To Robert Walsh Jr.
Montpellier Novr. 27. 1819
Your letter of the 11th was duly recd, and I should have given it a less tardy answer, but for a succession of particular demands on my attention, and a wish to assist my recollections, by consulting both Manuscript & printed sources of information on the Subjects of your enquiry. Of these, however, I have not been able to avail myself, but very partially.
As to the intention of the framers of the Constitution in the clause relating to “the Migration and importation of persons &c” the best key may perhaps be found in the case which produced it. The African trade in Slaves had long been odious to most of the States, and the importation of Slaves into them had been prohibited. Particular States, however continued the impor[ta]tion, and were extremely averse to any restriction on their power to do so. In the Convention the former States were anxious, in framing a new constitution, to insert a provision for an immediate and absolute stop to the trade. The latter were not only averse to any interference on the subject; but solemnly declared that their constituents would never accede to a Constitution containing such an article. Out of this conflict grew the middle measure providing that Congress should not interfere until the year 1808; with an implication, that after that date, they might prohibit the importation of Slaves into the States then existing, & previous thereto, into the states not then existing. Such was the tone of opposition in the States of S. Carolina & Georgia, & such the desire to gain their acquiescence in a prohibitory power, that on a question between the epochs of 1800 & 1808, the States of N. Hampshire, Massatts. & Connecticut, (all the eastern States in the Convention) joined in the vote for the latter, influenced however by the collateral motive of reconciling those particular States to the power over commerce & navigation; against which they felt, as did some other States, a very strong repugnance. The earnestness of S. Carolina & Georgia was further manifested by their insisting on the Security in the V. article, against any amendment to the Constitution affecting the right reserved to them, & their uniting with the small states who insisted on a like security for their equality in the Senate.
But some of the States were not only anxious for a constitutional provision against the introduction of Slaves. They had scruples against admitting the term “Slaves” into the Instrument. Hence the descriptive phrase “migration or importation of persons”; the term migration allowing those who were scrupulous of acknowledging expressly a property in human beings, to view imported persons as a species of emigrants, whilst others might apply the term to foreign malefactors sent or coming into the Country. It is possible tho’ not recollected, that some might have had an eye to the case of freed blacks, as well as malefactors.
But whatever may have been intended by the term “migration” or the term “persons,” it is most certain, that they referred, exclusively, to a migration or importation from other countries into the U. States; and not to a removal, voluntary or involuntary, of Slaves or freemen, from one to another part of the U. States. Nothing appears or is recollected that warrants this latter intention. Nothing in the proceedings of the State conventions indicates such a construction there.1 Had such been the construction it is easy to imagine the figure it would have made in many of the states, among the objections to the constitution, and among the numerous amendments to it proposed by the state conventions,2 not one of which amendments refers to the clause in question. Neither is there any indication that Congress have heretofore considered themselves as deriving from this Clause a power over the migration or removal of individuals, whether freemen or slaves, from one State to another, whether new or old: For it must be Kept in view that if the power was given at all, it has been in force eleven years over all the States existing in 1808, and at all times over the States not then existing. Every indication is against such a construction by Congress of their constitutional powers. Their alacrity in exercising their powers relating to slaves, is a proof that they did not claim what they did not exercise. They punctually and unanimously put in force the power accruing in 1808 against the further importation of Slaves from abroad. They had previously directed their power over American vessels on the high Seas, against the African trade. They lost no time in applying the prohibitory power to Louisiana, which having maritime ports, might be an inlet for slaves from abroad. But they forbore to extend the prohibition to the introduction of slaves from other parts of the Union. They had even prohibited the importation of slaves into the Mississippi Territory from without the limits of the U. S, in the year 1798, without extending the prohibition to the introduction of slaves from within those limits; altho, at the time, the ports of Georgia and S. Carolina were open for the importation of Slaves from abroad, and encreasing the mass of slavery within the U. States.
If these views of the subject be just, a power in Congress to controul the interior migration or removals of persons, must be derived from some other source than Sect 9, Art. I, either from the clause giving power “to make all needful rules and regulations respecting the Territory or other property belonging to the U. S.; or from that providing for the admission of New States into the Union.”
The terms in which the 1st of these powers is expressed, tho’ of a ductile character, cannot well be extended beyond a power over the Territory as property, & a power to make the provisions really needful or necessary for the Govt of Settlers until ripe for admission as States into the Union. It may be inferred that Congress did not regard the interdict of slavery among the needful regulations contemplated by the constitution; since in none of the Territorial Governments created by them, is such an interdict found. The power, however be its import what it may, is obviously limited to a Territory whilst remaining in that character as distinct from that of a State.
As to the power of admitting new States into the federal compact, the questions offering themselves are; whether congress can attach conditions, or the new State concur in conditions, which after admission, would abridge or enlarge the constitutional rights of legislation, common to the other State[s]; whether Congress can by a compact with a new Member take power, either to or from itself, or place the new member above or below the equal rank & rights possessed by the others: whether all such stipulations, expressed or implied would not be nullities, and so pronounced when brought to a practical test. It falls within the Scope of your inquiry, to state the fact, that there was a proposition in the convention to discriminate between the old and new States, by an Article in the Constitution declaring that the aggregate number of representatives from the States thereafter to be admitted, should never exceed that of the States originally adopting the Constitution. The proposition happily was rejected. The effect of such a descrimination, is sufficiently evident.
