15 June 1788
Elliot 3:452–54, 456–59
Mr. George Mason. Mr. Chairman, this is a fatal section, which has created more dangers than any other. The first clause allows the importation of slaves for twenty years. Under the royal government, this evil was looked upon as a great oppression, and many attempts were made to prevent it; but the interest of the African merchants prevented its prohibition. No sooner did the revolution take place, than it was thought of. It was one of the great causes of our separation from Great Britain. Its exclusion has been a principal object of this state, and most of the states in the Union. The augmentation of slaves weakens the states; and such a trade is diabolical in itself, and disgraceful to mankind; yet, by this Constitution, it is continued for twenty years. As much as I value 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, because it would bring weakness, and not strength, to the Union. And, though this infamous traffic be continued, we have no security for the property of that kind which we have already. There is no clause in this Constitution to secure it; for they may lay such a tax as will amount to manumission. And should the government be amended, still this detestable kind of commerce cannot be discontinued till after the expiration of twenty years; for the 5th article, which provides for amendments, expressly excepts this clause. I have ever looked upon this as a most disgraceful thing to America. I cannot express my detestation of it. Yet they have not secured us the property of the slaves we have already. So that “they have done what they ought not to have done, and have left undone what they ought to have done.”
Mr. Madison. Mr. Chairman, I should conceive this clause to be impolitic, if it were one of those things which could be excluded without encountering greater evils. The Southern States would not have entered into the Union of America without the temporary permission of that trade; and if they were excluded from the Union, the consequences might be dreadful to them and to us. We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The Union in general is not in a worse situation. Under the Articles of Confederation, it might be continued forever; but, by this clause, an end may be put to it after twenty years. There is, therefore, an amelioration of our circumstances. A tax may be laid in the mean time; but it is limited; otherwise Congress might lay such a tax as would [Volume 3, Page 293] amount to a prohibition. From the mode of representation and taxation, Congress cannot lay such a tax on slaves as will amount to manumission. Another clause secures us that property which we now possess. At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws; for the laws of the states are uncharitable to one another in this respect. But in this Constitution, “no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor shall be due.” This clause was expressly inserted, to enable owners of slaves to reclaim them.
This is a better security than any that now exists. No power is given to the general government to interpose with respect to the property in slaves now held by the states. The taxation of this state being equal only to its representation, such a tax cannot be laid as he supposes. They cannot prevent the importation of slaves for twenty years; but after that period, they can. The gentlemen from South Carolina and Georgia argued in this manner: “We have now liberty to import this species of property, and much of the property now possessed had been purchased, or otherwise acquired, in contemplation of improving it by the assistance of imported slaves. What would be the consequence of hindering us from it? The slaves of Virginia would rise in value, and we should be obliged to go to your markets.” I need not expatiate on this subject. Great as the evil is, a dismemberment of the Union would be worse. If those states should disunite from the other states for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.
Mr. Tyler warmly enlarged on the impolicy, iniquity, and disgracefulness of this wicked traffic. He thought the reasons urged by gentlemen in defence of it were inconclusive and ill founded. It was one cause of the complaints against British tyranny, that this trade was permitted. The revolution had put a period to it; but now it was to be revived. He thought nothing could justify it. This temporary restriction on Congress militated, in his opinion, against the arguments of gentlemen on the other side, that what was not given up was retained by the states; for that, if this restriction had not been inserted, Congress could have prohibited the African trade. The power of prohibiting it was not expressly delegated to them; yet they would have had it by implication, if this restraint had not been provided. This seemed to him to demonstrate most clearly the necessity of restraining them, by a bill of rights, from infringing our unalienable rights. It was immaterial whether the bill of rights was by itself, or included in the Constitution. But he contended for it one way or the other. It would be justified by our own example and that of England. His earnest desire was, that it should be handed down to posterity that he had opposed this wicked clause.
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Mr. George Nicholas wondered that gentlemen who were against slavery should be opposed to this clause; as, after that period, the slave trade would be done away. He asked if gentlemen did not see the inconsistency of their arguments. They object, says he, to the Constitution, because the slave trade is laid open for twenty odd years; and yet they tell you that, by some latent operation of it, the slaves who are so now will be manumitted. At the same moment it is opposed for being promotive and destructive of slavery. He contended that it was advantageous to Virginia that it should be in the power of Congress to prevent the importation of slaves after twenty years, as it would then put a period to the evil complained of.
As the Southern States would not confederate without this clause, he asked if gentlemen would rather dissolve the confederacy than to suffer this temporary inconvenience, admitting it to be such. Virginia might continue the prohibition of such importation during the intermediate period, and would be benefited by it, as a tax of ten dollars on each slave might be laid, of which she would receive a share. He endeavored to obviate the objection of gentlemen, that the restriction on Congress was a proof that they would have powers not given them, by remarking, that they would only have had a general superintendency of trade, if the restriction had not been inserted. But the Southern States insisted on this exception to that general superintendency for twenty years. It could not, therefore, have been a power by implication, as the restriction was an exception from a delegated power. The taxes could not, as had been suggested, be laid so high on negroes as to amount to emancipation because taxation and representation were fixed according to the census established in the Constitution. The exception of taxes from the uniformity annexed to duties and excises could not have the operation contended for by the gentleman, because other clauses had clearly and positively fixed the census. Had taxes been uniform, it would have been universally objected to; for no one object could be selected without involving great inconveniences and oppressions. But, says Mr. Nicholas, is it from the general government we are to fear emancipation? Gentlemen will recollect what I said in another house, and what other gentlemen have said, that advocated emancipation. Give me leave to say, that clause is a great security for our slave tax. I can tell the committee that the people of our country are reduced to beggary by the taxes on negroes. Had this Constitution been adopted, it would not have been the case. The taxes were laid on all our negroes. By this system, two fifths are exempted. He then added, that he had not imagined gentlemen would support here what they had opposed in another place.
Mr. Henry replied that, though the proportion of each was to be fixed by the census, and three fifths of the slaves only were included in the enumeration, yet the proportion of Virginia, being once fixed, might be laid on blacks and blacks only; for, the mode of raising the proportion of each state being to be directed by Congress, they might make slaves the sole object to raise it of. Personalities he wished to take leave of: they had nothing to do with the question, which was solely whether that paper was wrong or not.
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Mr. Nicholas replied, that negroes must be considered as persons or property. If as property, the proportion of taxes to be laid on them was fixed in the Constitution. If he apprehended a poll tax on negroes, the Constitution had prevented it; for, by the census, where a white man paid ten shillings, a negro paid but six shillings; for the exemption of two fifths of them reduced it to that proportion.
Mr. George Mason said, that gentlemen might think themselves secured by the restriction, in the 4th 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 assertion, or mere confirmation of the clause which fixed the ratio of taxes and representation. It only meant that the quantum to be raised of each state should be in proportion to their numbers, in the manner therein directed. But the general government was not precluded from laying the proportion of any particular state on any one species of property they might think proper.
For instance, if five hundred thousand dollars were to be raised, they might lay the whole of the proportion of 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, which were most affected, were perfectly satisfied with this provision, and dreaded no danger to the property they now hold. It appeared to him that the general government would not intermeddle with that property for twenty years, but to lay a tax on every slave imported not exceeding ten dollars; and that, after the expiration of that period, they might prohibit the traffic altogether. The census in the Constitution was intended to introduce equality in the burdens to be laid on the community. No gentleman objected to laying duties, imposts, and excises, uniformly. But uniformity of taxes would be subversive of the principles of equality; for 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 should be glad to leave the decision of this to the committee.