition was seldom very pronounced or bitter; it rather took the form of regret, on the one hand that the Convention went so far, and on the other hand that it did not go farther. Probably, however, the Constitution was never in danger of rejection on account of this clause.

Extracts from a few of the speeches, _pro_ and _con_, in various States will best illustrate the character of the arguments. In reply to some objections expressed in the Pennsylvania convention, Wilson said, December 3, 1787: "I consider this as laying the foundation for banishing slavery out of this country; and though the period is more distant than I could wish, yet it will produce the same kind, gradual change, which was pursued in Pennsylvania."[31] Robert Barnwell declared in the South Carolina convention, January 17, 1788, that this clause "particularly pleased" him. "Congress," he said, "has guarantied this right for that space of time, and at its expiration may continue it as long as they please. This question then arises--What will their interest lead them to do? The Eastern States, as the honorable gentleman says, will become the carriers of America. It will, therefore, certainly be their interest to encourage exportation to as great an extent as possible; and if the quantum of our products will be diminished by the prohibition of negroes, I appeal to the belief of every man, whether he thinks those very carriers will themselves dam up the sources from whence their profit is derived. To think so is so contradictory to the general conduct of mankind, that I am of opinion, that, without we ourselves put a stop to them, the traffic for negroes will continue forever."[32]

In Massachusetts, January 30, 1788, General Heath said: "The gentlemen who have spoken have carried the matter rather too far on both sides. I apprehend that it is not in our power to do anything for or against those who are in slavery in the southern States.... Two questions naturally arise, if we ratify the Constitution: Shall we do anything by our act to hold the blacks in slavery? or shall we become partakers of other men's sins? I think neither of them. Each State is sovereign and independent to a certain degree, and they have a right, and will regulate their own internal affairs, as to themselves appears proper."[33] Iredell said, in the North Carolina convention, July 26, 1788: "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 as it is, this government is nobly distinguished above others by that very provision."[34]

Of the arguments against the clause, two made in the Massachusetts convention are typical. The Rev. Mr. Neal said, January 25, 1788, that "unless his objection [to this clause] was removed, he could not put his hand to the Constitution."[35] General Thompson exclaimed, "Shall it be said, that after we have established our own independence and freedom, we make slaves of others?"[36] Mason, in the Virginia convention, June 15, 1788, said: "As much as I value a union of all the states, I would not admit the Southern States into the Union unless they agree to the discontinuance of this disgraceful trade.... 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.'"[37] Joshua Atherton, who led the opposition in the New Hampshire convention, said: "The idea that strikes those who are opposed to this clause so disagreeably and so forcibly is,--hereby it is conceived (if we ratify the Constitution) that we become _consenters to_ and _partakers in_ the sin and guilt of this abominable traffic, at least for a certain period, without any positive stipulation that it shall even then be brought to an end."[38]

In the South Carolina convention Lowndes, January 16, 1788, attacked the slave-trade clause. "Negroes," said he, "were our wealth, our only natural resource; yet behold how our kind friends in the north were determined soon to tie up our hands, and drain us of what we had! The Eastern States drew their means of subsistence, in a great measure, from their shipping; and, on that head, they had been particularly careful not to allow of any burdens.... Why, then, call this a reciprocal bargain, which took all from one party, to bestow it on the other!"[39]

In spite of this discussion in the different States, only one State, Rhode Island, went so far as to propose an amendment directing Congress to "promote and establish such laws and regulations as may effectually prevent the importation of slaves of every description, into the United States."[40]

39. ~Acceptance of the Policy.~ As in the Federal Convention, so in the State conventions, it is noticeable that the compromise was accepted by the various States from widely different motives.[41] Nevertheless, these motives were not fixed and unchangeable, and there was still discernible a certain underlying agreement in the dislike of slavery. One cannot help thinking that if the devastation of the late war had not left an extraordinary demand for slaves in the South,--if, for instance, there had been in 1787 the same plethora in the slave-market as in 1774,--the future history of the country would have been far different. As it was, the twenty-one years of _laissez-faire_ were confirmed by the States, and the nation entered upon the constitutional period with the slave-trade legal in three States,[42] and with a feeling of quiescence toward it in the rest of the Union.

