CHAPTER X
Report of the Committee of Detail, continued.—The Powers of Congress.—The Grand Compromises of the Constitution respecting Commerce, Exports, and the Slave-Trade.
In the examination which has thus far been made of the process of forming the Constitution, the reader will have noticed the absence of any express provisions concerning the regulation of commerce, and the obtaining of revenues. A system of government had been framed, embracing a national legislature, in which the mode of representation alone had been determined with precision. The powers of this legislature had been described only in very general terms. It was to have "the legislative rights vested in Congress by the Confederation," and the power "to legislate in all cases for the general interests of the Union, and also in those to which the States were separately incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation."
It might undoubtedly have been considered that, as the want of a power in the Confederation to make uniform commercial regulations affecting the foreign and domestic relations of the States was one of the principal causes of the assembling of this Convention, such a power was implied in the terms of the resolution, which had declared the general principles on which the authority of the national legislature ought to be regulated. Still, it remained to be determined what kind of regulation of commerce was required by "the general interests of the Union," or how far the States were incompetent, by their separate legislation, to deal with the interests of commerce so as to promote "the harmony of the United States." In the same way, a power to obtain revenues might be implied on the same general principles. But whether the commercial power foreshadowed in these broad declarations was to be limited or unlimited; whether there were any special objects or interests to which it was not to extend; and whether the revenues of the government were to be derived from imposts laid at pleasure upon imports or exports, or both; whether they might be derived from excises on the manufactures or produce of the country; whether its power of direct taxation was to be exercised under further limitations than those already agreed upon for the apportionment of direct taxes among the States;—all these details were as yet entirely unsettled.
Two subjects, one of which might fall within a general commercial power, and the other within a general power to raise revenues, had already been incidentally alluded to, and both were likely to create great embarrassment. General Pinckney had twice given notice that South Carolina could not accede to the new Union proposed, if it possessed a power to tax exports.[211] It had also become apparent, in the discussions and arrangements respecting the apportionment of representatives, that the possible encouragement of the slave-trade, which might follow an admission of the blacks into the rule of representation, was one great obstacle, in the view of the Northern States, to such an admission; and at the same time, that it was very doubtful whether all the Southern States would surrender to the general government the power to prohibit that trade.[212] The compromise which had already taken place on the subject of representation had settled the principles on which that difficult matter was to be arranged. But the power to increase the slave populations by continued importation had not been agreed to be surrendered; and unless some satisfactory and reasonable adjustment could be made on this subject, there could be no probability that the Constitution would be finally ratified by the people of the Northern States.[213] It is necessary, therefore, to look carefully at these two subjects, namely, the taxation of exports and the prohibition of the slave-trade.
That a power to lay taxes or duties on exported products belongs to every government possessing a general authority to select the objects from which its revenues are to be derived, is a proposition which admits of little doubt. It is not to be doubted, either, that it is a power which may be attended with great benefit, not only for purposes of revenue, but for the encouragement of manufactures; and it is clear that it may often be used as a means of controlling the commercial policy of other countries, when applied to articles which they cannot produce, but which they must consume. A government that is destitute of this power is not armed with the most complete and effectual means for counteracting the regulations of foreign countries that bear heavily upon the industrial pursuits of its people, although it may have other and sufficient sources of revenue; and therefore, until an unrestricted commercial intercourse and a free exchange of commodities become the general policy of the world, to deny to any government a power over the exported products of its own country, is to place it at some disadvantage with all commercial nations that possess the power to enhance the price of commodities which they themselves produce.
But, on the other hand, the practice of taxing the products of a country, as they pass out of its limits to enter into the consumption of other nations, can be beneficially exercised only by a government that can select and arrange the objects of such taxation so as to do nearly equal justice to all its producing interests. If, for example, the article of wine were produced only by a single province of France, and all the other provinces produced no commodities sought for by other nations, an export duty upon wine would fall wholly upon the single province where it was produced, and would place its production at an unequal competition with the wines of other countries. But France produces a variety of wines, the growth of many different provinces; and therefore, in the adjustment of an export duty upon wines, the government of that country, after a due regard to the demand for each kind or class of this commodity, has chiefly to consider the effect of such a tax in the competition with the same commodity produced by other nations.
