Despotism in America: An Inquiry into the Nature,...

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232 DESI'O'r!Sl\T admission of the weaJth-produci11g inefficiency of slaves as compared with frecme~1, had prop~sed_ to amend the articles of confederatiOn by substltutlllg as the basis of taxation, and of the distribu~io n among the states of the expenses of the Revoluhonar:y. war, "the whole nuffiber of white and other free cJbzcns and inhabitants of every age, sex, and condition, in­cludinO' those bound to servitude for a term of years, and t!t~ee fifths of all other persons not comprehended in t!te foregoinrr description;'' and t his proposed amendment, ag~eed to in Congress after a good deal of higglinCT between the northern and southern members as to ihe relative productiveness of free and •lave labor, had been already acceded to by eleven out. of the thirteen states. The question of t he mcas· urc ·of wealth as the basis of representation being now ra ised in the convention, the same compromi::)e was suggested there; and, h avit~g first agreed that rcpr~­senration and direct taxatiOn should go together, It was finally arranged, and so it now stands in the ~cd­f'ral constitution, that the number of repres~utatJves from each state shall be determined "by adding to the whole number of free persons, including t~10se bo_und to service for a term of years, and cxcludmg Ind1ans not taxed, tltree fifths of all other persons." The question then is, whether the phrase tltree fifths of all other persons recognizes the validity of t he _sl_ave laws of any particular state, and aflOrds ~ sufl1ct~nt basis for those laws to stand upon, notwtthstand111g their oriNinal defects already pointed out. Let us ob· serve, in" the firgt place, that the validity of those Jaws was uot of the least consequence in settling the p01nt under consideration, to wit, the productiveness of the industry-in other words, the relative wealth- ?f t!te several states. Whether the negroes of Virgima, for inst·ance, were held in slavery by law or against law, made in that point of view, no difiCrence. Suppose, for ex'ample, (as we haJJ ,) that they were illegally de· prived of their liberty; t he illegality of their serYitude would not increase their industry, nor the wealth of IN AMERICA, 233 the state! so as to ~n~i tle her whole population to be counted ~~ d:term111mg her representation. "VVhat the constltutwn had to deal with, in settling this distribution of representation, was a question of ex­ternal fact, not a question of law or riaht. The question of the individual rights of the i~habitants of the states was one over which this a rticle rC'­quired the assumption of no control. Their con­dition in fact, not their condition in law was the real point according to which the distributi~n was to be regulated. ' But even in referring to the matter of fact great caution was used. "'rhe que~tion of slavery in the states," said Gerry, in reference to another point to be presently considered, "ought not to be touch_ed, but we ought to be careful not to give it any sanc­tion." Madison thought it wrona to admit into the ?onstitu~\on "t_he i_dea that thcr~ could be property 111 men; and 1n his report of the dom!!S of that con­vention, to which we a rc mainly indebted for what we kno_w of 1t, he represents the whole phraseology of the mstrument to have been carefully settled in accordance with that view. Thus, in the oria inal draft of the clause above cited, instead of bow~d to service, the phrase bound to servitude had been used, following in t his respect the proposed amendment to the artiCles of confederation from which the idea of the Federal ratio was derived; but servitude was struck out, and service substituted, as lVIadison in­fo: ms us, because servitude seemed to be only appro­pnate to express the condition of slavery. It is fair enough to conclude t hat 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 t hem slaves, nor by usmg any term t hat would seem to pass a ~ud~rnent on the legal character or partjcular legal InCidents of their condition. That remained what it was; this article did not a ffect it in any way; and if the laws of the states fail, as we maintain, to give any 20"