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Yes. States, where the institution of Slavery was legal to practice, had a legal right to defend the institution if it had a slave code to govern the practice. Under the Compact of 1789, slaves had a dual nature, one of persons and another as property. Slavery was tied to State representation in the US House of Representatives through Article 1, Section 2, Clause 3 of the compact entitled “The Constitution of the United States”. Remove slavery and States lose representation and therefore the power to affect legislation in Congress. Slaves were property under the law. Slave codes were passed by the States to govern the relationship between master and slave. Citizens, of the States where slavery was legal to practice and owned slaves, defended it politically through their locally elected State officials and by other means. Politicians defended the institution on the floors of State legislatives and in Congress through debating, issuing resolutions and fist fights.
SLAVE CODES LEGALIZED THE INSTITUTION OF SLAVERY
Legislatures, the governing bodies of a Colony or State, determined the legality of the institution of the practice of slavery. Those States whose legislatures legalized the practice created slave codes to govern the relationship slaves had between its citizens and the parties involved, master and slave. The practice of using slave codes was used established when the States were Colonies of the British Empire. In 1691, the Province of South Carolina copied the Jamaican codes of 1684. The South Carolina slave code served as the blueprint for the other English colonies in North America. The codes followed the States through the Articles of Confederation to the Constitution. As time progressed, politics changed. Under the Constitution of the United States, some of those same States, where slavery was legal, abolished the practice of the institution. New York abolished slavery in 1827 and Maryland in 1864. Prior to the War of 1861, the States had the ability to establish, administer and abolish slavery. The result of War ended the institution with the ratification of the 13th Amendment; Meaning all States in the compact, even those coerced back, agreed to make the slavery illegal to practice. The question, over the legality of slavery, for some States was made for them by the very agent which they had created. Also, the compact entitled, the “United States Constitution” mentions nothing about the States having delegated or given the “general government”, its agent, the power to take away from the States to make the determination for itself which joined or created the compact. Any powers not expressly delegated or given to the ‘general government’ are held by the States per the 10th Amendment.
THE GEORGIA LEGISLATURE DEFENDS SLAVERY IN 1850
The Legislature of Georgia has adopted an extensive report from its committee on the state of the Republic, and adjourned from one month, to see what Congress intends to do with the Wilmot Proviso. Appended to this report is a preamble and resolution declaring the rights of the South with regards to slave property, under the Constitution, and Concluding the following:
Resolved, That in the event of the passage of the Wilmot Proviso by Congress, the abolition of slavery in the District of Columbia, the admission of California as a State, in its present pretended organization, or the continued refusal of the Non-slaveholding States to deliver up fugitive slaves as provided in the Constitution, it will become the immediate and imperative duty of the people of this State to meet in Convention to take into consideration the mode and measure of redress.
Resolved, That the people of Georgia entertain an ardent feeling of devotion to the Union of these States, and that nothing short of a persistence in the present system of encroachment upon our rights by the non-slaving States can induce us to contemplate the possibility of a dissolution.SOURCE: RICHMOND ENQUIRER, RICHMOND, VIRGINIA – JANUARY 1, 1850
A TAX COLLECTION PROBLEM
In May 1787, with no power to collect taxes in order to pay the domestic or international debt accrued by Congress, delegates from the States met in Philadelphia to revise the Articles of Confederation to fix the problem. 1 Instead of revising the Articles with amendments, the delegates decided to create a new government in a compact called “The Constitution of the United States”. The structure of the new government would be federalist in nature called the general government, consisting of three branches: the executive, the President: the judicial, the Supreme Court, and the legislature, Congress.
A debate occurred over the definition of State representation in Congress. What would it look like? States with large populations (Virginia, Massachusetts, and Pennsylvania) wanted representation to be based on population. States with small populations (New Jersey, Delaware, and Connecticut) wanted each State to have the same number of representatives, like under the Articles of Confederation. For months, the argument went on, and then a compromise was reached. Congress would consist of an upper house, the Senate, and a lower house, the House of Representatives. To satisfy the advocates of State sovereignty, each State received equal representation in the Senate with two seats. The House would represent the voice of the people of the States. 2 State Representation of the House would be based on that State’s population; For every 30,000 people of a State’s population, the State received one House delegate. An ‘enumeration’ of the population or Census would be conducted every 10 years to adjust the number of House members regularly. When a direct tax was levied by the general government, the amount each State would pay in taxes would be based on its population and not land value as with the Articles of Confederation. 3 The office of the President would be chosen by a group of electors called the Electoral College. Each State legislature would appoint Presidential Electors, to the College, equal to the total number of Senators and Representatives they had in Congress based on its population as well. 4
The elephant in the room was then addressed by the delegates: Should slaves be counted for the purpose of calculating a state’s representation in the federal House of Representatives, Presidential electors and State apportioned taxes owed to Congress? The debate was ultimately over legislative power. Who would control it in the House? The more representatives a State has, the more power it commands to either further or derail legislation in Congress and choose the general government’s chief executive. Delegates from the smaller populated States did not think slaves should be counted at all, while the larger populated States thought they should. Understand, all the States had slaves, but some just had had more than others. The convention compromised. Slaves would be represented in the House at a ratio of 3 to 5 of their actual numbers in what would become known as the Three-Fifths Compromise. Thus, every five slaves would count as three freemen for the purposes of both legislative representations. However, this same ratio was to be used to determine the federal tax contribution required of each state. 5
In Federalist No.54, James Madison acknowledged the slave’s dual nature as property and as a person:
“We deny the fact that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both qualities; being considered by our laws, in some respects, as persons, and in other respects as property. The Federal Constitution decides, therefore, with great propriety on the case of our slaves, when it views them in this mixed character of persons and of property. This is, in fact, their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criterion.”
And so Article 1, Section 2, Clause 3 in the compact was created.
- US Department of State, Office of the Historian, Foreign Service Institute, U.S. Debt, and Foreign Loans, 1775–1795 and How Failed Tax Policy Led to the Constitutional Convention
- The Formation of the Constitution
- State Representation in the US House of Representatives – Article 1, Section 2, Clause 3
- The Presidential Electors – Article 2, Section 1, Clause 2
- The Three-Fifths Compromise – Article 1, Section 2, Clause 3
- Federalist No. 54
THE FACT CHECKER’S CONCLUSION
Slavery was legal until it wasn’t. Beyond the moral argument against the institution, States, where the institution was legal to practice, had the legal right to defend the institution for itself legislatively and on behalf of citizens who owned them.
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