FOOTNOTES:

[1] Conway, _Life and Papers of Edmund Randolph_, ch. ix.

[2] Conway, _Life and Papers of Edmund Randolph_, p. 78.

[3] Elliot, _Debates_, I. 227.

[4] Cf. Conway, _Life and Papers of Edmund Randolph_, pp.
78-9.

[5] For the following debate, Madison's notes (Elliot,
_Debates_, V. 457 ff.) are mainly followed.

[6] Cf. Elliot, _Debates_, V, _passim_.

[7] By Charles Pinckney.

[8] By John Dickinson.

[9] Mentioned in the speech of George Mason.

[10] Charles Pinckney. Baldwin of Georgia said that if the
State were left to herself, "she may probably put a stop to
the evil": Elliot, _Debates_, V. 459.

[11] _Affirmative:_ Connecticut, New Jersey, Maryland,
Virginia, North Carolina, South Carolina, Georgia,--7.
_Negative:_ New Hampshire, Pennsylvania, Delaware,--3.
_Absent:_ Massachusetts,--1.

[12] _Negative:_ Connecticut and New Jersey.

[13] Luther Martin's letter, in Elliot, _Debates_, I. 373. Cf.
explanations of delegates in the South Carolina, North
Carolina, and other conventions.

[14] Elliot, _Debates_, V. 471.

[15] Saturday, Aug. 25, 1787.

[16] Elliot, _Debates_, V. 477.

[17] Elliot, _Debates_, V. 477. Dickinson made a similar
motion, which was disagreed to: _Ibid._

[18] _Ibid._, V. 478.

[19] _Ibid._

[20] Aug. 29: _Ibid._, V. 489.

[21] _Ibid._, V. 492.

[22] Elliot, _Debates_, V. 532.

[23] _Ibid._, I. 317.

[24] P.L. Ford, _Pamphlets on the Constitution_, p. 331.

[25] _Ibid._, p. 367.

[26] McMaster and Stone, _Pennsylvania and the Federal
Convention_, pp. 599-600. Cf. also p. 773.

[27] See Ford, _Pamphlets_, etc., p. 54.

[28] Ford, _Pamphlets_, etc., p. 146.

[29] "Address to the Freemen of South Carolina on the Subject
of the Federal Constitution": _Ibid._, p. 378.

[30] Published in the _New York Packet_, Jan. 22, 1788;
reprinted in Dawson's _Foederalist_, I. 290-1.

[31] Elliot, _Debates_, II. 452.

[32] Elliot, _Debates_, IV. 296-7.

[33] Published in _Debates of the Massachusetts Convention_,
1788, p. 217 ff.

[34] Elliot, _Debates_, IV. 100-1.

[35] Published in _Debates of the Massachusetts Convention_,
1788, p. 208.

[36] _Ibid._

[37] Elliot, _Debates_, III. 452-3.

[38] Walker, _Federal Convention of New Hampshire_, App. 113;
Elliot, Debates, II. 203.

[39] Elliot, _Debates_, IV. 273.

[40] Updike's _Minutes_, in Staples, _Rhode Island in the
Continental Congress_, pp. 657-8, 674-9. Adopted by a majority
of one in a convention of seventy.

[41] In five States I have found no mention of the subject
(Delaware, New Jersey, Georgia, Connecticut, and Maryland). In
the Pennsylvania convention there was considerable debate,
partially preserved in Elliot's and Lloyd's _Debates_. In the
Massachusetts convention the debate on this clause occupied a
part of two or three days, reported in published debates. In
South Carolina there were several long speeches, reported in
Elliot's _Debates_. Only three speeches made in the New
Hampshire convention seem to be extant, and two of these are
on the slave-trade: cf. Walker and Elliot. The Virginia
convention discussed the clause to considerable extent: see
Elliot. The clause does not seem to have been a cause of North
Carolina's delay in ratification, although it occasioned some
discussion: see Elliot. In Rhode Island "much debate ensued,"
and in this State alone was an amendment proposed: see
Staples, _Rhode Island in the Continental Congress_. In New
York the Committee of the Whole "proceeded through sections 8,
9 ... with little or no debate": Elliot, _Debates_, II. 406.

