Article 1, Section 2, Clause 3
Debate in Massachusetts Ratifying Convention17--19 Jan. 1788Elliot 2:36--45
Mr. King rose to explain it. There has, says he, been much misconception of this section. It is a principle of this Constitution, that representation and taxation should go hand in hand. This paragraph states that the number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. These persons are the slaves. By this rule are representation and taxation to be apportioned. And it was adopted, because it was the language of all America. According to the Confederation, ratified in 1781, the sums for the general welfare and defence should be apportioned according to the surveyed lands, and improvements thereon, in the several states; but that it hath never been in the power of Congress to follow that rule, the returns from the several states being so very imperfect.
Dr. Taylor thought that the number of members to be chosen for the House of Representatives was too small. The whole Union was entitled to send but 65; whereas, by the old Confederation, they send 91--a reduction of 30 per cent. He had heard it objected, that, if a larger number was sent, the house would be unwieldy. He thought our House of Representatives, which sometimes consists of 150, was not unwieldy; and if the number of the federal representatives was enlarged to twice 65, he thought it would not be too large. He then proceeded to answer another objection, "that an increase of numbers would be an increase of expense," and by calculation demonstrated that the salaries of the full number he wished, would, in a year, amount only to £2,980, about one penny on a poll; and by this increase, he thought every part of the commonwealth would be represented. The distresses of the people would thereby be more fully known and relieved.
Mr. Widgery asked, if a boy of six years of age was to be considered as a free person.
Mr. King, in answer, said, all persons born free were to be considered as freemen; and, to make the idea of taxation by numbers more intelligible, said that five negro children of South Carolina are to pay as much tax as the three governors of New Hampshire, Massachusetts, and Connecticut.
Mr. Gorham thought the proposed section much in favor of Massachusetts; and if it operated against any state, it was Pennsylvania, because they have more white persons bound than any other. Mr. G. corrected an observation of Dr. Taylor's that the states now send 91 delegates to Congress; which was not the case. The states do not, he said, send near the number, and instanced Massachusetts, which sends but four. He concluded by saying that the Constitution provides for an increase of members as numbers increase, and that in fifty years there will be 360; in one hundred years, 14 or 1500, if the Constitution last so long.
Judge Dana, remarking on the assertions of Dr. Taylor, that the number of representatives was too small; that the whole Union was now entitled to send but 65, whereas by the Confederation they might send 91,--a reduction of 30 per cent.,--said, if the Constitution under consideration was in fact what its opposers had often called it, a consolidation of the states, he should readily agree with that gentleman that the representation of the people was much too small; but this was a charge brought against it without any foundation in truth. So far from it, that it must be apparent to every one, that the federal government springs out of, and can alone be brought into existence by, the state governments. Demolish the latter, and there is an end of the former. Had the Continental Convention, then, doubled the representation, agreeably to that gentleman's ideas, would not the people of this Commonwealth have been the first to complain of it as an unnecessary burden laid upon them--that, in addition to their own domestic government, they have been charged with the support of so numerous a national government? Would they not have contended for the demolition of the one or the other, as being unable to support both? Would they have been satisfied by being told that doubling the representation would yearly amount only "to about one penny upon a poll"? Does not the gentleman know that the expense of our own numerous representation has excited much ill-will against the government? Has he never heard it said among the people that our public affairs would be as well conducted by half the number of representatives? If he has not, I have, sir, and believe it to be true. But the gentleman says that there is a reduction of 30 per cent. in the federal representation, as the whole Union can send but 65, when under the Confederation they may send 91. The gentleman has not made a fair calculation. For, if to the 65 representatives under the proposed Constitution we add 2 senators from each state, amounting to 26 in all, we shall have the same number, 91; so that in this respect there is no difference. Besides, this representation will increase with the population of the states, and soon become sufficiently large to meet that gentleman's ideas. I would just observe, that by the Confederation this state has a right to send seven members to Congress; yet, although the legislature hath sometimes chosen the whole number, I believe at no time have they had, or wished to have, more than four of them actually in Congress. Have any ill consequences arisen from this small representation in the national council? Have our liberties been endangered by it? No one will say they have. The honorable gentleman drew a parallel between the Eastern and Southern States, and showed the injustice done the former by the present mode of apportioning taxes, according to surveyed land and improvements, and the consequent advantage therefrom to the latter, their property not lying in improvements, in buildings, &c.