In the case of Louisiana, there is a circumstance which may deserve notice. In the Treaty ceding it, a privilege was retained by the ceding party, which distinguishes between its ports & others of the U. S. for a special purpose, & a Short period.3 This privilege however was the result not of an ordinary legislative power in Congress; nor was it the result of an arrangement between Congress & the people of Lou[i]siana. It rests on the ground that the same entire power, even in the nation, over that territory as over the original territory of the U. S never existed; the privelege alluded to being in the deed of cession carved by the foreign owner, out of the title conveyed to the purchaser. A sort of necessity therefore was thought to belong to so peculiar & extraordinary a case. Notwithstanding this plea it is presumable that if the privelege had materially affected the rights of other ports, or had been of a permanent or durable character, the occurence would not have been so little regarded.4 Congress would not be allowed to effect through the medium of a Treaty, obnoxious discriminations between new and old States, more than among the latter.
With respect to what has taken place in the N. W. Territory, it may be observed, that the ordinance giving its distinctive character on the Subject of Slave holding, proceeded from the old Congress, acting, with the best intentions, but under a charter which contains no Shadow of the authority exercised. And it remains to be decided how far the States formed within that Territory & admitted into the Union, are on a different footing from its other members, as to their legislative sovereignty.
For the grounds on which ⅗ of the Slaves were admitted into the ratio of representation, I will with your permission, Save trouble by referring to No 54 of the Federalist.5 In addition, it may be Stated that this feature in the Consti[tu]tion was combined with that relating to the power over Commerce & navigation. In truth these two powers, with those relating to the importation of Slaves, & the Articles establishing the equality of representation in the Senate, & the rule of taxation, had a complicated influence on each other which alone would have justified the remark, that the Constitution was “the result of mutual deference & Concession.”6
It was evident that the large States holding slaves, and those not large which felt themselves so by anticipation, would not have concurred in a Constitution, allowing them no more representation in one Legislative Branch than the smallest States, and in the other less than their proportional contributions to the Common Treasury.
The considerations which led to this mixed ratio, which had been very deliberately agreed on in Apl. 1783. by the old Congress,7 make it probable that the Convention could not have looked to a departure from it, in any instance where slaves made a part of the local population.
Whether the Convention could have looked to the existence of slavery at all in the new States is a point on which I can add little to what has been already stated. The great object of the Convention seemed to be to prohibit the increase, by the importation, of slaves. A power to emancipate slaves was disclaimed: Nor is any thing recollected that denoted a view to controul the distribution of those within the Country. The case of the N. Western Territory was probably superseded by the provision agst. the importation of slaves by S. Carolina & Georgia, which had not then passed laws prohibiting it. When the existence of slavery in that territory was precluded, the importation of slaves was rapidly going on, and the only mode of checking it was by narrowing the space open to them. It is not an unfair inference that the expedient would not have been undertaken, if the power afterwards given to terminate the importation every where, had existed or been even anticipated. It has appeared that the present Congress never followed the example during the twenty years preceding the prohibitory epoch.
The expediency of exercising a supposed power in Congress, to prevent a diffusion of the slaves actually in the Country, as far as the local authorities may admit them, resolves itself into the probable effects of such a diffusion on the interests of the slaves and of the Nation.
Will it or will it not better the condition of the slaves, by lessening the number belonging to individual Masters, and intermixing both with greater Masses of free people? Will partial manumissions be more or less likely to take place, and a general emancipation be accelerated or retarded? Will the moral & physical condition of slaves, in the mean time, be improved or deteriorated? What do experience and appearances decide as to the comparative rates of generative increase, in their present, and, in a dispersed, situation?
Will the aggregate strength security tranquility and harmony of the whole nation be advanced or impaired by lessening the proportion of slaves to the free people in particular sections of it?
How far an occlusion of the space now vacant, agst. the introduction of slaves may be essential to prevent compleatly a smuggled importation of them from abroad, ought to influence the question of expediency, must be decided by a reasonable estimate of the degree in which the importation would take place in spight [sic] of the spirit of the times, the increasing co-operation of foreign powers agst. the slave trade, the increasing rigor of the Acts of Congress, and the vigilant enforcement of them by the Executive; and by a fair comparison of this estimate with the considerations opposed to such an occlusion.
Will a multiplication of States holding slaves, multiply advocates of the importation of foreign slaves, so as to endanger the continuance of the prohibitory Acts of Congress? To such an apprehension seem to be opposed the facts, that the States holding fewest slaves are those which most readily abolished slavery altogether; that of the 13 primitive States Eleven had prohibited the importation before the power was given to Congs.: that all of them with the newly added States, unanimously concurred in exerting that power: that most of the present slaveholding States can not be tempted by motives of interest to favor the re-opening of the ports to foreign slaves; and that these, with the States which have even abolished Slavery within themselves, could never be outnumbered in the National Councils by new States wishing for slaves, and not Satisfied with the supply attainable within the U. S.