[42] South Carolina, Georgia, and North Carolina. North
Carolina had, however, a prohibitive duty.

* * * * *

_Chapter VII_

TOUSSAINT L'OUVERTURE AND ANTI-SLAVERY EFFORT, 1787-1806.

40. Influence of the Haytian Revolution.
41. Legislation of the Southern States.
42. Legislation of the Border States.
43. Legislation of the Eastern States.
44. First Debate in Congress, 1789.
45. Second Debate in Congress, 1790.
46. The Declaration of Powers, 1790.
47. The Act of 1794.
48. The Act of 1800.
49. The Act of 1803.
50. State of the Slave-Trade from 1789 to 1803.
51. The South Carolina Repeal of 1803.
52. The Louisiana Slave-Trade, 1803-1805.
53. Last Attempts at Taxation, 1805-1806.
54. Key-Note of the Period.

40. ~Influence of the Haytian Revolution.~ The rôle which the great Negro Toussaint, called L'Ouverture, played in the history of the United States has seldom been fully appreciated. Representing the age of revolution in America, he rose to leadership through a bloody terror, which contrived a Negro "problem" for the Western Hemisphere, intensified and defined the anti-slavery movement, became one of the causes, and probably the prime one, which led Napoleon to sell Louisiana for a song, and finally, through the interworking of all these effects, rendered more certain the final prohibition of the slave-trade by the United States in 1807.

From the time of the reorganization of the Pennsylvania Abolition Society, in 1787, anti-slavery sentiment became active. New York, New Jersey, Rhode Island, Delaware, Maryland, and Virginia had strong organizations, and a national convention was held in 1794. The terrible upheaval in the West Indies, beginning in 1791, furnished this rising movement with an irresistible argument. A wave of horror and fear swept over the South, which even the powerful slave-traders of Georgia did not dare withstand; the Middle States saw their worst dreams realized, and the mercenary trade interests of the East lost control of the New England conscience.

41. ~Legislation of the Southern States.~ In a few years the growing sentiment had crystallized into legislation. The Southern States took immediate measures to close their ports, first against West India Negroes, finally against all slaves. Georgia, who had had legal slavery only from 1755, and had since passed no restrictive legislation, felt compelled in 1793[1] to stop the entry of free Negroes, and in 1798[2] to prohibit, under heavy penalties, the importation of all slaves. This provision was placed in the Constitution of the State, and, although miserably enforced, was never repealed.

South Carolina was the first Southern State in which the exigencies of a great staple crop rendered the rapid consumption of slaves more profitable than their proper maintenance. Alternating, therefore, between a plethora and a dearth of Negroes, she prohibited the slave-trade only for short periods. In 1788[3] she had forbidden the trade for five years, and in 1792,[4] being peculiarly exposed to the West Indian insurrection, she quickly found it "inexpedient" to allow Negroes "from Africa, the West India Islands, or other place beyond sea" to enter for two years. This act continued to be extended, although with lessening penalties, until 1803.[5] The home demand in view of the probable stoppage of the trade in 1808, the speculative chances of the new Louisiana Territory trade, and the large already existing illicit traffic combined in that year to cause the passage of an act, December 17, reopening the African slave-trade, although still carefully excluding "West India" Negroes.[6] This action profoundly stirred the Union, aroused anti-slavery sentiment, led to a concerted movement for a constitutional amendment, and, failing in this, to an irresistible demand for a national prohibitory act at the earliest constitutional moment.

