THE next view which I shall take of the House of Representatives
relates to the appointment of its members to the several States,
which is to be determined by the same rule with that of direct
taxes.
It is not contended that the number of people in each State ought
not to be the standard for regulating the proportion of those who
are to represent the people of each State. The establishment of the
same rule for the appointment of taxes will probably be as little
contested; though the rule itself, in this case, is by no means
founded on the same principle. In the former case, the rule is
understood to refer to the personal rights of the people, with which
it has a natural and universal connection. In the latter, it has
reference to the proportion of wealth, of which it is in no case a
precise measure, and in ordinary cases a very unfit one. But
notwithstanding the imperfection of the rule as applied to the
relative wealth and contributions of the States, it is evidently the
least objectionable among the practicable rules, and had too
recently obtained the general sanction of America, not to have found
a ready preference with the convention.
All this is admitted, it will perhaps be said; but does it follow,
from an admission of numbers for the measure of representation, or
of slaves combined with free citizens as a ration of taxation, that
slaves ought to be included in the numerical rule of representation?
Slaves are considered as property, not as persons. They ought
therefore to be comprehended in estimates of taxation which are
founded on property, and to be excluded from representation which is
regulated by a census of persons. This is the objection, as I
understand it, stated in its full force. I shall be equally candid
in stating the reasoning which may be offered on the opposite side.
"We subscribe to the doctrine," might one of our Southern brethren
observe, "that representation relates more immediately to persons,
and taxation more immediately to property, and we join in the
application of this distinction to the case of our slaves. But we
must 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 these qualities: being considered by
our laws, in some respects, as persons, and in other respects as
property. In being compelled to labor, not for himself, but for a
master; in being vendible by one master to another master; and in
being subject at all times to be restrained in his liberty and
chastised in his body, by the capricious will of another,--the slave
may appear to be degraded from the human rank, and classed with
those irrational animals which fall under the legal denomination of
property.
In being protected, on the other hand, in his life and in his limbs,
against the violence of all others, even the master of his labor and
his liberty; and in being punishable himself for all violence
committed against others,--the slave is no less evidently regarded
by the law as a member of the society, not as a part of the
irrational creation; as a moral person, not as a mere article of
property. The federal Constitution, therefore, decides with great
propriety on the case of our slaves, when it views them in the 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; because it is only under the pretext that the laws have
transformed the negroes into subjects of property, that a place is
disputed them in the computation of numbers; and it is admitted,
that if the laws were to restore the rights which have been taken
away, the negroes could no longer be refused an equal share of
representation with the other inhabitants.
"This question may be placed in another light. It is agreed on all
sides, that numbers are the best scale of wealth and taxation, as
they are the only proper scale of representation. Would the
convention have been impartial or consistent, if they had rejected
the slaves from the list of inhabitants, when the shares of
representation were to be calculated, and inserted them on the lists
when the tariff of contributions was to be adjusted? Could it be
reasonably expected, that the Southern States would concur in a
system, which considered their slaves in some degree as men, when
burdens were to be imposed, but refused to consider them in the same
light, when advantages were to be conferred? Might not some surprise
also be expressed, that those who reproach the Southern States with
the barbarous policy of considering as property a part of their
human brethren, should themselves contend, that the government to
which all the States are to be parties, ought to consider this
unfortunate race more completely in the unnatural light of property,
than the very laws of which they complain?
"It may be replied, perhaps, that slaves are not included in the
estimate of representatives in any of the States possessing them.
They neither vote themselves nor increase the votes of their
masters. Upon what principle, then, ought they to be taken into the
federal estimate of representation? In rejecting them altogether,
the Constitution would, in this respect, have followed the very laws
which have been appealed to as the proper guide.