In reply to the remark of some gentlemen, that the Southern States were favored in this mode of apportionment, by having five of their negroes set against three persons in the Eastern, the honorable judge observed, that the negroes of the Southern States work no longer than when the eye of the driver is on them. Can, asked he, that land flourish like this, which is cultivated by the hands of freemen? and are not three of these independent freemen of more real advantage to a state than five of those poor slaves? As a friend to equal taxation, he rejoiced that an opportunity was presented, in this Constitution, to change this unjust mode of apportionment. Indeed, concluded he, from a survey of every part of the Constitution, I think it the best that the wisdom of men could suggest.
Mr. Nasson remarked on the statement of the Hon. Mr. King, by saying that the honorable gentleman should have gone further, and shown us the other side of the question. It is a good rule that works both ways; and the gentleman should also have told us, that three of our infants in the cradle are to be rated as five of the working negroes of Virginia. Mr. N. adverted to a statement of Mr. King, who had said that five negro children of South Carolina were equally ratable as three governors of New England, and wished, he said, the honorable gentleman had considered this question upon the other side, as it would then appear that this state will pay as great a tax for three children in the cradle, as any of the Southern States will for five hearty, working negro men. He hoped, he said, while we were making a new government, we should make it better than the old one; for, if we had made a bad bargain before, as had been hinted, it was a reason why we should make a better one now.
Mr. Randall begged leave to answer a remark of the Hon. Mr. Dana, which, he thought, reflected on the barrenness of the Southern States. He spoke from his own personal knowledge, he said, and he could say, that the land in general, in those states, was preferable to any he ever saw.
Judge Dana rose to set the gentleman right; he said it was not the quality of the land he alluded to, but the manner of tilling it that he alluded to.
Friday, January 18.--The third paragraph of the 2d section of article one still under consideration.
Hon. Mr. Dalton opened the conversation with some remarks on Mr. Randall's positive assertions of the fertility of the Southern States; who said, from his own observation, and from accounts he had seen, which were better, he could say, that the gentleman's remark was not perfectly accurate. The honorable gentleman showed why it was not so, by stating the inconsiderable product of the land, which, though it might in part be owing to the faithlessness and ignorance of the slaves who cultivate it, he said, was in a greater measure owing to the want of heart in the soil.
Mr. Randall. Mr. President, I rise to make an observation on the suggestion of the honorable gentleman from Newbury. I have, sir, travelled into the Southern States, and should be glad to compare our knowledge on the subject together. In Carolina, Mr. President, if they don't get more than twenty or thirty bushels of corn from an acre, they think it a small crop. On the low lands they sometimes get forty. I hope, sir, these great men of eloquence and learning will not try to make arguments to make this Constitution go down, right or wrong. An old saying, sir, is, that "a good thing don't need praising;" but, sir, it takes the best men in the state to gloss this Constitution, which they say is the best that human wisdom can invent. In praise of it we hear the reverend clergy, the judges of the Supreme Court, and the ablest lawyers, exerting their utmost abilities. Now, sir, suppose all this artillery turned the other way, and these great men would speak half as much against it, we might complete our business and go home in forty-eight hours. Let us consider, sir, we are acting for the people, and for ages unborn; let us deal fairly and above board. Every one comes here to discharge his duty to his constituents, and I hope none will be biased by the best orators; because we are not acting for ourselves. I think Congress ought to have power, such as is for the good of the nation; but what it is, let a more able man than I tell us.
Mr. Dawes said, he was very sorry to hear so many objections raised against the paragraph under consideration. He thought them wholly unfounded; that the black inhabitants of the Southern States must be considered either as slaves, and as so much property, or in the character of so many freemen; if the former, why should they not be wholly represented? Our own state laws and constitution would lead us to consider these blacks as freemen, and so indeed would our own ideas of natural justice. If, then, they are freemen, they might form an equal basis for representation as though they were all white inhabitants. In either view, therefore, he could not see that the Northern States would suffer, but directly to the contrary. He thought, however, that gentlemen would do well to connect the passage in dispute with another article in the Constitution, that permits Congress, in the year 1808, wholly to prohibit the importation of slaves, and in the mean time to impose a duty of ten dollars a head on such blacks as should be imported before that period. Besides, by the new Constitution, every particular state is left to its own option totally to prohibit the introduction of slaves into its own territories. What could the Convention do more? The members of the Southern States, like ourselves, have their prejudices. It would not do to abolish slavery, by an act of Congress, in a moment, and so destroy what our southern brethren consider as property. But we may say, that, although slavery is not smitten by an apoplexy, yet it has received a mortal wound, and will die of a consumption.