At the time of the formation of the Constitution of the United States, there was not a single production, common to all the States, of sufficient importance to become an article of general exportation. Indeed, there were no commodities produced for exportation by so many of the States, that a tax or duty imposed upon them on leaving the country would operate with anything like equality even in different sections of the Union. In fact, from the extreme northern to the extreme southern boundary of the Union, the exports were so various, both in kind and amount, that a tax imposed on an article the produce of the South could not be balanced by a tax imposed upon an article produced or manufactured at the North. How, for example, could the burden of an export duty on the tobacco of Virginia, or the rice or indigo of South Carolina, be equalized by a similar duty on the lumber or fish or flour of other States? Possibly, after long experience and the accumulation of the necessary statistics, an approach towards an equality of such burdens might have been made; but it could never have become more than an unsatisfactory approximation; and while the effect of such a tax at one end of the Union on the demand for the commodity subjected to it might be estimated,—because the opportunity for other nations to supply themselves elsewhere might be so precise as to be easily measured,—its effect at the other end of the Union, on another commodity, might be wholly uncertain, because the demand from abroad might be influenced by new sources of supply, or might from accidental causes continue to be nearly the same as before.
However theoretically correct it might have been, therefore, to confer on the general government the same authority to tax exports as to impose duties on imported commodities,—and the argument for it drawn from the necessities for revenue and protection of manufactures was exceedingly strong,—the actual situation of the country made it quite impracticable to obtain the consent of some of the States to a full and complete revenue power. Several of the most important persons in the Convention were strongly in favor of it. Washington, Madison, Wilson, Gouverneur Morris, and Dickinson are known to have held the opinion, that the government would be incomplete, without a power to tax exports as well as imports. But the decided stand taken by South Carolina, whose exports for a single year were said by General Pinckney to have amounted to £600,000, the fruit of the labor of her slaves, probably led the committee of detail to insert in their report of a draft of the Constitution a distinct prohibition against laying any tax or duty on articles exported from any State.
A similar question, in relation to the extent of the commercial power, was destined to arise out of the relations of the different States to the slave-trade. If the power to regulate commerce, that might be conferred upon the general government, was to be universal and unlimited, it must include the right to prohibit the importation of slaves. If the right to sanction or tolerate the importation of slaves, which, like all other political rights, belonged to the people of the several States as sovereign communities, was to be retained by them as an exception from the commercial power which they might confer upon the national legislature, that exception must be clearly and definitely established. For several reasons, the question was necessarily to be met, as soon as the character and extent of the commercial power should come into discussion. While the trade had been prohibited by all the other States, including Virginia and Maryland, it had only been subjected to a duty by North Carolina, and was subjected to a similar discouragement by South Carolina and Georgia. The basis of representation in the national legislature, in which it had been agreed that the slaves should be included in a certain ratio, created a strong political motive with the Northern States to obtain for the general government a power to prevent further importations. It was fortunate that this motive existed; for the honor and reputation of the country were concerned to put an end to this traffic. No other nation, it was true, had at that time abolished it; but here were the assembled States of America, engaged in framing a Constitution of government, that ought, if the American character was to be consistent with the principles of the American Revolution, to go as far in the recognition of human rights as the circumstances of their actual situation would admit. What was practicable to be done, from considerations of humanity, and all that could be successfully done, was the measure of their duty as statesmen, admitted and acted upon by the framers of the Constitution, including many of those who represented slaveholding constituencies, as well as the representatives of States that had either abolished both the traffic in slaves and the institution itself, or were obviously destined to do it.
This just and necessary rule of action, however, which limited their efforts to what the actual circumstances of the country would permit, made a clear distinction between a prohibition of the future importation of slaves, and the manumission of those already in the country. The former could be accomplished, if the consent of the people of the States could be obtained, without trenching on their sovereign control over the condition of all persons within their respective limits. It involved only the surrender of a right to add to the numbers of their slaves by continued importations. But the power to determine whether the slaves then within their limits should remain in that condition, could not be surrendered by the people of the States, without overturning every principle on which the system of the new government had been rested, and which had thus far been justly regarded as essential to its establishment and to its future successful operation.
It is not, therefore, to be inferred, because a large majority of the Convention sought for a power to prohibit the increase of slaves by further importation, that they intended by means of it to extinguish the institution of slavery within the States. So far as they acted from a political motive, they designed to take away the power of a State to increase its congressional representation by bringing slaves from Africa; and so far as they acted from motives of general justice and humanity, they designed to terminate a traffic which never has been and never can be carried on without infinite cruelty and national dishonor. That the individuals of an inferior race already placed in the condition of servitude to a superior one may, by the force of necessity, be rightfully left in the care and dominion of those on whom they have been cast, is a proposition of morals entirely fit to be admitted by a Christian statesman. That new individuals may rightfully be placed in the same condition, not by the act of Providence through the natural increase of the species, but by the act of man in transferring them from distant lands, is quite another proposition. The distinction between the two, so far as a moral judgment is concerned with the acts of the framers of the Constitution upon the circumstances before them, defines the limits of duty which they intended to recognize.
