vice for a term of years, and in excluding Indians not taxed. The real (and it was a very exciting) controversy was in regard to slaves, whether they should be included in the enumeration or not. On the one hand it was contended that slaves were treated in the States which tolerated slavery as property and not as persons. They were bought and sold, devised and transferred, like any other property. They had no civil rights, or political privileges. They had no will of their own, but were bound to absolute obedience to their masters. There was then no more reason for including them in the census of persons than there would be for including any brute animals whatsoever. If they were to be represented as property, the rule should be extended so as to embrace all other property. It would be a gross inequality to allow representation for slaves to the Southern States, for that in effect would be to allow to their masters a predominant right founded on mere property. Thus, five thousand free persons in a slave State might possess the same power to choose a representative as thirty thousand free persons in a non-slaveholding State. 4

§ 637. On the other hand it was contended that slaves are deemed persons as well as property. They partake of the qualities of both. In being compelled to labor, not for himself, but for his master, in being vendible by one master to another, and in being subject at all times to be restrained in his liberty and chastised in his body by the will of another, the slave may appear to be degraded from the human rank and classed with the irrational animals which fall under the denomination of property. But in being protected in his life and limbs against the violence of others, even of the master of his labor and liberty, and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by law as a member of the society, and not as a part of the irrational creation, as a moral person, and not as a mere article of property. The federal Constitution should, therefore, view them in the mixed character

1 2 Pitk. Hist. 233 to 245.

2 The Federalist, No. 54; 1 Elliot's Debates, 58 to 60; Id. 204, 212, 213; 4 Elliot's Debates (Martin's Address), 24.

8 4 Elliot's Debates (Yates's Minutes), 69; Id. 24.

44 Elliot's Debates (Martin's Address), 24; Id. (Yates's Minutes), 69.

The Federalist, No. 54; 1 Elliot's Debates, 212, 213.

of persons and property, which was in fact their true character. It is true that slaves are not included in the estimate of representatives in any of the States possessing them. They neither vote themselves nor increase the vote of their masters. But it is also true that the Constitution itself does not proceed upon any ratio of merely qualified voters, either as to representatives or as to electors of them. If, therefore, those who are not voters are to be excluded from the enumeration or census, a similar inequality will exist in the apportionment among the States. For the representatives are to be chosen by those who are qualified voters for the most numerous branch of the State legislature, and the qualifications in different States are essentially different, and, indeed, are in no two States exactly aliko. The Constitution itself, therefore, lays down a principle which requires that no regard shall be had to the policy of particular States towards their own inhabitants. Why should not the same principle apply to slaves as to other persons who were excluded as voters in the States ? 1

§ 638. Some part of this reasoning may not be very satisfactory, and especially the latter part of it. The distinction between a free person, who is not a voter, but who is in no sense property, and a slave, who is not a voter, and who is in every practical sense property, is, and forever must form, a sound ground for discriminating between them in every constitution of government.

§ 639. It was added, that the idea was not entirely a just one that representation relates to persons only, and not to property. Government is instituted no less for the protection of the property than of the persons of individuals. The one as well as the other may, therefore, be considered as proper to be represented by those who are charged with the government. And, in point of fact, this view of the subject constituted the basis of some of the representative departments in several of the State governments. 2

§ 640. There was another reason urged, why the votes allowed in the federal legislature to the people of each State ought to bear some proportion to the comparative wealth of the States.

1 The Federalist, No. 54; 1 Tuck. Black. Comm. App. 190, 191; 1 Elliot's Debates, 218, 214.

The Federalist, No. 54; 1 Elliot's Debates, 213.

It was, that States have not an influence over other States, arising from the superior advantages of fortune, as individuals in the same State possess over their needy fellow-citizens from the like cause. The richest State in the Union can hardly indulge the hope of influencing the choice of a single representative in any other State; nor will the representatives of the largest and richest States possess any other advantages in the national legislature, than what results from superior numbers alone.1

§ 641. It is obvious that these latter reasons have no just application to the subject. They are not only overstrained and founded in an ingenious attempt to gloss over the real objections, but they have this inherent vice, that, if well founded, they apply with equal force to the representation of all property in all the States; and if not entitled to respect on this account, they contain a most gross and indefensible inequality in favor of a single species of property (slaves) existing in a few States only. It might have been contended, with full as much propriety, that rice, or cotton, or tobacco, or potatoes should have been exclusively taken into account in apportioning the repre

sentation.