On the whole, the Missouri question, as a constitutional one, amounts to the question, whether the condition proposed to be annexed to the admission of Missouri would or would not be void in itself, or become void the moment the territory should enter as a State within the pale of the Constitution: And as a question of expediency & humanity, it depends essentially on the probable influence of such restrictions on the quantity & duration of slavery, and on the general condition of slaves in the U. S.
The question raised with regard to the tenor of the stipulation in the Louisiana Treaty, on the subject of its admission, is one which I have not examined, and on which I could probably throw no light if I had.
Under one aspect of the general subject, I can not avoid saying, that apart from its merits under others, the tendency of what has passed and is passing, fills me with no slight anxiety. Parties under some denominations or other must always be expected in a Govt. as free as ours. When the individuals belonging to them are intermingled in every part of the whole Country, they strengthen the union of the Whole, while they divide every part. Should a State of parties arise, founded on geographical boundaries and other physical & permanent distinctions which happen to coincide with them, what is to controul those great repulsive Masses from awful shocks agst. each other?
The delay in answering your letter made me fear you might doubt my readiness to comply with its requests. I now fear you will think I have done more than these justified. I have been the less reserved because you are so ready to conform to my inclination formerly expressed, not to be drawn from my sequestered position into public view.
Since I thanked you for the copy of your late volume I have had the pleasure of going thro’ it: and I should have been much disappointed, if it had been recd. by the public with less favor than is every where manifested. According to all accounts from the Continent of Europe, the American character has suffered much there by libels conveyed by British Prints, or circulated by itinerant Calumniators. It is to be hoped the truths in your Work may find their way thither. Good translations of the Preface alone could not but open many eyes which have been blinded by prejudices against this Country.
FC (DLC). Partially in John Payne Todd’s hand. In the top margin of the first page, JM wrote: “Robert Walsh.” On the verso of a leaf following p. 3, JM (perhaps at a later date) wrote: “Missouri question & construction of ‘migration’ &ce.” Minor emendations and interlinings by JM in Todd’s portion of the FC have not been noted.
1. Todd placed an asterisk here and in the bottom margin wrote: “*The debates of the Pennsylvania convention contain a Speech of Mr Wilson [here JM added an asterisk and in the bottom margin wrote: “*See letter of J. M. to Mr. Walsh Jany. 11. 1820.”] (Decr 3—1787) who had been a member of the general convention, in which, alluding to the clause tolerating for a time, the further importation of Slaves, he consoles himself ‘with the hope that in a few years it would be prohibited altogether[’]; observing that in the mean time, the new ‘States which were to be formed would be under the controul of Congress in this particular, and slaves would never be introduced among them.’ In another speech on the day following and alluding to the same clause, his words are ‘yet the lapse of a few years & Congress will have power to exterminate slavery within our borders.’ How far the language of Mr W. may have been accurately reported is not known. The expressions used, are more vague & less consistent than would be readily ascribed to him. But as they stand, the fairest construction would be, that he considered the power given to Congress, to arrest the importation of Slaves as ‘laying a foundation for banishing slavery out of the Country; & tho at a period more distant than might be wished, producing the same kind of gradual change which was pursued in Pennsylvania[’] (see his Speech page 90 of the Debates). By this ‘Change’ after the example of Pennsylvania, he must have meant a change by the other States influenced by that example, & yeilding to the general way of thinking & feeling, produced by the policy of putting an end to the importation of slaves. He could not mean by ‘banishing Slavery,’ more than by a power ‘to exterminate it,’ that Congress were authorized to do what is literally expressed.”
2. Todd placed an asterisk here and in the bottom margin wrote: “*In the Convention of Virga. the opposition to the Constitution comprized a number of the ablest men in the State. Among them were Mr Henry & Col Mason; both of them distinguished by their acuteness, and anxious to display unpopular constructions. One of them Col Mason had been a member of the general convention and entered freely into accounts of what passed within it. Yet neither of them, nor indeed any of the other opponents, among the multitude of their objections, and far fetched interpretations, ever hinted, in the debates on the 9th Sect of Ar. I. at a power given by it, to prohibit an interior migration of any Sort. The meaning of the Secn. as levelled against migrations or importations from abroad was not contested.”
3. Article VII of the Louisiana Purchase treaty of 1803 guaranteed that French and Spanish ships, coming directly from France or Spain, or any of their colonies, and loaded only with their own produce or manufactures, would be admitted to the port of New Orleans and “in all other legal ports-of-entry within the ceded territory” and treated in the same manner as American-owned vessels for the space of twelve years (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:502–3).
4. Here JM crossed out “have produced more criticism than it did” and interlined “not have been so little regarded.”
5. For The Federalist Number 54, see PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (1st ser., vols. 1–10, Chicago, 1962–77, vols. 11–17, Charlottesville, Va., 1977–91). description ends , 10:499–503.
6. At this point the FC in Todd’s hand ends; the remainder is in JM’s hand.