University of Virginia Library

THE WRITINGS OF
JAMES MADISON.

TO ROBERT WALSH.

Dear Sir,—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 importation, 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 Slates 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. Masstts. & 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 farther 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, while 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.[1]

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.[2] 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[4] not one of which amendments refers
to the clause in question. Neither is there any
indication that Congress have heretofore considered
themselves as deriving from this Clause a power over
the migration or removal of individuals, whether
freemen or slaves, from one State to another, whether
new or old: For it must be kept in view that if
the power was given at all, it has been in force eleven
years over all the States existing in 1808, and at all
times over the States not then existing. Every
indication is against such a construction by Congress
of their constitutional powers. Their alacrity in
exercising their powers relating to slaves, is a proof
that they did not claim what they did not exercise.
They punctually and unanimously put in force the
power accruing in 1808 against the further importation
of slaves from abroad. They had previously
directed their power over American vessels on the
high seas, against the African trade. They lost no
time in applying the prohibitory power to Louisiana,
which having maritime ports, might be an inlet for
slaves from abroad. But they forebore to extend
the prohibition to the introduction of slaves from
other parts of the Union. They had even prohibited
the importation of slaves into the Mississippi
Territory from without the limits of the U. S. in the
year 1798, without extending the prohibition to the
introduction of slaves from within those limits; altho'
at the time the ports of Georgia and S. Carolina
were open for the importation of slaves from abroad,
and increasing the mass of slavery within the U.
States.

If these views of the subject be just, a power in
Congress to controul the interior migration or removals
of persons, must be derived from some other
source than Sect 9, Art. 1; either from the clause
giving power "to make all needful rules and regulations
respecting the Territory or other property
belonging to the U. S. or from that providing for the
admission of New States into the Union."

The terms in which the 1st. of these powers is expressed,
tho' of a ductile character, cannot well be
extended beyond a power over the Territory as
property, & a power to make the provisions really
needful or necessary for the Govt. of settlers until
ripe for admission as States into the Union. It may
be inferred that Congress did not regard the interdict
of slavery among the needful regulations contemplated
by the constitution; since in none of the
Territorial Governments created by them, is such an
interdict found. The power, however be its import
what it may, is obviously limited to a Territory
whilst remaining in that character as distinct from
that of a State.

As to the power of admitting new States into the
federal compact, the questions offering themselves
are; whether congress can attach conditions, or the
new States concur in conditions, which after admission,
would abridge or enlarge the constitutional
rights of legislation common to the other States;

whether Congress can by a compact with a new
member take power either to or from itself, or place
the new member above or below the equal rank &
rights possessed by the others; whether all such
stipulations, expressed or implied would not be
nullities, and so pronounced when brought to a
practical test. 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 discrimination,
is sufficiently evident.

In the case of Louisiana, there is a circumstance
which may deserve notice. In the Treaty ceding
it, a privilege was retained by the ceding party,
which distinguishes between its ports & others of the
U. S. for a special purpose & a short period.[5] This
privilege however was the result not of an ordinary

legislative power in Congress; nor was it the result
of an arrangement between Congress & the people
of Louisiana. It rests on the ground that the same
entire power, even in the nation, over that territory,
as over the original territory of the U. S. never existed;
the privilege alluded to being in the deed of
cession carved by the foreign owner, out of the title
conveyed to the purchaser. A sort of necessity
therefore was thought to belong to so peculiar &
extraordinary a case. Notwithstanding this plea
it is presumable that if the privilege had materially
affected the rights of other ports, or had been of
a permanent or durable character, the occurrence
would not have been so little regarded. Congress
would not be allowed to effect through the medium
of a Treaty, obnoxious discriminations between new
and old States, more than among the latter.

With respect to what has taken place in the N.
W. Territory, it may be observed, that the ordinance
giving its distinctive character on the Subject of
Slaveholding proceeded from the old Congress, acting,
with the best intentions, but under a charter which
contains no shadow of the authority exercised.
And it remains to be decided how far the States
formed within that Territory & admitted into the
Union, are on a different footing from its other
members, as to their legislative sovereignty.

For the grounds on which ⅗ of the slaves were
admitted into the ratio of representation, I will with
your permission, save trouble by referring to No.
54 of the Federalist. In addition, it may be stated

that this feature in the Constitution was combined
with that relating to the power over Commerce &
navigation. In truth these two powers, with those
relating to the importation of slaves, & the Articles
establishing the equality of representation in the
Senate & the rule of taxation, had a complicated
influence on each other which alone would have
justified the remark, that the Constitution was "the
result of mutual deference & Concession."

It was evident that the large States holding slaves,
and those not large which felt themselves so by
anticipation, would not have concurred in a constitution,
allowing them no more Representation in one
legislative branch than the smallest States, and in
the other less than their proportional contributions
to the Common Treasury.