North Carolina had repealed her prohibitory duty act in 1790,[7] but in 1794 she passed an "Act to prevent further importation and bringing of slaves," etc.[8] Even the body-servants of West India immigrants and, naturally, all free Negroes, were eventually prohibited.[9]

42. ~Legislation of the Border States.~ The Border States, Virginia and Maryland, strengthened their non-importation laws, Virginia freeing illegally imported Negroes,[10] and Maryland prohibiting even the interstate trade.[11] The Middle States took action chiefly in the final abolition of slavery within their borders, and the prevention of the fitting out of slaving vessels in their ports. Delaware declared, in her Act of 1789, that "it is inconsistent with that spirit of general liberty which pervades the constitution of this state, that vessels should be fitted out, or equipped, in any of the ports thereof, for the purpose of receiving and transporting the natives of Africa to places where they are held in slavery,"[12] and forbade such a practice under penalty of £500 for each person so engaged. The Pennsylvania Act of 1788[13] had similar provisions, with a penalty of £1000; and New Jersey followed with an act in 1798.[14]

43. ~Legislation of the Eastern States.~ In the Eastern States, where slavery as an institution was already nearly defunct, action was aimed toward stopping the notorious participation of citizens in the slave-trade outside the State. The prime movers were the Rhode Island Quakers. Having early secured a law against the traffic in their own State, they turned their attention to others. Through their remonstrances Connecticut, in 1788,[15] prohibited participation in the trade by a fine of £500 on the vessel, £50 on each slave, and loss of insurance; this act was strengthened in 1792,[16] the year after the Haytian revolt. Massachusetts, after many fruitless attempts, finally took advantage of an unusually bold case of kidnapping, and passed a similar act in 1788.[17] "This," says Belknap, "was the utmost which could be done by our legislatures; we still have to regret the impossibility of making a law _here_, which shall restrain our citizens from carrying on this trade _in foreign bottoms_, and from committing the crimes which this act prohibits, _in foreign countries_, as it is said some of them have done since the enacting of these laws."[18]

Thus it is seen how, spurred by the tragedy in the West Indies, the United States succeeded by State action in prohibiting the slave-trade from 1798 to 1803, in furthering the cause of abolition, and in preventing the fitting out of slave-trade expeditions in United States ports. The country had good cause to congratulate itself. The national government hastened to supplement State action as far as possible, and the prophecies of the more sanguine Revolutionary fathers seemed about to be realized, when the ill-considered act of South Carolina showed the weakness of the constitutional compromise.

44. ~First Debate in Congress, 1789.~ The attention of the national government was early directed to slavery and the trade by the rise, in the first Congress, of the question of taxing slaves imported. During the debate on the duty bill introduced by Clymer's committee, Parker of Virginia moved, May 13, 1789, to lay a tax of ten dollars _per capita_ on slaves imported. He plainly stated that the tax was designed to check the trade, and that he was "sorry that the Constitution prevented Congress from prohibiting the importation altogether." The proposal was evidently unwelcome, and caused an extended debate.[19] Smith of South Carolina wanted to postpone a matter so "big with the most serious consequences to the State he represented." Roger Sherman of Connecticut "could not reconcile himself to the insertion of human beings as an article of duty, among goods, wares, and merchandise." Jackson of Georgia argued against any restriction, and thought such States as Virginia "ought to let their neighbors get supplied, before they imposed such a burden upon the importation." Tucker of South Carolina declared it "unfair to bring in such an important subject at a time when debate was almost precluded," and denied the right of Congress to "consider whether the importation of slaves is proper or not."

Mr. Parker was evidently somewhat abashed by this onslaught of friend and foe, but he "had ventured to introduce the subject after full deliberation, and did not like to withdraw it." He desired Congress, "if possible," to "wipe off the stigma under which America labored." This brought Jackson of Georgia again to his feet. He believed, in spite of the "fashion of the day," that the Negroes were better off as slaves than as freedmen, and that, as the tax was partial, "it would be the most odious tax Congress could impose." Such sentiments were a distinct advance in pro-slavery doctrine, and called for a protest from Madison of Virginia. He thought the discussion proper, denied the partiality of the tax, and declared that, according to the spirit of the Constitution and his own desire, it was 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." Finally, to Burke of South Carolina, who thought "the gentlemen were contending for nothing," Madison sharply rejoined, "If we contend for nothing, the gentlemen who are opposed to us do not contend for a great deal."

