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CHAPTER XIV.

THE CONSTITUTION ACCORDING TO THE PRACTICE OF THE

GOVERNMENT.

Uniform practice under a law is one of the highest proofs of the meaning of that law.

APPORTIONMENT Of RepresentativES. (Const. Art. 1, sec. 2.)

THE Constitution (Art. 1, sec. 2, par. 3) provides that the enumeration of the people of the United States (upon which the apportionment of representatives and direct taxes was to be made) "shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct."

On the 1st of March, 1790, George Washington, who had been president of the Convention which framed the Constitution, approved" an Act providing for the enumeration of the inhabitants of the United States." The first Congress ever assembled, and the first President ever elected, under the Constitution, under the sanction of their respective oaths to support the Constitution," by this Act expressed their deliberate judgment as to the true meaning of the people of the United States in adopting this section of the Constitution. What, in their judgment, was such meaning?

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These extracts from the Act will suffice (Act 1790, chap. 29):

Sec. 1: "Be it enacted, &c. That the marshals of the several districts of the United States shall be, and they are hereby, author

ized and required to cause the number of the inhabitants within their respective districts to be taken, omitting, in such enumeration, Indians not taxed, and distinguishing free persons, including those bound to service for a term of years, from all others; distinguishing also the sexes and colors of free persons, and the free males of sixteen years and upwards from those under that age: for effecting which purpose, the marshals shall have power to appoint as many assistants within their respective districts as to them shall appear necessary, assigning to each assistant a certain division of his district," &c.

These assistants were obliged to transmit to the marshals, returns in manner following:

"The number of persons within my division, consisting of appears in a schedule hereunto annexed, subscribed by me, this day of

Names of heads of families.

179

Free white males of sixteen years and upwards, including heads of families.

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That is, the enumeration directed to be made, and upon the basis of which the constitutional apportionment of representatives and direct taxes was to be made, distinguished only between free persons and slaves. Congress and the President, under the sanction of their oaths, united in the expression of their deliberate judgment, that the people of the United States, by the expression (Art. 1, sec. 2) "three-fifths of all other persons," intended "three-fifths of the slaves," because, in passing this Act, they declare that all other persons not free within the meaning of this section are slaves.

The second Congress, at its first session, passed "An Act for apportioning representatives among the several States, according to the first enumeration" (Stat. 1792, c. 23). The language of the statute is as follows:

Sec. 1: "Be it enacted, &c. That from and after the third day of March, one thousand seven hundred and ninety-three, the House of Representatives shall be composed of members elected agreeably to a ratio of one member for every thirty-three thousand persons in each State, computed according to the rule prescribed by the Constitution, that is to say, within the State of New Hampshire, four," &c. &c.

That is, the second Congress, upon an enumeration distinguishing only freemen from slaves, undertake to apportion representatives among the States according to the rule laid down in the Constitution, viz. by adding to the whole number of free persons "three-fifths of the slaves."

This interpretation, by the first and second Congress, has never been varied from. In every census which has since been taken, the only distinction sanctioned has been between freemen and slaves; and, on every occasion of apportioning representatives, according the representative or federal number, such number has been invariably determined by adding to the whole number of free persons, three-fifths of the slaves. If this, the pro-slavery, interpretation of this section of the Constitution is not right, then, since March 3, 1793, there has not been a single House of Representatives constitutionally elected, or a single statute or resolve constitutionally passed! Who is ready to make this admission?

PERMISSION OF THE AFRICAN SLAVE-TRADE.

sec. 9.)

On the 13th of May 1789, in Congress,

(Const. Art. 1,

"Mr. Parker (of Va.) moved to insert a clause in the bill, imposing a duty on the importation of slaves of ten dollars each person. He was sorry that the Constitution prevented Congress from prohibiting the importation altogether; he thought it a defect in that instrument that it allowed of such actions; it was contrary to the revolution principles, and ought not to be permitted; but, as he could not do all the good he desired, he was willing to do what lay in his power.

"Mr. Sherman (of Ct.) approved of the object of the motion; but he did not think this bill was proper to embrace the subject. He could not reconcile himself to the insertion of human beings, as an article of duty, among goods, wares, and merchandise. He hoped it would be withdrawn for the present, and taken after as an independent subject.

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"Mr. Schureman (of N. J.) hoped the gentleman would withdraw his motion, because the present was not the time or place for introducing the business; he thought it had better be brought forward in the House, as a distinct proposition.

"Mr. Madison (of Va.): I cannot concur with gentlemen who think the present an improper time or place to enter into a discussion of the proposed motion. If it is taken up in a separate view, we shall do the same thing, at a greater expense of time.

"I conceive the Constitution, in this particular, was formed in order that the government, whilst it was restrained from laying a total prohibition, might be able to give some testimony of the sense of America with respect to the African trade. We have liberty to impose a tax or duty upon the importation of such persons as any of the States now existing shall think proper to admit ; and this liberty was granted, I presume, upon two considerations: the first was, that, until the time arrived when they might abolish the importation of slaves, they might have an opportunity of evidencing their sentiments on the policy and humanity of such a trade; the other was, that they might be taxed in due proportion with other articles imported; for, if the possessor will consider them as property, of course they are of value, and ought to be paid for."

After a very considerable discussion, in which this section of the Constitution was referred to by various members, and the constitutionality of Mr. Parker's motion admitted, with the advice of Mr. Madison his colleague, Mr. Parker consented to withdraw his motion.

In 1794, "An Act to prohibit the carrying on the slavetrade from the United States to any foreign place or country was passed (Stat. 1794, c. 11). In 1800, an Act in addition to the last was passed (Stat. 1800, c. 51). That both these laws were framed with reference to this section of the Constitution is apparent, because the latter Act expressly refers

to it. Sec. 6 reads thus, "That nothing in this Act contained shall be construed to authorize the bringing into either of the United States any person or persons, the importation of whom is, by the existing laws of such State, prohibited." In 1803 (Stat. 1803, c. 63) was passed "An Act to prevent the importation of certain persons into certain States, where, by the laws thereof, their admission is prohibited."

Sec. 1: "Be it enacted, &c. That, from and after the first day of April next, no master or captain of any ship or vessel, or any other person, shall import or bring, or cause to be imported or brought, any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States, or seamen, natives of countries beyond the Cape of Good Hope, into any port or place of the United States, which port or place shall be situated in any State which by law has prohibited, or shall prohibit, the admission or importation of such negro, mulatto, or other person of color," &c. &c.

This Act also is most manifestly framed upon this section of the Constitution. It renders illegal the importation of any negro, mulatto, or person of color, into States prohibiting such importation, unless such negro, &c. is a native, citizen, or registered seaman of the United States, or native of countries beyond the Cape of Good Hope; that is, it renders illegal the importation of African negroes into any State whose laws prohibit such importation. And, as no African negro has yet been imported as a free laborer, this Act was directed against the African slave-trade.

And, not to multiply proof, the importation of persons is not to be prohibited by Congress prior to 1808. On the 2d day of March, 1807, President Jefferson approved (Stat. 1807, c. 77) "An Act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the first day of January, in the year of our Lord one thousand eight hundred and eight." That is, at the very earliest day allowed by Const. Art. 1, sec. 9, for the passage by Congress of an Act prohibiting the importation of persons, a law is passed totally prohibiting the importation of slaves.

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