The considerations which led to this mixed ratio
which had been very deliberately agreed on in Apl.,
1783, by the old Congress, make it probable that the
Convention could not have looked to a departure
from it, in any instance where slaves made a part
of the local population.

Whether the Convention could have looked to the
existence of slavery at all in the new States is a
point on which I can add little to what has been
already stated. The great object of the Convention
seemed to be to prohibit the increase by the importation
of slaves. A power to emancipate slaves
was disclaimed; Nor is anything recollected that
denoted a view to controul the distribution of those
within the Country. The case of the N. Western

Territory was probably superseded by the provision
agst. the importation of slaves by S. Carolina &
Georgia, which had not then passed laws prohibiting
it. When the existence of slavery in that territory
was precluded, the importation of slaves was rapidly
going on, and the only mode of checking it was by
narrowing the space open to them. It is not an
unfair inference that the expedient would not have
been undertaken, if the power afterward given to
terminate the importation everywhere, had existed
or been even anticipated. It has appeared that the
present Congress never followed the example during
the twenty years preceding the prohibitory epoch.

The expediency of exercising a supposed power
in Congress, to prevent a diffusion of the slaves
actually in the Country, as far as the local authorities
may admit them, resolves itself into the probable
effects of such a diffusion on the interest of the
slaves and of the Nation.

Will it or will it not better the condition of the
slaves, by lessening the number belonging to individual
masters, and intermixing both with greater
masses of free people? Will partial manumissions be
more or less likely to take place, and a general
emancipation be accelerated or retarded? Will the
moral & physical condition of slaves, in the mean
time, be improved or deteriorated? What do experiences
and appearances decide as to the comparative
rates of generative increase, in their present,
and, in a dispersed situation?

Will the aggregate strength security tranquillity

and harmony of the whole nation be advanced or
impaired by lessening the proportion of slaves to the
free people in particular sections of it?

How far an occlusion of the space now vacant, agst.
the introduction of slaves may be essential to prevent
compleatly a smuggled importation of them
from abroad, ought to influence the question of
expediency. must be decided by a reasonable estimate
of the degree in which the importation would
take place in spight of the spirit of the times, the
increasing co-operation of foreign powers agst the
slave trade, the increasing rigor of the Acts of Congress
and the vigilant enforcement of them by the
Executive; and by a fair comparison of this estimate
with the considerations opposed to such an occlusion.

Will a multiplication of States holding slaves,
multiply advocates of the importation of foreign
slaves, so as to endanger the continuance of the
prohibitory Acts of Congress? To such an apprehension
seem to be opposed the facts, that the States
holding fewest slaves are those which most readily
abolished slavery altogether; that of the 13 primitive
States. Eleven had prohibited the importation before
the power was given to Congs., that all of them,
with the newly added States, unanimously concurred
in exerting that power; that most of the present
slaveholding States cannot be tempted by motives
of interest to favor the reopening of the ports to
foreign slaves; and that these, with the States which
have even abolished slavery within themselves,
could "never be outnumbered in the National Councils

by new States wishing for slaves, and not satisfied
with the supply attainable within the U. S.

On the whole, the Missouri question, as a constitutional
one, amounts to the question whether
the condition proposed to be annexed to the admission
of Missouri would or would not be void
in itself, or become void the moment the territory
should enter as a State within the pale of the Constitution.
And as a question of expediency &
humanity, it depends essentially on the probable
influence of such restrictions on the quantity &
duration of slavery, and on the general condition of
slaves in the U. S.

The question raised with regard to the tenor of the
stipulation in the Louisiana Treaty, on the subject
of its admission, is one which I have not examined,
and on which I could probably throw no light if I had.

Under one aspect of the general subject. I cannot
avoid saying, that apart from its merits under others,
the tendency of what has passed and is passing, fills
me with no slight anxiety. Parties under some
denominations or other must always be expected
in a Govt. as free as ours. When the individuals
belonging to them are intermingled in every part of
the whole Country, they strengthen the Union of
the Whole, while they divide every part. Should
a State of parties arise, founded on geographical
boundaries and other Physical & permanent distinctions
which happen to coincide with them, what
is to controul those great repulsive Masses from
awful shocks agst. each other?

The delay in answering your letter made me fear
you might doubt my readiness to comply with its
requests. I now fear you will think I have done
more than these justified. I have been the less
reserved because you are so ready to conform to
my inclination formerly expressed, not to be drawn
from my sequestered position into public view.

Since I thanked you for the copy of your late
volume[6] I have had the pleasure of going thro' it;
and I should have been much disappointed, if it had
been recd. by the public with less favor than is everywhere
manifested. According to all accounts from
the Continent of Europe, the American, character
has suffered much there by libels conveyed by
British Prints, or circulated by itinerant Calumniators.
It is to be hoped the truths in your book
may find their way thither. Good translations of
the Preface alone could not but open many eyes
which have been blinded by prejudices against
this Country.