[200] Ante, Vol. I. 220, note, 226, note.

[201] October 6, 1783, Journals, VIII. 423.

[202] October 8. Ibid. 424, 425.

[203] December 10, 11, 1784. Journals, X. 16-18.

[204] December 20, 21. Ibid. 23, 24.

[205] Passed December 23. Ibid. 29.

[206] They removed from it October 2, 1788, on a notice from the Mayor of the city that repairs were to be made.

[207] See ante, Vol. I. pp. 358-361.

[208] See the conversation reported by Madison, Elliot, V. 374.

[209] Elliot, V. 409, 410. See post, as to the power of the President to assemble and adjourn Congress.

[210] Mr. Justice Story has stated in his Commentaries (§ 829), that this clause came into the Constitution in the revised draft, near the close of the Convention, and was silently adopted, without opposition. This is a mistake. The clause was contained in the draft of the committee of detail, and was modified as stated in the text, on the 7th of August, after a full debate. Elliot, V. 377, 383-385.

[211] See Madison, Elliot, V. 302, 357.

[212] See the remarks of Gouverneur Morris in the debate on the apportionment of representatives, in which he stated the dilemma precisely in this way. Elliot, V. 301.

[213] No candid man, said Rufus King, could undertake to justify to them a system under which slaves were to continue to be imported, and to be represented, while the exports produced by their labor were not to pay any part of the expenses of the government which would be obliged to defend their masters against domestic insurrections or foreign attacks. Elliot, V. 391.

[214] See the remarks of Mr. Ellsworth and General Pinckney, as reported by Mr. Madison, Elliot, V. 458, 459.

[215] They were Messrs. Rutledge, Randolph, Gorham, Ellsworth, and Wilson. I have classed Mr. Ellsworth among the representatives of non-slaveholding States; for although there were between two and three thousand slaves in Connecticut at this time, provision had already been made for its prospective and gradual abolition. It was not finally extinct in that State until after the year 1840. The United States census for 1790 returned 2,759 slaves for Connecticut; the census for 1840 returned 17; in the census for 1850 none were returned. A like gradual abolition took place in New Hampshire, Rhode Island, Vermont, New York, and Pennsylvania. In Massachusetts, slavery was abolished by the State Constitution of 1780.

[216] See the remarks of Mr. Madison, Elliot, V. 490.

[217] Madison, Elliot, V. 391, 392.

[218] Ibid. 392, 393.

[219] New Jersey.

[220] The opposition to a power to tax exports was not confined to the members from North and South Carolina and Georgia. Ellsworth and Sherman of Connecticut, Mason of Virginia, and Gerry of Massachusetts considered such a power wrong in principle, and incapable of being exercised with equality and justice.

[221] The vote was taken (August 21) upon so much of the fourth section of the seventh article of the reported draft, as affirmed that "no tax or duty shall be laid by the legislature on articles exported from any State." Massachusetts, Connecticut, Maryland, Virginia (General Washington and Mr. Madison no), North Carolina, South Carolina, Georgia, ay, 7; New Hampshire, New Jersey, Pennsylvania, Delaware, no, 4.—If the subject had been left in this position, exports would have been taxable by the States. The plan of restraining the power of the States over exports was subsequently adopted, after the compromise involving the revenue and commercial powers of the general government had been settled.

[222] Elliot, V. 457-461.

[223] See ante, Vol. I. Book III. Chap. IV., on the origin and necessity of the commercial power.

[224] Elliot, V. 460.

[225] Elliot, V. 470, 471.

[226] Two grave objections were made to this settlement respecting the importation of slaves. Mr. Madison records himself as saying, in answer to the motion of General Pinckney to adopt the year 1808, that twenty years would produce all the mischief that could be apprehended from the slave-trade, and that so long a term would be more dishonorable to the American character, than to say nothing about it in the Constitution. But the real question was, whether the power to prohibit the importation at any time could be acquired for the Constitution; and the facts show that it could have been obtained only by the arrangement proposed and carried. The votes of seven States against four, given for General Pinckney's motion, show the convictions then entertained. The other objection (urged by Roger Sherman and Mr. Madison) was, that to lay a tax upon imported slaves implied an acknowledgment that men could be articles of property. But it appears from the statements of other members, also recorded by Madison, that it was part of the compromise agreed upon in committee, that the slave-trade should be placed under the revenue power, in consideration of its not being placed at once within the commercial power. It also appears that the tax was made to apply to the "importation of such persons as the States might see fit to admit," until the year 1808, in order to include and to discourage the introduction of convicts.