No satisfactory means exist for determining to what extent a continuance of the importation of slaves was necessary, in an economical point of view, to the States of North Carolina, South Carolina, and Georgia. There is some reason to suppose that the natural increase of the slave population in Virginia at that period more than supplied her wants; and perhaps the less healthy regions of the more southern States may have still required foreign supplies in order to keep the lands already occupied under cultivation, or to make new lands productive.[214] All that is historically certain on this subject is, that the representatives of the three most southerly States acted upon the belief, that their constituents would not surrender the right to continue the importation of slaves, although they might, if left to themselves, discontinue the practice at some future time.
These declarations, however, had not been made at the time when the principles on which the Constitution was to be framed were sent to the committee of detail. Nothing had yet occurred in the Convention, to make it certain that the power to import would be retained by any of the States. The committee of detail had, therefore, so far as the action of the Convention had gone, an unrestricted choice between a full and a limited commercial power. They consisted of three members from non-slaveholding and two from slaveholding States;[215] but as one of them, Mr. Rutledge of South Carolina, was one of the persons who subsequently announced to the Convention the position that would be taken by his own State and by North Carolina and Georgia, there can be no doubt that he announced the same determination in the committee. In their report, they shaped the commercial power accordingly. They provided that the legislature of the United States should have power to lay and collect taxes, duties, imposts, and excises; and to regulate commerce with foreign nations, and among the several States.
But they also reported several restrictions upon both the revenue and commercial powers. Besides providing, in accordance with the ninth resolution adopted by the Convention, that direct taxation should be proportioned among the States according to the census, to be taken by a particular rule, they added the further restrictions, that no tax or duty should be laid by the national legislature on articles exported from any State, nor on the migration or importation of such persons as the several States might think proper to admit; that such migration or importation should not be prohibited; that no capitation tax should be laid, unless in proportion to the census; and that no navigation act should be passed without the assent of two thirds of the members present in each house.
That the new government must have a direct revenue power, was generally conceded, and it was also generally admitted that it must have a power to regulate commerce with foreign countries. But the idea was more or less prevalent among the Southern statesmen, that the interest of their own States, considered as a distinct and separate interest from that of the commercial States, did not require a regulation of commerce by the general government. It is not easy to determine to what extent these views were correct. Taking into consideration nothing more than the fact, that the staple production of Virginia was tobacco, as it was also partly that of North Carolina; that rice and indigo were the great products of South Carolina and Georgia; and that neither of these four States possessed a large amount of shipping;—it might certainly be considered that an unrestricted foreign intercourse was important to them.
But, on the other hand, if those States, by clothing the Union with a power to regulate commerce, were likely to subject themselves to a temporary rise of freights, the measures which might have that effect would also tend directly to increase Southern as well as Northern shipping, to augment the commercial marine of the whole country, and thus to increase its general maritime strength. The general security thus promoted was as important to one class of States as to another. The increase of the coasting trade would also increase the consumption of the produce of all the States. The great benefit, however, to be derived from a national regulation of commerce,—a benefit in which all the States would equally share, whatever might be their productions,—was undoubtedly the removal of the existing and injurious retaliations which the States had hitherto practised against each other.[216]
Still, these advantages were indirect or incidental. The immediate and palpable commercial interests of different portions of the Union, regarded in the mass, were not identical; and it was in one sense true, that the power of regulating commerce was a concession on the part of the Southern States to the Northern, for which they might reasonably expect equivalent advantages, or which they might reasonably desire to qualify by some restriction.
On the reception of the report of the committee of detail, and when the article relating to representation was reached, the consequences of agreeing that the slaves should be computed in the rule, taken in connection with an unrestrained power in the States to increase the slave populations by further importation, and with the exemption of exports from taxation, became more prominent, and more likely to produce serious dissatisfaction. The concession of the slave representation had been made by some of the Northern members, in the hope that it might be the means of strengthening the plan of government, and of procuring for it full powers both of revenue and of commercial regulation. But now, it appeared that, as to two very important points, the hands of the national legislature were to be absolutely tied. The importation of slaves could not be prohibited; exports could not be taxed. These restrictions seemed to many to have an inevitable tendency to defeat the great primary purposes of a national government. All must agree, that defence against foreign invasion and against internal sedition was one of the principal objects for which such a government was to be established. Were all the States then to be bound to defend each, and was each to be at liberty to introduce a weakness which would increase both its own and the general danger, and at the same time to withhold the compensation for the burden? If slaves were to be imported, why should not the exports produced by their labor supply a revenue, that would enable the general government to defend their masters? To refuse it, was so inequitable and unreasonable, said Rufus King, that he could not assent to the representation of the slaves, unless exports should be taxable;—perhaps he could not finally consent to it, under any circumstances.[217]
Gouverneur Morris, with his accustomed ardor, went further still, and insisted on re-opening the subject of representation, now that the other features of the system were to be made to favor the increase of slaves, and to throw the burdens of maintaining the government chiefly upon the Northern States. It was idle, he declared, to say that direct taxation might be levied upon the slaveholding States in proportion to their representative population: for the general government could never stretch out its hand, and put it directly into the pockets of the people, over so vast a country. Its revenues must be derived from exports, imports, and excises. He therefore would not consent to the sacrifices demanded, and moved the insertion of the word "free" before the word "inhabitants," in the article regulating the basis of representation.[218]
But there were few men in the Convention bold enough to hazard the consequences of unsettling an arrangement, which had cost so much labor and anxiety; which had been made as nearly correct in theory as the circumstances of the case would allow; and which was, in truth, the best practical solution of a great difficulty. Mr. Morris's motion received the vote of a single State only.[219] The great majority of the delegations considered it wiser to go on to the discussion of the proposed restrictions upon the revenue and commercial powers, in the hope that each of them might be considered and acted upon with reference to the true principles applicable to the subject, or that the whole might be adjusted by some agreement that would not disturb what had been settled with so much difficulty.