Mr. D. said, the paragraph in debate related only to the rule of apportioning internal taxes; but the gentleman had gone into a consideration of the question, whether Congress should have the power of laying and collecting such taxes; which, he thought, would be more properly discussed under the section relative to the powers of Congress; but as objections had been suggested, the answers might be hinted as we went along. By the old articles, said he, Congress have a right to ascertain what are necessary for the Union, and to appropriate the same, but have no authority to draw such moneys from the states. The states are under an honorary obligation to raise the moneys; but Congress cannot compel a compliance with the obligation. So long as we withhold that authority from Congress, so long we may be said to give it to other nations. Let us contemplate the loan we have made with the Dutch. Our ambassador has bound us all, jointly and severally, to pay the money borrowed. When pay-day shall come, how is the money to be raised? Congress cannot collect it. If any one state shall disobey a requisition, the Dutch are left, in such a case, to put their own demand in force for themselves. They must raise by arms what we are afraid Congress shall collect by the law of peace. There is a prejudice, said Mr. Dawes, against direct taxation, which arises from the manner in which it has been abused by the errors of the old Confederation. Congress had it not in their power to draw a revenue from commerce, and therefore multiplied their requisitions on the states. Massachusetts, willing to pay her part, made her own trade law, on which the trade departed to such of our neighbors as made no such impositions on commerce; thus we lost what little revenue we had, and our only course was, to a direct taxation. In addition to this, foreign nations, knowing this inability of Congress, have on that account been backward in their negotiations, and have lent us money at a premium which bore some proportion to the risk they had of getting payment; and this extraordinary expense has fallen at last on the land.
Some gentlemen have said, that Congress may draw their revenue wholly by direct taxes; but they cannot be induced so to do; it is easier for them to have resort to the impost and excise; but as it will not do to overburden the impost, (because that would promote smuggling, and be dangerous to the revenue,) therefore Congress should have the power of applying, in extraordinary cases, to direct taxation. War may take place, in which case it would not be proper to alter those appropriations of impost which may be made for peace establishments. It is inexpedient to divert the public funds; the power of direct taxation would, in such circumstances, be a very necessary power. As to the rule of apportioning such taxes, it must be by the quantity of lands, or else in the manner laid down in the paragraph under debate. But the quantity of lands is an uncertain rule of wealth. Compare the lands of different nations of Europe, some of them have great comparative wealth and less quantities of lands, whilst others have more land and less wealth. Compare Holland with Germany. The rule laid down in the paragraph is the best that can be obtained for the apportionment of the little direct taxes which Congress will want.
Afternoon.--Messrs. King, Gore, Parsons, and Jones, of Boston, spoke of the advantage to the Northern States the rule of apportionment in the third paragraph (still under debate) gave to them; as also the Hon. Judge Dana, the sketch of whose speech is as follows:--
The learned judge began with answering some objections to this paragraph, and urging the necessity of Congress being vested with power to levy direct taxes on the states, and it was not to be supposed that they would levy such, unless the impost and excise should be found insufficient in case of a war. If, says he, a part of the Union is attacked by a foreign enemy, and we are disunited, how is it to defend itself? Can it by its own internal force? In the late war, this state singly was attacked, and obliged to make the first defence. What has happened may happen again. The state oppressed must exert its whole power, and bear the whole charge of the defence; but common danger points out for common exertion; and this Constitution is excellently designed to make the danger equal. Why should one state expend its blood and treasure for the whole? Ought not a controlling authority to exist, to call forth, if necessary, the whole force and wealth of all the states? If disunited, the time may come when we may be attacked by our natural enemies. Nova Scotia and New Brunswick, filled with tories and refugees, stand ready to attack and devour these states, one by one. This will be the case, if we have no power to draw forth the wealth and strength of the whole, for a defence of a part. Then shall we, continued the honorable gentleman, see, but too late, the necessity of a power being vested somewhere, that could command that wealth and strength when wanted. I speak with earnestness, said he, but it is for the good of my native country. By God and nature made equal, it is with remorse I have heard it suggested by some, that those gentlemen who have had the superior advantages of education, were enemies to the rights of their country. Are there any among this honorable body, who are possessed of minds capable of such narrow prejudices? If there are, it is in vain to reason with them; we had better come to a decision, and go home.