It now became clear that Congress had been whirled into a discussion of too delicate and lengthy a nature to allow its further prolongation. Compromising councils prevailed; and it was agreed that the present proposition should be withdrawn and a separate bill brought in. This bill was, however, at the next session dexterously postponed "until the next session of Congress."[20]

45. ~Second Debate in Congress, 1790.~ It is doubtful if Congress of its own initiative would soon have resurrected the matter, had not a new anti-slavery weapon appeared in the shape of urgent petitions from abolition societies. The first petition, presented February 11, 1790,[21] was from the same interstate Yearly Meeting of Friends which had formerly petitioned the Confederation Congress.[22] They urged Congress to inquire "whether, notwithstanding such seeming impediments, it be not in reality within your power to exercise justice and mercy, which, if adhered to, we cannot doubt, must produce the abolition of the slave trade," etc. Another Quaker petition from New York was also presented,[23] and both were about to be referred, when Smith of South Carolina objected, and precipitated a sharp debate.[24] This debate had a distinctly different tone from that of the preceding one, and represents another step in pro-slavery doctrine. The key-note of these utterances was struck by Stone of Maryland, who "feared that if Congress took any measures indicative of an intention to interfere with the kind of property alluded to, it would sink it in value very considerably, and might be injurious to a great number of the citizens, particularly in the Southern States. He thought the subject was of general concern, and that the petitioners had no more right to interfere with it than any other members of the community. It was an unfortunate circumstance, that it was the disposition of religious sects to imagine they understood the rights of human nature better than all the world besides."

In vain did men like Madison disclaim all thought of unconstitutional "interference," and express only a desire to see "If anything is within the Federal authority to restrain such violation of the rights of nations and of mankind, as is supposed to be practised in some parts of the United States." A storm of disapproval from Southern members met such sentiments. "The rights of the Southern States ought not to be threatened," said Burke of South Carolina. "Any extraordinary attention of Congress to this petition," averred Jackson of Georgia, would put slave property "in jeopardy," and "evince to the people a disposition towards a total emancipation." Smith and Tucker of South Carolina declared that the request asked for "unconstitutional" measures. Gerry of Massachusetts, Hartley of Pennsylvania, and Lawrence of New York rather mildly defended the petitioners; but after considerable further debate the matter was laid on the table.

The very next day, however, the laid ghost walked again in the shape of another petition from the "Pennsylvania Society for promoting the Abolition of Slavery," signed by its venerable president, Benjamin Franklin. This petition asked Congress to "step to the very verge of the power vested in you for discouraging every species of traffic in the persons of our fellow-men."[25] Hartley of Pennsylvania called up the memorial of the preceding day, and it was read a second time and a motion for commitment made. Plain words now came from Tucker of South Carolina. "The petition," he said, "contained an unconstitutional request." The commitment would alarm the South. These petitions were "mischievous" attempts to imbue the slaves with false hopes. The South would not submit to a general emancipation without "civil war." The commitment would "blow the trumpet of sedition in the Southern States," echoed his colleague, Burke. The Pennsylvania men spoke just as boldly. Scott declared the petition constitutional, and was sorry that the Constitution did not interdict this "most abominable" traffic. "Perhaps, in our Legislative capacity," he said, "we can go no further than to impose a duty of ten dollars, but I do not know how far I might go if I was one of the Judges of the United States, and those people were to come before me and claim their emancipation; but I am sure I would go as far as I could." Jackson of Georgia rejoined in true Southern spirit, boldly defending slavery in the light of religion and history, and asking if it was "good policy to bring forward a business at this moment likely to light up the flame of civil discord; for the people of the Southern States will resist one tyranny as soon as another. The other parts of the Continent may bear them down by force of arms, but they will never suffer themselves to be divested of their property without a struggle. The gentleman says, if he was a Federal Judge, he does not know to what length he would go in emancipating these people; but I believe his judgment would be of short duration in Georgia, perhaps even the existence of such a Judge might be in danger." Baldwin, his New-England-born colleague, urged moderation by reciting the difficulty with which the constitutional compromise was reached, and declaring, "the moment we go to jostle on that ground, I fear we shall feel it tremble under our feet." Lawrence of New York wanted to commit the memorials, in order to see how far Congress might constitutionally interfere. Smith of South Carolina, in a long speech, said that his constituents entered the Union "from political, not from moral motives," and that "we look upon this measure as an attack upon the palladium of the property of our country." Page of Virginia, although a slave owner, urged commitment, and Madison again maintained the appropriateness of the request, and suggested that "regulations might be made in relation to the introduction of them [i.e., slaves] into the new States to be formed out of the Western Territory." Even conservative Gerry of Massachusetts declared, with regard to the whole trade, that the fact that "we have a right to regulate this business, is as clear as that we have any rights whatever."