But the principal object was undoubtedly the slave-trade; and this particular phraseology was employed, instead of speaking directly of the importation of slaves into the States of North Carolina, South Carolina, and Georgia, in order, on the one hand, not to give offence to those States, and on the other, to avoid offending those who objected to the use of the word "slaves" in the Constitution. Elliot, V. 477, 478.

[227] That part of the compromise relating to the slave-trade, &c. was adopted in Convention by the votes of New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, ay, 7; New Jersey, Pennsylvania, Delaware, Virginia, no, 4. Maryland, Virginia, North Carolina, and Georgia voted for a proposition made by C. Pinckney, to postpone the report, in order to take up a clause requiring all commercial regulations to be passed by two thirds of each house. But on the rejection of this motion, the report of the compromise committee, recommending that a two-thirds vote for a navigation act be stricken out, was agreed to, nem. con.; as was also the clause relating to a capitation tax.

[228] See the note on the American abolition of the slave-trade, ante, Vol. I. p. 460.

[229] See the remarks of John Rutledge. Madison, Elliot, V. 491.

[230] General Pinckney. Ibid. 489.

[231] The point respecting the slave-trade was insisted upon by the delegates of those three States, both as a matter of State pride and a matter of practical interest. They regarded the increase of their slave population by new importations as a thing of peculiarly domestic concern, the control of which they were unwilling to transfer to the general government. But they also contended for a political right which their States intended to exercise. The following table, taken from the United States Census, shows that in the twenty years which elapsed from 1790 to 1810 during eighteen of which the importation of slaves could not be prohibited by Congress, the slaves of those three States increased in a ratio so much larger than the rate of increase after the year 1808, as to make it apparent that it was not a mere abstraction on which they insisted. The right to admit the importation of slaves was exercised, and was intended to be exercised;—as some of the delegates of the three States declared in the Convention.

Progress of the Slave Population from 1790 to 1850, showing the Increase per Cent in each Period of Ten Years.

But while the census shows that the power to admit slaves was exercised freely during the twenty years that followed the adoption of the Constitution of the United States, it also shows that the States which insisted on retaining it for that period could well afford to surrender it at the stipulated time. In 1810, the proportion of the blacks of North Carolina to the whole population was 32.24 per cent, and in 1850 it was 36.36; in South Carolina the proportion in 1810 was 48.4, and in 1850, 58.93; in Georgia, in 1810 it was 42.4, and in 1850, 42.44. It is not probable, therefore, that the prosperity of those States has been diminished by the discontinuance of the slave-trade; for it is not likely that they could well sustain a much larger ratio of the blacks to the whites than that which now exists, and which will probably continue to be maintained at about the same point for a long period of time.

[A] The constitutional power of Congress to prohibit the importation took effect and was exercised in 1808.

[B] The great diminution in the rates of increase during this period is probably due to the removal of slaves into Alabama, Arkansas, Louisiana, and Texas.

[232] Art. VII. § 1 of the first draft of the Constitution. Elliot, V. 378.

[233] August 18. Elliot, V. 440.

[234] A committee of one member from each State.

[235] Elliot, V. 441. To the same grand committee was afterwards referred the subject of the militia. See infra.

[236] August 21. Elliot, V. 451.

[237] August 22. Ibid. 462.

[238] See the proceedings which took place, August 22, 24, and 25. Elliot, V. 462, 463, 464, 471, 475-477.

[239] Elliot, V. 476, 477. Mr. Madison says, "This proposition, as being unnecessary, was disagreed to"; that is, unnecessary as a security of the old debts of the United States.

[240] Ibid. 506, 507.

[241] Elliot, V. 478, 479.

[242] Constitution, Art. I. §9. See the proceedings which took place on the proposition of the Maryland delegates. Elliot, V. 478, 479, 483, 502, 545.

[243] Elliot, V. 543. Constitution, Art. I. § 8, clause 1.

[244] Elliot, V. 439.

[245] Ibid. 506, 507.

[246] Ibid. 434. Journal, Elliot, I. 245.

[247] See the debate, and Mr. Madison's explanation of his vote, Elliot, V. 434, 435, and the note on the latter page.

[248] Constitution, Art. I. § 8, clause 9.

[249] Ibid., clause 11.

