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Subject Area: Political Theory
Subject Area: History
Topic: The American Revolution and Constitution

CCCXXXII.: James Madison to Robert Walsh. 1 - Max Farrand, The Records of the Federal Convention of 1787, vol. 3 [1911]

Edition used:

The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1911). Vol. 3.

Part of: The Records of the Federal Convention of 1787, 3 vols.

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CCCXXXII.

James Madison to Robert Walsh.1

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 importion, 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.* 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,† not one of which amendments refers to the clause in question. . . .

It falls within the scope of your enquiry, 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.

[1 ]Documentary History of the Constitution, V, 303-306.

[* ]The debates of the Pennsylvania convention contain a speech of Mr. Wilson (Dec. 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, & yielding 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.1

[† ]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. 1. 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.

[* ]The debates of the Pennsylvania convention contain a speech of Mr. Wilson (Dec. 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, & yielding 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.1

[1]See CCCXXXIII below.