The great embarrassment attending the proposed restriction upon the taxation of exports was, that, however the question might be decided, it would probably lose for the new government the support of some important members of the Convention. Those who regarded it as right that the government should have a complete revenue power, contended for the convenience with which a large staple production, in which America was not rivalled in foreign markets, could be made the subject of an export tax, that would in reality be paid by the foreign consumer. On the other side, the very facility with which such objects could be selected for taxation alarmed the States whose products presented the best opportunity for exercising this power. They did not deny the obvious truth, that the tax must ultimately fall on the consumer; but they considered it enough to surrender the power of levying duties upon imports, without giving up the control which each State now had over its own productions.[220]
But there was also another question involved in the form in which the proposed restriction had been presented. It prohibited the national government from taxing exports, but imposed no restraint in this respect upon the power of the States. If they were to retain the power over their own exports, they would have the same right to tax the products of other States exported through their maritime towns. This power had been used to a great extent, and always oppressively. Virginia had taxed the tobacco of North Carolina; Pennsylvania had taxed the products of Maryland, of New Jersey, and of Delaware; and it was apparent, that every State, not possessed of convenient and accessible seaports, must hereafter submit to the same exactions, if this power were left unrestrained. Give it to the general government, said the advocates for a full revenue power, and the inconveniences attending its exercise by the separate States will be avoided. But those who were opposed to the possession of such a power by the general government, apprehended greater oppression by a majority of the States acting through the national legislature, than they could suffer at the hands of individual States. The eight Northern States, they said, had an interest different from the five Southern States, and in one branch of the legislature the former were to have thirty-six votes, and the latter twenty-nine.
From considerations like these, united with others which would render it nearly impracticable to select the objects of such taxation so as to make it operate equally, the restriction prevailed.[221] The revenue power was thus shorn of one great branch of taxation, which, however difficult it might be to practise it throughout such a country as this, is part of the prerogatives of every complete government, which was believed by many to be essential to the success of the proposed Constitution, but which was resisted successfully by others, as oppressive to their local and peculiar interests.
Was the commercial power to experience a like diminution from the full proportions of a just authority over the external trade of the States? Were the States, whose great homogeneous products, derived from the labor of slaves, would supply no revenue to the national treasury, to be left at liberty to import all the slaves that Africa could furnish? Were the commercial States to see the carrying trade of the country—embracing the very exports thus exempted from burdens of every kind, and thus stimulated by new accessions of slaves—pass into foreign bottoms, and be unable to protect their interests by a majority of votes in the national legislature? Was there to be no advantageous commercial treaty obtained from any foreign power, unless the measures needful to compel it could gain the assent of two thirds of Congress? Was the North to be shut out for ever from the West India trade, and was it at the same time to see the traffic in slaves prosecuted without restraint, and without the prospect or the hope of a final termination?
These were grave and searching questions. The vote exempting exports from the revenue power could not be recalled. It had passed by a decided majority of the States; and many suffrages had been given for the exemption, not from motives of a sectional nature, but on account of the difficulty that must attend the exercise of the power, and from the conviction that such taxation is incorrect in principle. So far, therefore, the Southern States had gained all that they desired in respect to the revenue power, and now three of them, with great firmness, declared that the question in relation to the commercial power was, whether they should or should not be parties to the Union. If required to surrender their right to import slaves, North Carolina, South Carolina, and Georgia would not accept the Constitution, although they were willing to make slaves liable to an equal tax with other imports.[222] It was also manifest, that the clause which required a navigation act to be passed by two thirds of each house, was to be insisted on by some, although not by all, of the Southern members.
