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The Beacon of Liberty, Vol. I, Issue 7

The Beacon of Liberty, Vol. I, Issue 7

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Published by Matt Erickson
The Beacon of Liberty, Volume I, Issue 7 looks at Article I, Section 2, Clause 3 of the U.S. Constitution for a continued look at apportionment
The Beacon of Liberty, Volume I, Issue 7 looks at Article I, Section 2, Clause 3 of the U.S. Constitution for a continued look at apportionment

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Categories:Types, Research, History
Published by: Matt Erickson on Aug 12, 2012
Copyright:Public Domain

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 Article I, Section 2, Clause 3
of the Constitutiongives the following formula for enumerating the respective
numbers 
of persons within each State for the purposes of apportioning Representatives and direct Taxes among theseveral States:
"the whole Number of free Persons, including those
bound to Service for a Term of Years, and excludingIndians not taxed, three fifths of all other Persons.”
In other words, every 
freePerson
 was equal to one
enumeratedPerson
. So too was each
 person
 who was
bound to Service 
for only a Term of Years (equal to one
enumeratedperson
). Indians not taxed were neithercounted nor apportioned, and therefore were not
enumeratedperson
to any degree. All otherPersons(slaves) were equal to 3/5
ths
of one
enumerated Person
.
Given that the Constitution mandates the enumeration
of persons for apportionment purposes, the saidenumeration or census must be performed (within three
years of the first meeting of the Congress and subsequently at least
every ten years thereafter). The counting of thesepersons must therefore include the relevant information todetermine the total number of 
enumerated persons 
.The minimum information that a census wouldtherefore gather when slavery was permitted was thenumber of 
Persons 
 who were free and the number of 
other Persons 
 who were not free, with the enumeration oIndians not taxed unnecessary.The first census, performed in 1790, tracked thefollowing divisions of persons: names of heads of household; number of free white males ages 16 and older;number of free white males under the age of 16; numberof free white females; number of all other free persons;and the number of slaves.Strictly for purposes of apportionment, there is noneed to differentiate between
free, white persons; free  persons of color 
; or
those bound to Service 
, as all thesepersons were held equivalent to
free persons 
for thispurpose by the Constitution. There was also no legal needto group
persons by either
age 
or
 gender 
for apportionmentpurposes.
The
other persons 
category who were counted at thethree-fifths ratio consisted of slaves. These persons werecounted individually as 3/5
ths
of a person: collectively,every five slaves were counted as three enumeratedpersons. This peculiar policy was the result of a compromise at the constitutional convention betweendelegates from the Southern States who wanted slavescounted equally with free persons and Northern delegates who thought that slaves, as property, should not be counted.It is ironic that the South, which allowed for black persons to be held not as (free)
 persons 
, but as
 property 
, wanted these slaves counted (not as
 property 
, but) as
 persons 
for purposes of apportionment.
The North, whoopposed the holding of 
 persons 
as
 property 
, in turn, wanted the slaves held as
 property 
so that they would not
be counted as
 persons 
for apportionment of Representatives!
Of the two, the North may actually be lessinconsistent. It is true that they opposed slavery; but they also did not necessarily want blacks in America either.The Fifth Amendment mandates that "no personshall…be deprived of…property, without due process of law…(and) just compensation". If one is able to ignore a slave as being a person (though with few rights), then noslave-owner could be deprived of his "property" — theslave — by government action, at least not without dueprocess and just compensation.
Clause Discussed:
• Article I, Section 2, Clause 3
Concept Discussed:
• Apportionment
Volume I: Issue 7
Distributed by:FoundationForLiberty.org
w
 
ww.FoundationForLiber
 
t
 
 y.org
1500 Highway 2
Copyright 2002, 2005 by Beacon of Liberty, LLC.
Leavenworth, WA 98826
www.BeaconofLiberty.org
 
