pation of their slaves, but the assembly of that state put a stop to that "dangerous practice," by forbidding emancipations, except by allowance of the county courts. Since the peace, the importation of slaves from the coast of Africa into the three southern states, had been recommenced, and was vigorously carried on. There was no thought in those states of foregoing a system from which great gains were hoped.

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Let it be remembered, however, and this consideration, though frequently overlooked or disregarded, is absolutely essential to a correct understanding of the case, that the Federal convention did not assemble to revise the laws or institutions of the states, nor to determine or enforce the political or social rights appertaining to the inhabitants of the states, as such. That had been done already by the state constitutions. The states existed as bodies politic; they had their laws defining the rights of their citizens and inhabitants; and their courts for enforcing those rights; and with none of those arrangements, either by way of enforcement or alteration, was it any part of the business of the Federal convention to interfere, unless in cases where these arrangements had or might have an injurious bearing upon the citizens of other states, or upon the foreign relations of the confederacy. The business of the Federal convention was, so to amend the articles of confederation as to carry into effect the objects at which that confederation aimed; namely, the enabling the states to act as one nation in their foreign affairs; and securing the several states and their individual inhabitants against injustice, oppression, or injury, on the part of other states or their individual inhabitants.

It might indeed become necessary, for the accomplishment of these objects, to interfere to some extent with some of the existing laws and institutions of the states, or at least to reserve to the authorities to be created by the new constitution, the power of doing so; and under the plan adopted, of submitting that constitution to be separately ratified by each of the states, any alterations so made or authorized would rest on the same basis of popular consent with the state constitutions themselves. But this interference with state constitutions or state laws, any interference in any shape with the internal affairs of the states, was a power to be very daintily exercised, especially in its application to particular cases; otherwise, any constitution which the convention might form, would be sure of being rejected by the states.

It was from this view of the case that the convention omitted to prefix to the Federal constitution any general Bill of Rights; an omission much complained of by those who opposed its adoption. It was not in their character as individuals about to enter into a primary political organization, but in their character as inhabitants of certain states already constituted and organized, that the Federal constitution had to do with the people of America. Their rights as inhabitants of each particular state, it belonged to the state governments to settle: the Federal constitution had only to declare what should be their additional and supplementary rights as citizens and inhabitants of the confederacy.

Under this view of the subject, slavery in the states was a matter with which the convention was not called upon directly to interfere, and which, indeed, could not be directly interfered with, without exposing the proposed constitution to certain rejection. It did, however, come before the convention incidentally; and the question which we now have to consider is, Whether, in dealing with it thus incidentally, the Federal constitution has acknowledged the legal existence of slavery, in any of the states, so as to bind the confederacy, and to impart to that institution in the states, that legal character which the laws of the states themselves have failed to give to it.

The article in the Federal constitution principally relied upon by those who maintain the affirmative on this point, is that which determines the ratio of representation in the House of Representatives. That article is frequently spoken of as though it were the great compromise; the fundamental concession upon which the constitution was based. This was not so. The great difficulty that occurred at the outset was, to reconcile the pretensions of the larger and the smaller states. The smaller states insisted upon that political equality which they already possessed under the articles of confederation; the larger states maintained, that representation in the national legislature ought to be based on "wealth and numbers." The larger states having carried a resolution to that effect, as to both branches of the legislature, the smaller states threatened to quit the convention; and this result was only prevented by a concession recommended by a committee of one from each state, to whom the subject was referred, which was finally adopted by the convention, yielding to the small states an equal representation in one branch

of the national legislature. This was the great compromise, -the particular ratio of representation to be adopted in the other branch was quite a subordinate matter. Yet though subordinate, it was interesting and important. The subject of the distribution of representatives in the first Congress, after being referred to two committees, whose reports were based on a conjectural estimate of wealth and numbers, was finally arranged by the convention. The regulation of the future representation was a more difficult matter. One party, headed by Gouverneur Morris, wished to leave it entirely to the discretion of Congress, with the avowed object of enabling the existing states to retain a political ascendency over such new states as might be admitted into the Union. But this was objected to as unjust, and it became necessary to fix upon some precise rule of distribution. That distribution was to be regulated by "wealth and numbers;" as to this there was a general agreement. Numbers might easily be ascertained by a census: but how was wealth to be measured?