"This objection is repelled by a single observation. It is a
fundamental principle of the proposed Constitution, that as the
aggregate number of representatives allotted to the several States
is to be determined by a federal rule, founded on the aggregate
number of inhabitants, so the right of choosing this allotted number
in each State is to be exercised by such part of the inhabitants as
the State itself may designate. The qualifications on which the
right of suffrage depend are not, perhaps, the same in any two
States. In some of the States the difference is very material. In
every State, a certain proportion of inhabitants are deprived of
this right by the constitution of the State, who will be included in
the census by which the federal Constitution apportions the
representatives. In this point of view the Southern States might
retort the complaint, by insisting that the principle laid down by
the convention required that no regard should be had to the policy
of particular States towards their own inhabitants; and consequently
that the slaves, as inhabitants, should have been admitted into the
census according to their full number, in like manner with other
inhabitants, who, by the policy of other States, are not admitted to
all the rights of citizens. A rigorous adherence, however, to this
principle, is waived by those who would be gainers by it. All that
they ask is that equal moderation be shown on the other side. Let
the case of the slaves be considered, as it is in truth, a peculiar
one. Let the compromising expedient of the Constitution be mutually
adopted, which regards them as inhabitants, but as debased by
servitude below the equal level of free inhabitants; which regards
the slave as divested of two fifths of the man.
"After all, may not another ground be taken on which this article of
the Constitution will admit of a still more ready defence? We have
hitherto proceeded on the idea that representation related to
persons only, and not at all to property. But is it a just idea?
Government is instituted no less for protection of the property,
than of the persons, of individuals. The one as well as the other
therefore, may be considered as represented by those who are charged
with the government. Upon this principle it is, that in several of
the States, and particularly in the State of New York, one branch of
the government is intended more especially to be the guardian of
property, and is accordingly elected by that part of the society
which is most interested in this object of government. In the
federal Constitution, this policy does not prevail. The rights of
property are committed into the same hands with the personal rights.
Some attention ought, therefore, to be paid to property in the
choice of those hands.
"For another reason, 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. States have not, like individuals,
an influence over each other, arising from superior advantages of
fortune. If the law allows an opulent citizen but a single vote in
the choice of his representative, the respect and consequence which
he derives from his fortunate situation very frequently guide the
votes of others to the objects of his choice; and through this
imperceptible channel the rights of property are conveyed into the
public representation. A State possesses no such influence over
other States. It is not probable that the richest State in the
Confederacy will ever influence the choice of a single
representative in any other State. Nor will the representatives of
the larger and richer States possess any other advantage in the
federal legislature, over the representatives of other States, than
what may result from their superior number alone. As far, therefore,
as their superior wealth and weight may justly entitle them to any
advantage, it ought to be secured to them by a superior share of
representation. The new Constitution is, in this respect, materially
different from the existing Confederation, as well as from that of
the United Netherlands, and other similar confederacies. In each of
the latter, the efficacy of the federal resolutions depends on the
subsequent and voluntary resolutions of the states composing the
union. Hence the states, though possessing an equal vote in the
public councils, have an unequal influence, corresponding with the
unequal importance of these subsequent and voluntary resolutions.
Under the proposed Constitution, the federal acts will take effect
without the necessary intervention of the individual States. They
will depend merely on the majority of votes in the federal
legislature, and consequently each vote, whether proceeding from a
large or smaller State, or a State more or less wealthy or powerful,
will have an equal weight and efficacy: in the same manner as the
votes individually given in a State legislature, by the
representatives of unequal counties or other districts, have each a
precise equality of value and effect; or if there be any difference
in the case, it proceeds from the difference in the personal
character of the individual representative, rather than from any
regard to the extent of the district from which he comes."
Such is the reasoning which an advocate for the Southern interests
might employ on this subject; and although it may appear to be a
little strained in some points, yet, on the whole, I must confess
that it fully reconciles me to the scale of representation which the
convention have established.
In one respect, the establishment of a common measure for
representation and taxation will have a very salutary effect. As the
accuracy of the census to be obtained by the Congress will
necessarily depend, in a considerable degree, on the disposition, if
not on the cooperation, of the States, it is of great importance
that the States should feel as little bias as possible, to swell or
to reduce the amount of their numbers. Were their share of
representation alone to be governed by this rule, they would have an
interest in exaggerating their inhabitants. Were the rule to decide
their share of taxation alone, a contrary temptation would prevail.
By extending the rule to both objects, the States will have opposite
interests, which will control and balance each other, and produce
the requisite impartiality.
Signed "PUBLIUS"
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