Confederate constitution article 1 section 9 clause 4

Introduction

Sections 4, 5, and 6, of Article VII of the Committee of Detail Report, August 6, 1787, restrained the 18 powers granted to Congress. Included in that list of powers was the power to regulate international commerce. Five delegates wrote this first draft of the Constitution: Nathaniel Gorham from Massachusetts, Edmund Randolph from Virginia, James Wilson from Pennsylvania, Oliver Ellsworth from Connecticut, and John Rutledge from South Carolina.                                                                     

Article VII, Sections 4, 5, and 6

Section 4. No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migration or importation be prohibited.

Section 5. No capitation tax shall be laid, unless in proportion to the census herein before directed to be taken.

Section 6. No navigation act shall be passed without the assent of two-thirds of the members present in each House.

According to Section 4, what we now call the slave trade is completely 1) in the hands of each state and 2) out of the reach of Congress forever. Note that the word “slavery” is not mentioned.

The Three Sides

Three sides emerged in late August: principle, interest, and politics.

1. John Langdon “was strenuous for giving the power to the general government. He could not, with a good conscience, leave it with the States, who could then go on with the traffic.” John Dickinson, Luther Martin, George Mason, James Madison, Gouverneur Morris, James Wilson, and Edmund Randolph also opposed the slave trade on the grounds of principle. Martin argued that the slave trade was “inconsistent with the principles of the Revolution, and dishonorable to the American character, to have such a feature in the Constitution.” Mason stated that “every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country.”

2. Hugh Williamson, from North Carolina, reminded the delegates of political reality. “The Southern States could not be members of the Union, if the clause should be rejected.” He added: “both in opinion and practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in South Carolina and Georgia on those terms, than to exclude them from the Union.” Rutledge, chairman of the Committee of Detail, proclaimed: “Religion and humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is, whether the Southern States shall or shall not be parties to the Union. . . . If the Convention thinks that North Carolina, South Carolina, and Georgia, will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain. The people of those States will never be such fools as to give up so important an interest.” Charles Pinckney agreed: “If slavery be wrong, it is justified by the example of all the world.”

3. Roger Sherman from Connecticut thought “it was better to let the Southern States import slaves than to part with them, if they made that a sine qua non.” He observed that the abolition of slavery seemed to be going on in the United States, and that the good sense of the several States would probably by degrees complete it. Mr. Ellsworth, also a member of the Committee of Detail, articulated the political position: the morality or wisdom of slavery are considerations belonging to the States themselves. Moreover, “slavery in time, will not be a speck in our country.” Massachusetts also sought accommodation. King said the whole “subject should be considered in a political light only.”

What is to be Done?

Mr. G. Morris “wished the whole subject to be committed, including the clauses relating to taxes on exports and to a navigation act. These things may form a bargain among the Northern and Southern States.”

The delegates appointed to a Committee of Eleven were Langdon, King, Johnson, Livingston, Clymer, Dickinson, L. Martin, Madison, Williamson, C.C. Pinckney, and Baldwin.

What sort of “bargain” would this Committee recommend? Langdon, King, Dickinson, Martin, and Madison opposed the Slave Clause provision on principle. Williamson, Pinckney, and Baldwin supported the Clause on the ground of interest. Perhaps Livingston, Johnson, and Clymer could help create an accommodation.

Governor Livingston from the Committee delivered the Report:

“Strike out so much of the fourth Section as was referred to the Committee, and insert, ‘The migration or importation of such persons as the several States, now existing, shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1800; but a tax or duty may be imposed on such migration or importation, at a rate not exceeding the average of the duties laid on imports.’ The fifth section to remain as in the Report. The sixth Section to be stricken out. . . . ”

Conclusion

The Committee permitted Congress to regulate the slave trade after 1800 and impose a tax on such importation. Moreover, the Clause was confined to “the several states, now existing” that considered it “proper.” Congress was free to regulate the slave trade in the territories and impose restrictions on new states that entered the Union.

General Pinckney moved to strike out the words, “the year eighteen hundred,” and to insert the words “the year eighteen hundred and eight.” It passed 7-4.

The delegates had moved a long way from never permitting Congress to regulate the slave trade to permitting Congress to regulate the trade after 1808. Madison considered 1800—the birth of a new century—to be the more principled compromise.  New Jersey, Pennsylvania, Delaware, and Virginia voted “no.” They wanted 1800 instead of 1808. 

Thus Article 1, Section 9 of the Constitution: “The migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the legislature prior to the year 1808.”