JFC2017 – Page 4 – Warren Throckmorton

The 1787 Constitutional Convention – No Religious Test

August 30, 1787 (Click to read Madison’s notes on the day)

Summary

The delegates continued to fine-tune the report of the Detail Committee. They decided to permit new states on equal terms with existing states and prohibited the alteration of states without consent of state legislatures. They voted to include a guarantee of a Republican form of government. The delegates, with little discussion, included the no religious test clause.

Influences on the Delegates

There were no obvious influences on the discussions but a monumental clause was passed.
Article 20 was then taken up. The words “or affirmation,” were added, after “oath.”

Mr. PINCKNEY moved to add to the Article: “but no religious test shall ever be required as a qualification to any office or public trust under the authority of the United States.”
Mr. SHERMAN thought it unnecessary, the prevailing liberality being a sufficient security against such tests.
Mr. GOUVERNEUR MORRIS and General PINCKNEY approved the motion.
The motion was agreed to, nem. con., and then the whole article, — North Carolina only, no; and Maryland, divided.

To Article 20, was added the “no religious test” clause. Even though Roger Sherman thought the clause was not needed due to the “prevailing liberality,” the delegate unanimously added it to Article 20.

Article XX.
The members of the Legislatures, and the Executive and Judicial officers of the United States, and of the several States, shall be bound by oath to support this Constitution.

Sherman was never more wrong. As liberal as that period in history was, it took many years for the states to eliminate those tests. However, Pinckney’s motion led the way.
I have visited this issue before. In the North Carolina convention to ratify the Constitution, the matter came up. The interpretation of the clause prevented religious bigotry and the mixture of church and state.

1787 Constitutional Convention Series

To read my series examining the proceedings of the Constitution Convention, click here. In this series, I am writing about any obvious influences on the development of the Constitution which were mentioned by the delegates to the Convention. Specifically, I am testing David Barton’s claim that “every clause” of the Constitution is based on biblical principles. Thus far, I have found nothing supporting the claim. However, stay tuned, the series will run until mid-September.
Constitutional Convention Series (click the link)
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The 1787 Constitutional Convention – Fugitive Slave Clause Passed

August 29, 1787 (Click to read Madison’s notes)

Summary

A committee was formed to consider Article 16. A fugitive slave clause was passed to be added to the end of Article 15.

Influences on the Delegates

Although not an example of an influence, I think the following passage from Virginia’s Edmund Randolph regarding trade puts the lie to the claim that Ben Franklin’s call to prayer had some immediate impact to bring the delegates together. Here we are in late August and Randolph says the Constitution has “odious” elements and he is on the fence about his support.

Mr. RANDOLPH said that there were features so odious in the Constitution, as it now stands, that he doubted whether he should be able to agree to it. A rejection of the motion would complete the deformity of the system. He took notice of the argument in favor of giving the power over trade to a majority, drawn from the opportunity foreign powers would have of obstructing retaliatory measures, if two thirds were made requisite. He did not think there was weight in that consideration. The difference between a majority and two thirds, did not afford room for such an opportunity. Foreign influence would also be more likely to be exerted on the President, who could require three fourths by his negative. He did not mean, however, to enter into the merits. What he had in view was merely to pave the way for a declaration, which he might be hereafter obliged to make; if an accumulation of obnoxious ingredients should take place, that he could not give his assent to the plan.

On the slave trade, the delegates considered a report and had the following discussion about Article 15 (see below):

ARTICLE XV.
Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.

The delegates unanimously added a strict fugitive slave clause.

Mr. BUTLER moved to insert after Article 15, “If any person bound to service or labor in any of the United States, shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor,” — which was agreed to, nem. con.

David Barton has been lately claiming that most of the founding fathers were anti-slavery. However, the only numbers that matter on that subject are the vote tallies in favor of making slavery acceptable in the new nation. In this case, fugitive slaves lost 11-0. It didn’t help slaves to have declarations against slavery when the delegates voted to keep it legal.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – Judges, State Powers and Fugitive Slaves

August 28, 1787 (Click to read Madison’s notes)

Summary

The delegates continued tweaking the judiciary and spent much time on details of state powers.

Influences on the Delegates

The delegates did not refer to other nations or refer to specific influences today.
I want to point out one exchange initiated by the delegates from South Carolina. On the discussion of extradition between states, Colonel Pinckney wanted to include runaway slaves. Article XV reads:

ARTICLE XV.
Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.
General PINCKNEY was not satisfied with it. He seemed to wish some provision should be included in favor of property in slaves.
On the question on Article 14, —
New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, aye, — 9; South Carolina, no, — 1; Georgia, divided.
Article 15 being then taken up, the words, “high misdemeanor,” were struck out, and the words, “other crime,” inserted, in order to comprehend all proper cases; it being doubtful whether “high misdemeanor” had not a technical meaning too limited.
Mr. BUTLER and Mr. PINCKNEY moved to require “fugitive slaves and servants to be delivered up like criminals.”
Mr. WILSON. This would oblige the Executive of the State to do it at the public expense.
Mr. SHERMAN saw no more propriety in the public seizing and surrendering a slave or servant than a horse.
Mr. BUTLER withdrew his proposition, in order that some particular provision might be made, apart from this article.
Article 15, as amended, was then agreed to, nem. con.

After Pinckney couldn’t get a motion attached to Article XIV, he and Butler moved to add their fugitive slave clause. However, it was not added but Butler saved it for later.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – The Judiciary

August 27, 1787 (Click to read Madison’s notes)

Summary

The delegates voted to make the president commander chief of the militia when called to defend the nation. The delegates fine-tuned the judiciary today.

Influences on the Delegates

Britain again was the model for the question of removing judges for an offense.