Thus was a dark and gloomy prospect a second time presented to the framers of the Constitution. If, on the one side, there were States feeling themselves bound as a class to insist on certain concessions, on the other side were those by whom such concessions could not be made. The chief motive with the Eastern, and with most of the Northern States, in seeking a new union under a new frame of government, was a commercial one. They had suffered so severely from the effects of the commercial policy of England and other European nations, and from the incapacity of Congress to control that policy, that it had become indispensable to them to secure a national power which could dictate the terms and vehicles of commercial intercourse with the whole country. Cut off from the British West India trade by the English Orders in Council, the Eastern and Middle States required other means of counteracting those oppressive regulations than could be found in their separate State legislation, which furnished no power whatever for obtaining a single commercial treaty.[223] Besides these considerations, which related to the special interests of the commercial States, the want of a navy, which could only be built up by measures that would encourage the growth of the mercantile marine, and which, although needed for the protection of commerce, was also required for the defence of the whole country, made it necessary that the power to pass a navigation act should be burdened with no serious restrictions.
The idea of requiring a vote of two thirds in Congress for the passage of a navigation act, founded on the assumed diversity of Northern and Southern, or the commercial and the planting interests, proceeded upon the necessity for a distinct protection of the latter against the former, by means of a special legislative check. To a certain extent, as I have already said, these interests, when regarded in their aggregates, offered a real diversity. But it did not follow that this peculiar check upon the power of a majority was either a necessary or an expedient mode of providing against oppressive legislation. In every system of popular government, there are great disadvantages in departing from the simple rule of a majority; and perhaps the principle which requires the assent of more than a majority ought never to be extended to mere matters of legislation, but should be confined to treaty stipulations, and to those fundamental changes which affect the nature of the government and involve the terms on which the different portions of society are associated together.
It was undoubtedly the purpose of those who sought for this particular restriction, to qualify the nature of the government, in its relation to the interests of commerce. But the real question was, whether there existed any necessary reason for placing those interests upon a different footing from that of all other subjects of national legislation. The operation of the old rule of the Confederation, which required the assent of nine States in Congress to almost all the important measures of government, many of which involved no fundamental right of separate States, had revealed the inconveniences of lodging in the hands of a minority the power to obstruct just and necessary legislation. If, indeed, it was highly probable that the power, by being left with a majority, would be abused,—if the interests of the Eastern and Middle States were purely and wholly commercial, and would be likely so to shape the legislation of the country as to encourage the growth of its mercantile marine, at the expense of other forms of industry and enterprise, and no other suitable and efficient checks could be found,—then the restriction proposed might be proper and necessary.
But in truth the separate interests of the Eastern and Middle States, when closely viewed, were not in all respects the same. Connecticut and New Jersey were agricultural States. New York and Pennsylvania, although interested in maritime commerce, were destined to be great producers of the most important grains. Maryland, although a commercial, was also an agricultural State. The new States likely to be formed in the West would be almost wholly agricultural, and would have no more shipping than might be required to move the surplus products of their soil upon their great inland lakes towards the shores of the Atlantic. All these States, existing and expectant, were interested to obtain commercial treaties with foreign countries; all needed the benefits of uniform commercial regulations; but they were not all equally interested in a high degree of encouragement to the growth of American shipping, by means of a stringent navigation act, that would bear heavily upon the Southern planter.
Not only was there a very considerable protection against the abuse of its power by a sectional majority, in these more minute diversities of interest, but there were also two very efficient legislative checks upon that power already introduced into the government. If an unjust and oppressive measure had commanded a majority in the House, it might be defeated in the Senate, or, if that check should fail, it might be arrested by the executive.
It had, nevertheless, been made part of the limitations upon the commercial power, embraced in the report of the committee of detail, that a navigation act should require a vote of two thirds of both branches of the legislature. The vote which adopted the prohibition against taxes on exports, taken on the 21st of August, was followed, on that day and the next, by an excited debate on the taxation of the slave-trade, in which the three States of Georgia, North Carolina, and South Carolina made the limitation upon the power of the Union over this traffic the condition of their accepting the Constitution. This debate was closed by the proposition of Gouverneur Morris, to refer the whole subject to a committee of one from each State, in order that the three matters of exports, the slave-trade, and a navigation act might form a bargain or compromise between the Northern and the Southern States.[224] But the prohibition against taxing exports had already been agreed to, and there remained to be committed only the proposed restriction against taxing or prohibiting the migration or importation of such persons as the States might see fit to admit, the restriction which required a capitation tax to conform to the census, and the proposed limitation upon the power to pass a navigation act. Thus, in effect, the questions to come before this committee were, whether the slave-trade should be excepted from both the commercial and revenue powers of the general government, and whether the commercial power should be subjected to a restriction which required a vote of two thirds in dealing with the commercial interests of the Union.