During the Civil War, in keeping with this principle,
Congress set aside one million dollars to pay slave-owners
in compensation for abolishing slavery and freeing slaves within the District of Columbia. To show the North'strue colors regarding (former) slaves in America,$100,000 of this money was allocated for shipping thosemanumitted slaves back to Africa (or elsewhere)!In an
 April 10
th
, 1862
legislative Act, Congressprovided:
"That all persons held to service or labor withinthe District of Columbia by reason of African descent
are hereby discharged and freed of and from all claim
to such service or labor;and from and after thepassage of this act neither slavery nor involuntaryservitude, except for crime, whereof the party shall
be duly convicted, shall hereafter exist in said District."
1
This Act specifies that only persons held to(involuntary)
service 
or
laborby reason of their Africandescent 
 were freed. Persons not of African descent heldto (temporary)
service 
 were left unaffected by this act.
Service 
referred to the many (white) persons who wereindentured at their own discretion for only a specifiedperiod of time (apprentices, immigrants). Only peopleof African descent were permanently held to
labor 
.Section 2 of this Act allowed (various) owners whoheld claims to such persons to present petitions to theUnited States for damages from their slaves being freedfrom such claims, which the United States would pay tothe owners in the
aggregate average 
amount up to $300per slave (Section 3).
Section 11
of the Act appropriated $100,000:
"to aid in the colonization and settlement of suchfree persons of African descent now residing in saidDistrict, including those to be liberated by this act, asmay desire to emigrate to the Republics of Hayti orLiberia, or such other country beyond the limits ofthe United States."
The principles of the Constitution are powerfulprinciples which the government cannot (easily)circumvent, even when up against immoral legalprinciples of States. Congress, in freeing the Slaves within the District of Columbia, followed the 5
th
 Amendment principle of 
 just compensation
incompensating the owners of such "property".In like manner, even President Lincoln's 1863Proclamation (of emancipation) only emancipated suchslaves as were no longer "in" the United States (certainStates had left the Union and therefore its protection;this proclamation only acted upon those States whichleft the Union, where the President no longer had any actual authority).Following is the entire text of the Proclamation, with highlights added, for those not familiar with thelimited extent of its authority.
January 1, 1863By the President of the United States of America:A Proclamation."Whereas on the 22
d
day of September, A.D.1862, a proclamation was issued by the President ofthe United States, containing, among other things,the following, to wit:"'
That
on the 1
st
day of January, A.D.1863,
allpersons held as slaves within any State
ordesignated part of a State the people whereof shallthen be
in rebellion against the United Statesshall be
then, thenceforward, and
forever free
;
and
the executive government of
the United States
,including the military and naval authority thereof,
willrecognize
and maintain
the freedom of suchpersons
and will do no act or acts to repress suchpersons, or any of them,
inany efforts
they 
maymake for their
actual 
freedom.
"'That the executive will on the 1
st
day of Januaryaforesaid, by proclamation, designate the States andparts of States, if any, in which the people thereof,respectively, shall then be in rebellion against theUnited States;and the fact that any State or thepeople thereof shall on that day be in good faithrepresented in the Congress of the United States bymembers chosen thereto at elections wherein amajority of the qualified voters of such States shallhave participated shall, in the absence of strongcountervailing testimony, be deemed conclusiveevidence that such State and the people thereof arenot then in rebellion against the United States.'"Now, therefore,
I
, Abraham Lincoln, President ofthe United States, by virtue of the power in mevested as Commander-in-Chief of the Army and Navyof the United States in time of actual armed rebellionagainst the authority and government of the UnitedStates, as a fit and necessary war measure forsuppressing said rebellion, do, on this 1
st
day ofJanuary, A.D.1863, and in accordance with mypurpose so to do, publicly proclaimed for the fullperiod of one hundred days from the first day abovementioned, order and
designate
as
the States andparts of States wherein the people
thereof,respectively,
are
this day
in rebellion against the United States 
the following, to wit:"Arkansas, Texas, Louisiana (except the parishesof St.Bernard, Plaquemines, Jefferson, St.John, St.Charles, St.James, Ascension, Assumption,Terrebonne, Lafourche, St.Mary, St.Martin, andOrleans, including the city of New Orleans),Mississippi, Alabama, Florida, Georgia, SouthCarolina, North Carolina, and Virginia (except theforty-eight counties designated as West Virginia, and
also the counties of Berkeley, Accomac, Northhampton,
Elizabeth City, York, Princess Anne, and Norfolk,including the cities of Norfolk and Portsmouth), and
which excepted parts are
for the present
leftprecisely as if this proclamation were not issued
.
B.O.L. Volume I:Issue 7: Page 2
 