§ 642. The truth is, that the arrangement adopted by the Constitution was a matter of compromise and concession, confessedly unequal in its operation, but a necessary sacrifice to that spirit of conciliation which was indispensable to the union of States having a great diversity of interests and physical condition and political institutions. It was agreed that slaves should be represented under the mild appellation of "other persons," not as free persons, but only in the proportion of three-fifths. The clause was in substance borrowed from the resolve, passed by the continental Congress on the 18th of April, 1783, recommending the States to amend the Articles of Confederation in such manner that the national expenses should be defrayed out of a common treasury, "which shall be supplied by the several States, in proportion to the whole number of white or other free inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three-fifths of all other persons, not comprehended in the foregoing description, except

1 The Federalist, No. 54.

21 Elliot's Debates, 212, 213; 2 Pitk. Hist. 233 to 244; Id. 245, 246, 247, 248; 1 Kent's Comm. 216, 217; The Federalist, Nos. 37, 54; 3 Dall. 171, 177, 178.

Indians, not paying taxes, in each State."1 (a) In order to reconcile the non-slaveholding States to this provision, another clause was inserted, that direct taxes should be apportioned in the same manner as representatives. So that, theoretically, representation and taxation might go pari passu. This provision, however, is more specious than solid; for, while in the levy of direct taxes, it apportions them on three-fifths of persons not free, it, on the other hand, really exempts the other two-fifths from being taxed at all as property. Whereas, if direct taxes had been apportioned, as upon principle they ought to be, according to the real value of property within the State, the whole of the slaves would have been taxable as property. But a far more striking inequality has been disclosed by the practical operations of the government. The principle of representation is constant and uniform; the levy of direct taxes is occasional and rare. In the course of forty years, no more than three direct taxes have been levied; and those only under very extraordinary and pressing circumstances. The ordinary expenditures of the government are, and always have been, derived from other sources. posts upon foreign importations have supplied, and will generally supply, all the common wants; and if these should not furnish an adequate revenue, excises are next resorted to, as the surest and most convenient mode of taxation. Direct taxes constitute the last resort, and (as might have been foreseen) would never be laid until other resources had failed.

Im

§ 643. Viewed in its proper light as a real compromise, in a case of conflicting interests, for the common good, the provision is entitled to great praise for its moderation, its aim at practical utility, and its tendency to satisfy the people that the Union, framed by all, ought to be dear to all, by the privileges it confers as well as the blessings it secures. It had a material influence in reconciling the Southern States to other provisions in the Constitution, and especially to the power of making commercial

1 Journals of Congress, 1783, Vol. 8, p. 188; 1 Elliot's Debates, 56.

2 The Federalist, No. 54; Journal of Convention, 12th July, 171, 172; Id. 174, 175, 176, 179, 180, 210; Id. 235; Id. 872; 1 Elliot's Debates, 56, 57, 58, 60; Id. 213. 81 Tucker's Black. Comm. 190, 191; 1 Elliot's Debates, 58, 59.

4 In 1798, 1813, 1815. The last was partially repealed in 1816.

(a) This provision is somewhat modified by the fourteenth amendment, which will be considered hereafter.

regulations by a mere majority, which was thought peculiarly to favor the Northern States. It had sometimes been complained of as a grievance; but he who wishes well to his country will adhere steadily to it as a fundamental policy which extinguishes some of the most mischievous sources of all political divisions, - those founded on geographical positions and domestic institutions. It did not, however, pass the convention without objection. Upon its first introduction, it was supported by the votes of nine States against two. In subsequent stages of the discussion it met with some opposition; and in some of the State conventions it was strenuously resisted. The wish of every

patriot ought now to be, requiescat in pace.

§ 644. Another part of the clause regards the periods at which the enumeration or census of the inhabitants of the United States shall be taken, in order to provide for new apportionments of representatives, according to the relative increase of the population of the States. Various propositions for this purpose were laid, at different times, before the convention. It was proposed to have the census taken once in fifteen years, and in twenty years; but the vote finally prevailed in favor of ten. The importance of this provision for a decennial census can scarcely be overvalued. It is the only effectual means by which the relative power of the several States could be justly represented. If the system first established had been unalterable, very gross inequalities would soon have taken place among the States, from the very unequal increase of their population. The representation would soon have exhibited a system very analogous to that of the House of Commons in Great Britain, where old and decayed boroughs send representatives, not only wholly disproportionate to their importance, but in some cases, with scarcely a single inhabitant, they match the representatives of the most populous counties.6

§ 645. In regard to the United States, the slightest examination of the apportionment made under the first three censuses

11 Elliot's Debates, 212, 213.

2 Journal of Convention, 11th June, 111, 112. See also Id. 11th July, 168, 169, 170, 235, 236; 4 Elliot's Debates (Yates's Minutes), 69.

8 1 Elliot's Debates, 58, 59, 60, 204, 212, 213, 241.

4 Journal of Convention, 163, 164, 167, 168, 169, 172, 174, 180.

6 Journal of Convention, 12th July, 168, 170, 173, 180.

61 Black. Comm. 158, 173, 174; Rawle on Constit. ch. 4, p. 44.