We know very little of the deliberations of this committee; but as each State was equally represented in it, and as the position of the different sectional objects is quite clear, we can have no difficulty in forming an opinion as to the motives and purposes of the settlement which resulted from their action, or in obtaining a right estimate of the result itself.
In the first place, then, we are to remember the previous concessions already made by the Northern States, and the advantages resulting from them. These concessions were the representation of the slaves and the exemption of exports from taxation. If the slaves had not been included in the system of representation, the Northern States could have had no political motive for acquiring the power to put an end to the slave-trade. If the exports of their staple productions had not been withdrawn from the revenue power, the Southern States could have had no very strong or special motive to draw them into the new Union; but with such an exemption, they could derive benefits from the Constitution as great as those likely to be enjoyed by their Northern confederates. Both parties, therefore, entered the final committee of compromise with a strong desire to complete the Union and to establish the new government. The Northern States wished for a full commercial power, including the slave-trade and navigation laws, to be dependent on the voices of a majority in Congress. The Southern States struggled to retain the right to import slaves, and to limit the enactment of navigation laws to a vote of two thirds. Both parties could be gratified only by conceding some portion of their respective demands.
If the Northern States could accept a future, instead of an immediate, prohibition of the slave-trade, they could gain ultimately a full commercial power over all subjects, to be exercised by a national majority. If the Southern States could confide in a national majority, so far as to clothe them with full ultimate power to regulate commerce, they could obtain the continuance of the slave-trade for a limited period.
Such was in reality the adjustment made and recommended by the committee. They proposed that the migration or importation of such persons as the several States then existing might think proper to admit, should not be prohibited by the national legislature before the year 1800, but that a tax or duty might be imposed on such persons, at a rate not exceeding the average of the duties laid on imports; that the clause relating to a capitation tax should remain; and that the provision requiring a navigation act to be passed by a vote of two thirds, should be stricken out.[225]
No change was made in this arrangement, when it came before the Convention, except to substitute the year 1808 as the period at which the restriction on the commercial power was to terminate, and to provide for a specific tax on the importation of slaves, not exceeding ten dollars on each person.[226] The remaining features of this settlement, relating to a capitation tax and a navigation act, were sanctioned by a large majority of the States.[227]
Thus, by timely and well-considered concessions on each side, was the slave-trade brought immediately within the revenue power of the general government, and also, at the expiration of twenty years, within its power to regulate commerce. By the same means, the commercial power, without any other restriction than that relating to the temporary toleration of the importation of slaves, was vested in a national majority. This result at once placed the foreign slave-trade by American vessels or citizens within the control of the national legislature, and enabled Congress to forbid the carrying of slaves to foreign countries; and at the end of the year 1808, it brought the whole traffic within the reach of a national prohibition.[228]
Too high an estimate cannot well be formed, of the importance and value of this final settlement of conflicting sectional interests and demands. History has to thank the patriotism and liberality of the Northern States, for having acquired, for the government of the Union, by reasonable concessions, the power to terminate the African slave-trade. We know, from almost every day's experience since the founding of the government, that individual cupidity, which knows no geographical limits, which defies public opinion whether in the North or in the South, required and still requires the restraint and chastisement of national power. The separate authority of the States would have been wholly unequal to the suppression of the slave-trade: for even if they had all finally adopted the policy of a stringent prohibition, without a navy, and without treaties, they could never have contended against the bold artifice and desperate cunning of avarice, stimulated by the enormous gains which have always been reaped in this inhuman trade.
The just and candid voice of History has also to thank the Southern statesmen who consented to this arrangement, for having clothed a majority of the two houses of Congress with a full commercial power. They felt, and truly felt, that this was a great concession. But they looked at what they had gained. They had gained the exemption of their staple productions from taxation as objects of foreign commerce; the enumeration of their slaves in the basis of Congressional representation; and the settlement of the slave-trade upon terms not offensive to State pride. They had also gained the Union, with its power to maintain an army and a navy,—with its power and duty to protect them against foreign invasion and domestic insurrection, and to secure their republican constitutions. They looked, therefore, upon the grant of the power to regulate commerce by the ordinary modes of legislation, in its relations to the interests of a great empire, whose foundations ought to be laid broadly and deeply on the national welfare.[229] They saw that the Revolution had cost the Eastern States enormous sacrifices of commercial wealth, and that the weakness of the Confederation had destroyed the little remnant of their trade.[230] They saw and admitted the necessity for an unrestrained control over the foreign commerce of the country, if it was ever to rise from the prostrate condition in which it had been placed by foreign powers. They acted accordingly; and by their action, they enabled the States of North Carolina, South Carolina, and Georgia to enter the new Union without humiliation and without loss.[231]
Thus was accomplished, so far as depended on the action of this Convention, that memorable compromise, which gave to the Union its control over the commercial relations of the States with foreign nations and with each other. An event so fraught with consequences of the utmost importance cannot be dismissed without some of the reflections appropriate to its consideration.