This was a point upon which, under the existing confederation, difficulties had already occurred. In framing the arti cles of confederation, it had been proposed to distribute the charges of the war, and other common expenses, among the states, in proportion to their population; on the ground that population, on the whole, was the best practicable test of wealth and ability to pay taxes. But the southern states had strongly objected to this arrangement, on the ground that the labor of their slaves was far less productive than the labor of the same number of northern freemen; and the value of buildings and cultivated lands, to be ascertained by an appraisement made by the authorities of each state, was finally adopted as the basis of taxation and pecuniary liability. Bu such an appraisement was found liable to great difficulties, expenses, delays, and objections; very few states had made it; and Congress, since the peace, had proposed to amend the articles of confederation, by substituting for it "the whole number of white and other free citizens and inhabitants of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians not taxed." This proposed amendment, to which eleven states had already acceded, had only been agreed on in Congress after a good deal of higgling between the northern and southern members as to the relative productiveness

of free and slave labor. That question was now revived in the convention, and the same compromise was suggested there, which the Continental Congress had already proposed as the basis of taxation. Having first agreed that represen tation and direct taxation should go together, it was finally arranged, and so it now stands in the Federal constitution, that the number of representatives from each state shall be determined, "by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons."

The question is, whether the use of the phrase three fifths of all other persons, recognizes the validity of the slave laws of any particular state, and affords a sufficient basis for those laws to stand upon, notwithstanding their original defects already pointed out? The first thing to be observed is, that the validity of those laws was not of the least consequence in settling the point under consideration, to wit, the productiveness of the industry of the several states. Whether the negroes of Virginia, for instance, were held in slavery by law or against law, made in this point of view no difference at all. Suppose, for example, (as we hold,) that they were illegally deprived of their liberty; the illegality of their servi tude would not increase their industry, or the wealth of the state, so as to entitle her whole population to be counted, in determining her representation. What the constitution had to deal with, in settling this distribution of representation, was a question of external fact, not a question of law or right. The question of the individual rights of the inhabitants of the states was one over which this article required the assumption of no control. Their condition in fact, not their condition in law, was the real point according to which the distribution was to be regulated.

Even in referring to the matter of fact great caution was used. "The question of slavery in the states," said Gerry, in reference to another point to be presently considered, "ought not to be touched, but we ought to be careful not to give it any sanction." Madison thought it wrong to admit into the constitution "the idea that there could be property in men"; and the whole phraseology of the instrument was carefully settled in accordance with this view.

It is fair enough to conclude that the "other persons," referred to in this article, were those held as slaves in the

several states. But the constitution takes care not to commit itself by calling them slaves, or by using any term that would seem to pass a judgment on the legal character or particular legal incidents of their condition. That remains what it was; this article does not affect it in any way; and if the laws of the states fail, as we maintain, to give any legal authority to those who claim to be masters, surely they will look for it in vain in this article of the Federal constitution.

When the Federal convention, in the course of its labors, arrived at the clauses investing Congress with the power to regulate navigation and foreign commerce, a new occasion. for compromise arose. Ten states out of the thirteen had already prohibited the importation of slaves from abroad, and if the Federal government were invested with unlimited control over the intercourse with foreign countries, it was plain enough that one of its first acts would be the prohibition of the African slave-trade.

For this, Georgia and the Carolinas were not prepared; and the opinion was very warmly and confidently expressed by the delegates of those states, that such an unlimited power conferred upon Congress, would insure in those states the rejection of the constitution. To avoid this result, a provision was inserted, "that the emigration 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; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."

We observe in this clause the same cautious phraseology as in that which we have already discussed. As to the legal character or condition of the persons so to be admitted, nothing whatever is said. There is not the slightest implication that the constitution assented in any way that any of the persons so introduced into the states should be held in a state of slavery. If that was done, it could only be on the responsibility of those who did it, and of the states that allowed it. The constitution did not assent to it, and by the power which it reserved to itself, all the power which was possible under the circumstances, it secured the right, after the lapse of twenty years, of preventing the possibility of such an occur rence. But for this right thus reserved to the Federal government, there is every reason to believe that in all the states south of Virginia the foreign slave-trade would be now