1. Volume 12, Statutes at Large, pg. 376.
 
"And by virtue of the power and for the purposeaforesaid,
I do order and declare that all personsheld as slaves within said designated States andparts of States are,and henceforward shall be,free;and that the
Executive 
Government of theUnited States,including the military and navalauthorities thereof,will recognize and maintainthe freedom of said persons
."And I hereby enjoin upon the people so
declared to be free
to abstain from all violence,unless in necessary self-defense;and I recommendto them that, in all cases when allowed, they laborfaithfully for reasonable wages."And I further declare and make known thatsuch persons of suitable condition will be receivedinto the armed service of the United States togarrison forts, positions, stations, and other places,and to man vessels of all sorts in said service."And upon this act, sincerely believed to be anact of justice, warranted by the Constitution uponmilitary necessity, I invoke the considerate judgmentof mankind and the gracious favor of Almighty God.
"In witness whereof, I have hereunto set my handand caused the seal of the United States to be affixed.
"Done at the City of Washington, this first day ofJanuary, in the year of our Lord one thousand eighthundred and sixty three, and of the Independence ofthe United States of America the eighty seventh."By the President.
Abraham Lincoln 
."
2
Two main sentences within the EmancipationProclamation detail the actual workings of this document.Being "forever free" is the stated goal of theProclamation of "all persons held as slaves"."All persons held as slaves within any State...shallbe...forever free" sounds great until one notices that this wording applies only to the States and parts of States which are then "in rebellion against the United States". When one realizes that this document is issuedunder the authority of the United States, oneunderstands that the slaves are being "freed" in the area no longer under the authority of the United States.Lincoln "freed" only those slaves who were in (partsof) States which had succeeded from the Union! Inother words, he did not free anyone, certainly not atleast where he actually had any executive authority.The "kicker" is then given in the last line of thesecond paragraph, whereby the said slaves shall be freeby the "efforts
they 
may make for their
actual 
freedom".The Proclamation did nothing to directly free theslaves, but it did provide a 
safe haven
to any slave whoescaped on his own accord and made it to safety. Article IV, Section 2, Clause 3 of the Constitutionand its requirement to return escaped slaves upon a "Claim of the Party to whom such Service or Labor may be due" would not apply to a slave-master now foreignto the protection of the Constitution.The proclamation treats in opposing fashion thoseStates still within the Union from those States no longerapart of the Union. In all areas still considered
as part of the United States 
, the Proclamation itself declares inthe fifth paragraph that these States (and parts of States)must act "precisely as if this proclamation were notissued". Where the Proclamation had actual authority,
it was without legal effect! 
Following the strategy of "the enemy of my enemy is my friend" the "
Executive 
Government of the UnitedStates, including the military and naval authoritiesthereof", would specifically "recognize and maintain thefreedom of said persons".There is not even any claim as to how the
legislative 
or
 judicial 
branches would view the slaves — as escapedslaves which must be returned or as freed former slavesfrom States no longer part of the Union!Lincoln, as Commander-in-Chief, used the samemilitary strategy England used against America during the Revolutionary War, giving incentive for thoseenslaved to leave the enemy to weaken that enemy whilethey themselves gained strength through new recruits.The issue of whether to count slaves partially, fully or not at all as persons for apportionment of Representatives was a major obstacle which confrontedthe convention delegates. James Madison's
Notes of  Debates in the Federal Convention
provide a great dealof the discussion which ensued in the matter.Pierce Butler and Charles Cotesworth Pinckney  were two deputy delegates from South Carolina whofairly summed up (on July 11
th
, 1787) the viewpoint of the South which generally insisted that:
"blacks be included in the rule ofRepresentation,
equally 
with the Whites."
 William Patterson, of New Jersey, spoke at theconvention (on July 9
th
, 1787) and summed up theNorths viewpoint by stating (noted by Madison) that:
"He could regard negroes slaves in no light butas property…And if Negroes are not represented inthe States to which they belong, why should they berepresented in the General Government?…He wasalso against such an indirect encouragement of theslave trade."
B.O.L. I:7:3
The Emancipation Proclamation had noauthority where it actually had authority.
Slaves as three-fifths of a Person
2. Vol. 12, Statutes at Large, Appendix, pg. 1268.

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