After dilating on this matter a short time, the learned judge begged gentlemen to look around them, and see who were the men that composed the assembly. Are they not, he asked, men who have been foremost in the cause of their country, both in the cabinet and in the field? and who, with halters about their necks, boldly and intrepidly advocated the rights of America, and of humanity, at home and in foreign countries? And are they not to be trusted? Direct taxation is a tremendous idea; but may not necessity dictate it to be unavoidable? We all wish to invest Congress with more power. We disagree only in the quantum, and manner, in which Congress shall levy taxes on the states. A capitation tax is abhorrent to the feelings of human nature, and, I venture to trust, will never be adopted by Congress. The learned judge pointed out, on various grounds, the utility of the power to be vested in the Congress, and concluded by observing, that the proposed Constitution was the best that could be framed; that, if adopted, we shall be a great and happy nation; if rejected, a weak and despised one; we shall fall as the nations of ancient times have fallen; that this was his firm belief; and, said he, I would rather be annihilated than give my voice for, or sign my name to, a constitution which in the least should betray the liberties or interests of my country.
Mr. Widgery. I hope, sir, the honorable gentleman will not think hard of it, if we ignorant men cannot see as clear as he can. The strong must bear with the infirmities of the weak; and it must be a weak mind indeed that could throw such illiberal reflections against gentlemen of education, as the honorable gentleman complains of. To return to the paragraph. If Congress, continued Mr W., have this power of taxing directly, it will be in their power to enact a poll tax. Can gentlemen tell why they will not attempt it, and by this method make the poor pay as much as the rich?
Mr. Dench was at a loss to know how Congress could levy the tax, in which he thought the difficulty of money consisted; yet had no doubt but that Congress would direct that these states should pay it in their own way.
The Hon. Mr. Fuller begged to ask Mr. Gerry, "why, in the last requisition of Congress, the portion required of this state was thirteen times as much as of Georgia; and yet we have but eight representatives in the general government, and Georgia has three." Until this question was answered, he was at a loss to know how taxation and representation went hand in hand.
[It was then voted that this question be asked Mr. Gerry. A long and desultory debate ensued on the manner in which the answer should be given: it was at last voted that Mr. G. reduce his answer to writing.]
Saturday, January 19, 1788, A. M.--The Hon. Mr. Singletary thought we were giving up all our privileges, as there was no provision that men in power should have any religion; and though he hoped to see Christians, yet, by the Constitution, a Papist, or an Infidel, was as eligible as they. It had been said that men had not degenerated; he did not think men were better now than when men after God's own heart did wickedly. He thought, in this instance, we were giving great power to we know not whom.
Gen. Brooks, (of Medford.)--If good men are appointed, government will be administered well. But what will prevent bad men from mischief, is the question. If there should be such in the Senate, we ought to be cautious of giving power; but when that power is given, with proper checks, the danger is at an end. When men are answerable, and within the reach of responsibility, they cannot forget that their political existence depends upon their good behavior. The Senate can frame no law but by consent of the Representatives, and is answerable to that house for its conduct. If that conduct excites suspicion, they are to be impeached, punished, (or prevented from holding any office, which is great punishment.) If these checks are not sufficient, it is impossible to devise such as will be so.
[Mr. Gerry's answer to Mr. Fuller's question was read. The purport is, that Georgia had increased in its numbers by emigration; and if it had not then, would soon be entitled to the proportion assigned her.]
Hon. Mr. King. It so happened that I was both of the Convention and Congress at the same time; and if I recollect right, the answer of Mr. G. does not materially vary. In 1778, Congress required the states to make a return of the houses and lands surveyed; but one state only complied therewith--New Hampshire. Massachusetts did not. Congress consulted no rule: it was resolved that the several states should be taxed according to their ability, and if it appeared any state had paid more than her just quota, it should be passed to the credit of that state, with lawful interest.
Mr. Dalton said we had obtained a great deal by the new Constitution. By the Confederation each state had an equal vote. Georgia is now content with three eighths of the voice of Massachusetts.
The Founders' Constitution
Volume 2, Article 1, Section 2, Clause 3, Document 11
The University of Chicago Press
Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.
Easy to print version.