[250] Elliot, V. 436.

[251] That is to say, it is the same crime, committed on the high seas, that is denominated robbery when committed on the land.

[252] Madison, Elliot, V. 436, 437.

[253] In the clause as it passed the Convention, the offence of counterfeiting was placed with the other crimes which Congress was to "define" and "punish"; but, on the revision of the Constitution, counterfeiting was placed in a separate clause, under the term "to provide for the punishment of," &c. See Art. I. § 8, clauses 6, 10.

[254] Elliot, V. 438, 439.

[255] Elliot, V. 440, 510, 511.

[256] Ibid. 442.

[257] Ibid. 443.

[258] Ibid. 440.

[259] Elliot, V. 510, 511. Constitution, Art. 1. § 8, clause 12.

[260] Elliot, V. 443.

[261] Art. VII. § 1 of the first draft. Elliot, V. 379.

[262] Ibid. 440.

[263] Aug 18. Elliot, V. 445.

[264] Constitution, Art. I § 8, cl. 16.

[265] Art. I. § 8, cl. 15. Ibid. p. 467.

[266] Constitution, Art. I. § 8, cl. 18.

[267] Elliot, V. 447.

[268] See the statutes of Massachusetts and Connecticut, &c. cited in Curtis on Copyright, pp. 77, 78, 79.

[269] Ante, Chap. IX.

[270] Elliot, V. 510, 511, 512.

[271] Ante, Vol. I. Book III. ch. 5, p. 291 et seq.

[272] Resolve of October 10, 1780. Journals, VI. 325.

[273] Resolve of April 23, 1784. Journals, IX. 153.

[274] March 16, 1785. Journals, X. 79. See ante, Vol. I. p. 299.

[275] See the note on the authorship of the Ordinance of 1787, in the Appendix to this volume.

[276] Ante, Chap. IV. p. 77, note.

[277] See the proceedings concerning Kentucky, in 1788. Journals, XIII. 16, 32, 51, 52, 55.

[278] The Federalist, No. 38.

[279] The passage quoted from Mr. Jefferson, ante, p. 77, also shows that strong doubts were felt in Congress, in 1784, respecting their power to admit new States formed out of unoccupied territory. Indeed, the whole of the proceedings upon Mr. Jefferson's measure of April 23, 1784, show that the powers of Congress over the territory that had been acquired under the cession of Virginia were very variously regarded by the different delegates. See Journals, IX. 138-156. The State of South Carolina voted against the resolve on its final passage, and after it had been modified to meet some of the objections raised.

[280] I think we are to understand Mr. Madison's assertion in the Federalist,—that what had been done by Congress in relation to the Northwestern Territory was without constitutional authority,—to mean, that it had been done without the authority of any proper constitutional provision. Mr. Madison himself, being a member of Congress in 1783, voted for the acceptance of a report, by the adoption of which Congress settled the conditions on which the cession of Virginia was to be received by the United States. These conditions embraced the whole of the three fundamental points, that the territory should be held and disposed of for the common benefit of the United States, that it should be divided into States, and that those States should be admitted into the Union. So that Mr. Madison was a party to the arrangement by which Congress undertook to hold out these promises to the States. (Journals of Congress for September 13, 1783, VIII. 355-359.) But he was not a member of Congress in 1784, when Mr. Jefferson's measure was adopted; and although he was a member in 1787, when the Ordinance was adopted, he was at that time in attendance upon the national Convention, and consequently never voted upon the Ordinance. His participation in the proceedings of the Convention, by which the necessary power was created, shows his sense of its necessity.

[281] See especially the cession by Virginia, of March 1, 1784. Journals of Congress, IX. 67. Cession by Massachusetts, April 19, 1785. Journals, X. 128. Cession by Connecticut, September 13, 1786. Journals, XI. 221. Also the resolve of Congress passed, in anticipation of these cessions, October 10, 1780. Journals, VI. 325.

[282] Resolution 10. Madison, Elliot, V. 128.

[283] Art. XVII. of the draft prepared by the committee of detail. Elliot, V. 381.

[284] August 18. Elliot, Vol. V. p. 439.

[285] August 29. Elliot, V. 492-497.

[286] Ibid. 492, 493.

[287] Ibid. 493.

[288] See the vote on a proposition moved by Mr. Carroll for a recommitment for the purpose of asserting in the Constitution the right of the United States to the lands ceded by Great Britain in the treaty of peace. New Jersey, Delaware, and Maryland alone voted for the recommitment. Elliot, V. 493, 494.