Finally, by a vote of 43 to 11, the memorials were committed, the South Carolina and Georgia delegations, Bland and Coles of Virginia, Stone of Maryland, and Sylvester of New York voting in the negative.[26] A committee, consisting of Foster of New Hampshire, Huntington of Connecticut, Gerry of Massachusetts, Lawrence of New York, Sinnickson of New Jersey, Hartley of Pennsylvania, and Parker of Virginia, was charged with the matter, and reported Friday, March 5. The absence of Southern members on this committee compelled it to make this report a sort of official manifesto on the aims of Northern anti-slavery politics. As such, it was sure to meet with vehement opposition in the House, even though conservatively worded. Such proved to be the fact when the committee reported. The onslaught to "negative the whole report" was prolonged and bitter, the debate _pro_ and _con_ lasting several days.[27]

46. ~The Declaration of Powers, 1790.~ The result is best seen by comparing the original report with the report of the Committee of the Whole, adopted by a vote of 29 to 25 Monday, March 23, 1790:[28]--

REPORT OF THE SELECT COMMITTEE.

That, from the nature of the matters contained in these
memorials, they were induced to examine the powers vested in
Congress, under the present Constitution, relating to the
Abolition of Slavery, and are clearly of opinion,

_First._ That the General Government is expressly restrained
from prohibiting the importation of such persons 'as any of
the States now existing shall think proper to admit, until the
year one thousand eight hundred and eight.'

_Secondly._ That Congress, by a fair construction of the
Constitution, are equally restrained from interfering in the
emancipation of slaves, who already are, or who may, within
the period mentioned, be imported into, or born within, any of
the said States.

_Thirdly._ That Congress have no authority to interfere in the
internal regulations of particular States, relative to the
instructions of slaves in the principles of morality and
religion; to their comfortable clothing, accommodations, and
subsistence; to the regulation of their marriages, and the
prevention of the violation of the rights thereof, or to the
separation of children from their parents; to a comfortable
provision in cases of sickness, age, or infirmity; or to the
seizure, transportation, or sale of free negroes; but have the
fullest confidence in the wisdom and humanity of the
Legislatures of the several States, that they will revise
their laws from time to time, when necessary, and promote the
objects mentioned in the memorials, and every other measure
that may tend to the happiness of slaves.

_Fourthly._ That, nevertheless, Congress have authority, if
they shall think it necessary, to lay at any time a tax or
duty, not exceeding ten dollars for each person of any
description, the importation of whom shall be by any of the
States admitted as aforesaid.

_Fifthly._ That Congress have authority to interdict,[29] or
(so far as it is or may be carried on by citizens of the
United States, for supplying foreigners), to regulate the
African trade, and to make provision for the humane treatment
of slaves, in all cases while on their passage to the United
States, or to foreign ports, so far as respects the citizens
of the United States.

_Sixthly._ That Congress have also authority to prohibit
foreigners from fitting out vessels in any port of the United
States, for transporting persons from Africa to any foreign
port.