Nature had marked America for a great commercial nation. The sweep of the Atlantic coast, from the Bay of Fundy to the Gulf of Florida, comprehending twenty degrees of latitude, broken into capacious bays and convenient harbors, and receiving the inward flow of the sea into great navigable rivers that stretched far into the interior, presented an access to the ocean not surpassed by that of any large portion of the globe. This long range of sea-coast embraced all the varieties of climate that are found between a hard and sterile region, where summer is but the breath of a few fervid weeks, and the ever blooming tropics, where winter is unknown. The products of the different regions, already entering, or fit to enter, into foreign commerce, attested as great a variety of soils. The proximity of the country to the West Indies, where the Eastern and the Middle States could find the best markets for some of their most important exports, afforded the promise of a highly lucrative trade; while the voyage to the East Indies from any American port could be performed in as short a time as from England or Holland or France. In the South, there were great staples already largely demanded by the consumption of Europe. In the North, there were fisheries of singular importance, capable of furnishing enormous additions to the wealth of the country. Beyond the Alleghanies, the West, with its vast internal waters and its almost unequalled fertility, had been opened to a rapid emigration, which was soon to lay the foundation of new States, destined to be the abodes of millions of men.
The very variety and extent of these interests had for many years occasioned a struggle for some mode of reconciling and harmonizing them all. But divided into separate governments, the commercial legislation of the States could produce nothing but the confusion and uncertainty which retaliation necessarily engenders. Different systems and rates of revenue were in force in seaports not a hundred miles apart, through which the inhabitants of other jurisdictions were obliged to draw their supplies of foreign commodities, and to export their own productions. The paper-money systems of the several States made the commercial value of coin quite different in different places, and gave an entirely insecure basis to trade.
The reader, who has followed me through the preceding volume, has seen how the people of the United States, from the earliest stages of the Revolution, struggled to free themselves from these embarrassments;—how they commenced with a jealous reservation of State authority over all matters of commerce and revenue; how they undertook to supply the necessities of a central government by contributions which they had not the power to make good, because their commercial condition did not admit of heavy taxation; how they endeavored to pass from this system to a grant of temporary revenues and temporary commercial regulation, to be vested in the federal Union; how they found it impracticable to agree upon the principles and details of a temporary power; how they turned to separate commercial leagues, each with its immediate neighbors, and were disappointed in the result or frustrated in the effort; and how at last they came to the conception of a full and irrevocable surrender of commercial and fiscal regulations to a central legislature, that could grasp the interests of the whole country and combine them in one harmonious system.
The influence of the commercial and revenue powers, thus obtained by the general government, on the condition of this country, has far exceeded the most sanguine hopes which the framers of the Constitution could have indulged. No one can doubt that the people of America owe to it both the nature and the degree of their actual prosperity;—and as the national prosperity has given them importance in the world, it is just and accurate to say, that commerce and its effects have elevated republican institutions to a dignity and influence which they have attained through no other of the forms or the spirit of society. Let the reader consider the interests of commerce, in their widest relations with all that they comprehend,—the interests of the merchant, the artisan, and the tiller of the soil being alike involved,—as the chief purpose of the new government given to this Union; let him contemplate this as the central object around which are arranged almost all the great provisions of the Constitution of the United States;—and he will see in it a wonderfully harmonious and powerful system, created for the security of property, and the promotion of the material welfare and prosperity of individuals, whatever their occupation, employment, or condition. That such a code of civil government should have sprung from the necessities of commerce, is surely one of the triumphs of modern civilization.
It is not to be denied, that the sedulous care with which this great provision was made for the general prosperity has had the effect of impressing on the national character a strong spirit of acquisition. The character of a people, however, is to be judged not merely by the pursuit or the possession of wealth, but chiefly by the use which they make of it. If the inhabitants of the United States can justly claim distinction for the benevolent virtues; if the wealth that is eagerly sought and rapidly acquired is freely used for the relief of human suffering; if learning, science, and the arts are duly cultivated; if popular education is an object of lavish expenditure; if the institutions of religion, though depending on a purely voluntary support, are provided for liberally, and from conscientious motives;—then is the national spirit of acquisition not without fruits, of which it has no need to be ashamed.