Mr. GOUVERNEUR MORRIS thought it a contradiction in terms, to say, that the Judges should hold their offices during good behaviour, and yet be removeable without a trial. Besides, it was fundamentally wrong to subject judges to so arbitrary an authority.
Mr. SHERMAN saw no contradiction or impropriety, if this were made a part of the constitutional regulation of the Judiciary establishment. He observed, that a like provision was contained in the British statutes.
Mr. RUTLEDGE. If the Supreme Court is to judge between the United States and particular States, this alone is an insuperable objection to the motion.
Mr. WILSON considered such a provision in the British Government as less dangerous than here; the House of Lords and House of Commons being less likely to concur on the same occasions. Chief Justice Holt, he remarked, had successively offended, by his independent conduct, both Houses of Parliament. Had this happened at the same time, he would have been ousted. The Judges would be in a bad situation, if made to depend on any gust of faction which might prevail in the two branches of our Government.

1787 Constitutional Convention Series

The 1787 Constitutional Convention – What Biblical Principle Inspired Protection of the Slave Trade?

August 25, 1787 (Click to read Madison’s notes on the day)

Summary

The delegates approved a provision on debt and allowed for the common defense. The big news was that the delegates decided to prohibit Congress from abolishing the slave trade until 1808.

Influences on the Delegates

One reason I started this series was to test David Barton’s claim that every clause of the Constitution has a biblical foundation. My efforts have not substantiated that claim. There are many influences ranging from Greece and Rome to the experiences of the delegates in their home states. It has been rare for the Bible or Christianity to come up at all.
In the session of August 25, the delegates voted to keep Congress from acting against the slave trade until 1808. I must ask David Barton what biblical principle was at the root of that clause? What biblical principle allowed the Northern delegates to acquiesce to the Southern delegates? What principle animated the resolute efforts of the Southern delegates to threaten to leave the union over human bondage?
Below is the debate over the matter.

The Report of the Committee of eleven (see Friday, the twenty-fourth), being taken up, —
General PINCKNEY moved to strike out the words, “the year eighteen hundred,” as the year limiting the importation of slaves; and to insert the words “the year eighteen hundred and eight.”
Mr. GORHAM seconded the motion.
Mr. MADISON. Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the American character than to say nothing about it in the Constitution.
On the motion, which passed in the affirmative, — New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, Georgia, aye, — 7; New Jersey, Pennsylvania, Delaware, Virginia, no, — 4.
Mr. GOUVERNEUR MORRIS was for making the clause read at once, “the importation of slaves into North Carolina, South Carolina, and Georgia, shall not be prohibited, &c.” This he said would be most fair, and would avoid the ambiguity by which, under the power with regard to naturalization, the liberty reserved to the States might be defeated. He wished it to be known, also, that this part of the Constitution was a compliance with those States. If the change of language, however, should be objected to, by the members from those states, he should not urge it.
Colonel MASON was not against using the term “slaves,” but against naming North Carolina, South Carolina, and Georgia, lest it should give offence to the people of those States.
Mr. SHERMAN liked a description better than the terms proposed, which had been declined by the old Congress, and were not pleasing to some people.
Mr. CLYMER concurred with Mr. SHERMAN.
Mr. WILLIAMSON said, that both in opinion and practice he was against slavery; but thought it more in favor of humanity, from a view of all circumstances, to let in South Carolina and Georgia on those terms, than to exclude them from the Union.
Mr. GOUVERNEUR MORRIS withdrew his motion.
Mr. DICKINSON wished the clause to be confined to the States which had not themselves prohibited the importation of slaves; and for that purpose moved to amend the clause, so as to read: “The importation of slaves into such of the states as shall permit the same, shall not be prohibited by the legislature of the United States until the year 1808; which was disagreed to, nem. con.¹
The first part of the Report was then agreed to, amended as follows: “The migration or importation of such persons as the several states now existing shall think proper to admit, shall not be prohibited by the legislature prior to the year 1808,” —
New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina. South Carolina, Georgia, aye, — 7; New Jersey, Pennsylvania, Delaware, Virginia, no, — 4.
Mr. BALDWIN, in order to restrain and more explicitly define, “the average duty,” moved to strike out of the second part the words, “average of the duties laid on imports,” and insert “common impost on articles not enumerated”; which was agreed to, nem. con.
Mr. SHERMAN was against this second part, as acknowledging men to be property, by taxing them as such under the character of slaves.
Mr. KING and Mr. LANGDON considered this as the price of the first part.
General PINCKNEY admitted that it was so.
Colonel MASON. Not to tax, will be equivalent to a bounty on, the importation of slaves.
Mr. GORHAM thought that Mr. SHERMAN should consider the duty, not as implying that slaves are property, but as a discouragement to the importation of them.
Mr. GOUVERNEUR MORRIS remarked, that, as the clause now stands, it implies that the Legislature may tax freemen imported.
Mr. SHERMAN, in answer to Mr. GORHAM, observed, that the smallness of the duty showed revenue to be the object, not the discouragement of the importation.
Mr. MADISON thought it wrong to admit in the Constitution the idea that there could be property in men. The reason of duties did not hold, as slaves are not, like merchandise, consumed, &c.
Colonel MASON, in answer to Mr. GOUVERNEUR MORRIS. The provision, as it stands, was necessary for the case of convicts, in order to prevent the introduction of them.
It was finally agreed, nem. con., to make the clause read: “but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person”; and then the second part, as amended, was agreed to.

Some delegates were embarrassed to use the word slaves and Madison didn’t want slavery in the Constitution. The Northern delegates thought it more important to keep South Carolina and Georgia than to have a slavery-free nation.