By this section, persons are divided into those who are free and those who are slaves; for to the whole number of free persons are to be added three-fifths of all other persons, that is, persons not free, or slaves. If we adopt the plain, obvious, and common meaning of the words as their true meaning, this conclusion is incontrovertible.
It is sometimes urged, that by "free person" is meant "citizen." But the expression cannot be taken in any such technical sense. Under the expression "free persons" are included those bound to service for a term of years, and therefore from it are excluded those bound to service for life, or slaves.
This article, therefore, recognizes slavery as explicitly as if the word slave itself had been used, and gives to the free persons in a Slave State, solely because they are slaveholders, a larger representation, and consequently greater political power, than the same number of free persons in a Free State. A BOUNTY ON SLAVEHOLDING!
Art. 1, sec. 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."
It is clear that this section recognizes a difference between the meaning of migration and importation, since, if both words mean the same thing, no reason whatever can be assigned why a tax is not permitted in both cases. This difference, whatever it is, must afford a good reason why persons imported may be taxed, and persons migrating not. The true meaning of the section seems obvious. A person who migrates does so of his own accord: he cannot be said to be migrated by any other person. He is wholly a free agent. A person who is imported does not import himself, but is imported by some other person. He is passive. The importer is the free agent; the person imported is not a free agent. Thus the slave-laws of Virginia of 1748[W] and 1753[X] begin—"All persons who have been or shall be imported," &c. &c. "shall be accounted and be slaves." Whenever we hear an importation spoken of, we instantly infer an importer, an owner, and property imported. This distinction between the meaning of the two words is, then, real. It affords a good reason for the restriction on the right to tax. Therefore, we say, it is the true distinction. On our construction, Congress had power to lay a tax on persons imported as property or slaves, but had no right to tax free persons migrating.
By this clause, therefore, Congress was prevented, during twenty years, from prohibiting the foreign slave-trade with any State that pleased to allow it. But, by Art. 1, sec. 8, Congress had the general power "to regulate commerce with foreign nations." Consequently, the slave-trade was excepted from the operation of the general power, with a view to place the slave-trade, during twenty years, solely under the control of the Slave States. It could not be wholly stopped, so long as one State wished to continue it. It is a clear compromise in favor of slavery. True, the compromise was a temporary one; but it will be noticed, that Congress, even after 1808, was not obliged to prohibit the trade; and, in point of fact, until 1819 the laws of Congress authorized the States to sell into slavery, for their own benefit, negroes imported contrary to the laws of the United States! (Act Congr. 1807, c. 77, § 4, 6; 1818, c. 86, § 5 and 7; 10 Wheat. Rep. 321, 322.) So unmixed should be our satisfaction at the oft-repeated boast, that ours was the first nation to prohibit the African slave-trade!
Art. 4, sec. 2: "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up, on claim of the party to whom such service or labor may be due."
The time of holding not being limited, the expression here used must include not only persons held to service or labor for a term of years, but also those held to service or labor for life. Consequently, it includes those who are free persons within the meaning of Art. 1, sec. 2, and slaves or persons held to service or labor for life.
That the expression "person held to service or labor" was a correct definition of the condition of a slave, at the time the Constitution was adopted, is evident. The sixth article of the North-western ordinance reads thus: "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted; provided always, that, any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid." In other words, the expression "a person from whom labor or service is lawfully claimed" so correctly described the condition of a slave, that Congress deemed it necessary to except such persons from the operation of an article relating only to slaves. In less than three months after the passage of this ordinance, this clause in the Constitution was drafted. It needs no argument to show, that the expression in the Constitution means the same as that in the ordinance. "A person from whom labor or service is lawfully claimed in any one of the original States" means the same as "a person held to service or labor in one State under the laws thereof." If the former correctly described the condition of a slave, the latter did also.
We can, however, see that the expression does properly describe the legal condition of a slave. A slave, though an article of property, has always and in every State been recognized as a person, by being held criminally responsible for his acts. Thus the preamble to the Act of South Carolina (May 10, 1740; 1 Grimke's Laws, 165), which provides for the trial of slaves, recites that "natural justice forbids that any person, of what condition soever, should be condemned unheard;" and the Act of Georgia of 1770 (Prince's Dig. 777) provides for the trial of "slaves and other persons." The Act of Virginia (1748, sec. 15; 5 Hen. Stat. 547) and North Carolina (1741, sec. 29; Iredell, Stat. 62-66) call runaway slaves persons in so many words. Similar laws might be cited, if deemed necessary. A slave is also held to labor and service for life by law. Labor and service are the lot of every slave. "To slave" means "to toil." It is sometimes denied, but nevertheless it is true, that the law recognizes that labor and service are legally due from the slave to his master. Thus the Act of North Carolina (1741, sec. 27), before quoted, makes it a criminal offence to tempt or persuade a slave to leave his master's "service." "Service" is recognized as being legally due from a slave in Virginia (Act 1691, 3 Hen. Stat. 86, 87). The Provincial Assembly of South Carolina (Act 1740, sec. 44) provided that,—