The objection, that the Constitution of the United States, and the immense prosperity which has flowed from it, were obtained by certain concessions in favor of the institution of slavery, results from a merely superficial view of the subject. If we would form a right estimate of the gain or loss to human nature effected by any given political arrangement, we must take into consideration the antecedent facts, and endeavor to judge whether a better result could have been obtained by a different mode of dealing with them. We shall then be able to appreciate the positive good that has been gained, or the positive loss that has been suffered.
The prominent facts to be considered in this connection are, in the first place, that slavery existed, and would long exist, in certain of the States; and that the condition of the African race in those States was universally regarded as a matter of purely local concern. It could not in fact have been otherwise; for there were slaves in every State excepting Massachusetts and New Hampshire; and among the other States in which measures had been, or were likely to be, taken for the removal of slavery, there was a great variety of circumstances affecting the time and mode in which it should be finally extinguished. As soon as the point was settled, in the formation of the Constitution of the United States, that the State governments were to be preserved, with all their powers unimpaired which were not required by the objects of the national government to be surrendered to the Union, the domestic relations of their inhabitants with each other necessarily remained under their exclusive control. Those relations were not involved in the purposes of the Federal Union.
So soon, also, as this was perceived and admitted, it became a necessary consequence of the admission, that the national authority should guarantee to the people of each State the right to shape and modify their own social institutions; for without this principle laid at the foundation of the Union, there could be no peace or security for such a mixed system of government.
In the second place, we have to consider the fact, that, among the political rights of the States anterior to the national Constitution, was the right to admit or to prohibit the further importation of slaves;—a traffic not then forbidden by any European nation to its Colonies, but which had been interdicted by ten of the American States. The transfer of this right to the Federal Union was a purely voluntary act; it was not strictly necessary for the purposes for which it was proposed to establish the Constitution of the United States; although there were political reasons for which a part of the States might wish to acquire control over this subject, as well as moral reasons why all the States should have desired to vest that control in the general government. Three of the States, however, as we have seen, took a different view of their interest and duty, and declined to enter the new Union unless this traffic should be excepted from the power over commerce for a period of twenty years.
It is quite plain, that, if these facts had been met and dealt with in a manner different from the settlement that was actually made, one of two consequences must have ensued;—either no Constitution at all could have been adopted, or there would have been a Union of some kind, from which three at least of the States must have been excluded. If the first, by far the most probable contingency, had happened, a great feebleness and poverty of society must have continued to be the lot of all these States; there must have been perpetual collisions and rival confederacies; there certainly would have been an indefinite continuance of the slave-trade, accompanied and followed by a great external pressure upon the States which permitted it, which would have led to a war of races, or to a frightful oppression of the slaves. Most of these evils would have followed the establishment of a partial confederacy.
On the other hand, we are to consider what has been gained to humanity by the establishment of the Constitution. The extinction of the slave-trade, followed by a public opinion with reference to it that is as strong and reliable in the Southern as in the Northern States, was purchased at a price by no means unreasonable, when compared with the magnitude of the acquisition. The great prosperity and high civilization which are due to the commercial power of the Constitution have been a vast benefit to both races;—to the whites by the superior refinement they have created, and to the blacks by the gradual but certain amelioration of their condition. The social strength and security occasioned by constantly increasing wealth, combined with the acknowledgment and establishment of the doctrine which makes every State the uncontrolled arbiter of the domestic condition of its inhabitants, has put it in the power of those who have charge of the negro to deal prudently and wisely with their great problem, without the interference of those who could benefit neither race by their intervention. This, in every rational view of the subject, cannot but be regarded as one of the chief blessings conferred by the Constitution of the United States.
It has made emancipation possible, where otherwise it would have been impossible, or where it could have been obtained only through the horrors of both servile and civil war. It has enabled local authorities to adapt changes to local circumstances. Its beneficent influences may be traced in the laws of the States, in the records of their jurisprudence, and in the advanced and advancing condition of their public sentiment; and he who should follow those influences in all their details, and count the sum of what it has effected for the moral and physical well-being of the subjected race, would find cause for devout gratitude to the Ruler of the Universe. Great as has been the increase of slaves in the United States during the last seventy years, there can be no question that the general improvement of their condition has been equally great, and that it has kept pace with the increasing prosperity of the country. That prosperity has enabled individual enterprise and benevolence to plant a colony upon the coast of Africa, which, after centuries of discipline and education, may yet be the means of restoring to its native soil, as civilized and Christian men, a race that came to us as heathens and barbarians.
Surely, then, with such results to look back upon, with such hopes in the future, the patriot and the Christian can have no real cause for regret or complaint, that in a system of representative government, made necessary by controlling circumstances, the unimportant anomaly should be found, of a representation of men without political rights or social privileges; or that the question of emancipation, either for the mass or the individual, should be carefully secured to local authority; or even that the slave-trade should have been prosecuted for a few years, to be extinguished by America first of all the nations of the world.