[289] Elliot, V. 495.

[290] Ibid. 496. New Jersey, Delaware, and Maryland, ay.

[291] When the Constitution was finally revised, the word "hereafter" was left out of the first clause of the third section of article fourth, apparently because the phraseology of the clause was sufficient, without it, to save the case of Vermont, which was regarded as not being within the "jurisdiction," although it was within the asserted limits, of the State of New York.

[292] Elliot, V. 496, 497.

[293] The cession by South Carolina of all its "right, title, interest, jurisdiction, and claim" to the "territory or tract of country" lying, within certain northern and southern limits, between the western boundary of that State and the river Mississippi, was in fact made and accepted in Congress, August 9-10, 1787, twenty days before the territorial clause was finally settled in the Convention, which took place August 30. (Journals of the Old Congress, XII. 129-139. Madison, Elliot, V. 494-497.) On the 20th of October of the same year, the Congress passed a resolution urging the States of North Carolina and Georgia to cede their Western claims. This request was not complied with until after the Constitution had gone into operation. The cession of North Carolina was made February 25, 1790; that of Georgia, April 24, 1802.

[294] It is not my purpose to enter into the argument on this question. I have recently had occasion professionally to maintain that the territorial clause is applicable to all territorial cessions made to the United States, whether by States of the Union or by foreign States, and that it clothes the government with a full legislative power over such territories and their inhabitants, which is subject only to the particular restrictions enumerated in the Constitution. Perhaps it is needless for me to add that I entertain this opinion. But it is rejected by others, and, in the present state of judicial interpretation of this part of the Constitution, by the supreme tribunal, it is not easy to determine what will finally become the settled construction.

[295] Constitution, Art. I. § 9, cl. 2.

[296] See Elliot, V. 484. The three States were North Carolina, South Carolina, and Georgia.

[297] Elliot, V. 462, 463.

[298] Elliot, V. 488.

[299] Ibid. 467. Constitution, Art. I. § 9, cl. 8.

[300] Articles XII., XIII. of the first draft, Elliot, V. 381.

[301] Elliot, V. 484, 485.

[302] Elliot, V. 484, 485.

[303] The Ordinance, which was passed July 13, was published at length in "The Pennsylvania Herald," a newspaper printed at Philadelphia, on the 25th of July (1787). Mr. King's motion was made August 28, and is described by Mr. Madison as a motion "to add, in the words used in the Ordinance of Congress establishing new States, a prohibition on the States to interfere in private contracts." Elliot, V. 485.

[304] See the clause of the Ordinance, cited ante, Vol. I. p. 452, note 2.

[305] Elliot, V. 485, 488, 545, 546.

[306] Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548.

[307] By a vote of six States against four. Elliot, V. 548.

[308] Elliot, V. 548.

[309] These were the 1st, 7th, 20th, and 21st of the resolutions. Ante, p. 190 et seq., note.

[310] "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

[311] The Constitution, Art. VI. (See Appendix.)

[312] July 17. Elliot, V. 322.

[313] The Constitution. Art. VI.

[314] Ibid. Art. III. § 2.

[315] Articles XXI., XXII., XXIII. of their draft. Elliot, V. 381.

[316] The Constitution, Art. VII.

[317] Ante, p. 177, et seq. The resolutions may be found in Elliot, V. 541 (Sept. 13). But the proceedings on them are not found in Mr. Madison's Minutes, or in the Journal of the Convention. The official record of their unanimous adoption was laid before Congress on the 28th of September, 1787, and it bears date September 17th. It recites the presence in Convention of all the states that attended excepting New York, and in the place of that State stands "Mr. Hamilton from New York." This record precedes the official letter addressed by the Convention to Congress. See Journals of Congress for September 28, 1787, Vol. XII. pp. 149-165.

[318] See a speech made by Hamilton in the Convention of New York. Works, II. 462.

[319] 4 Blackstone's Com., Book IV. ch. 6.

[320] Art. VI. § 2 of the first draft of the Constitution. Elliot, V. 379.

[321] Elliot, V. 450.

[322] The effect of these words is as if the statute read "adhering to the enemy by giving him aid and comfort," and not as if they were two separate offences.

[323] See the debate, Elliot, V. 447-451.

[324] Ibid. Art. III. § 3 of the Constitution.