Bench Memos

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The Perennial Publius, part 54


I took a little grief from one of my readers when I said, in my entry on Federalist No. 42, that James Madison, a slaveholder all his life, detested slavery, as evidenced by his calling it “barbarism” and “oppression” in that essay.  Well, the evidence for this view of Madison’s opinion piles up in No. 54, perhaps the most peculiar essay in the whole of the Federalist.

The essay is a defense of what is called the “three-fifths compromise” of the Constitution, in which, for every five slaves counted in the census, the number three was added to the free population for purposes of determining how many seats each state would have in the House of Representatives (the formula was also to be used for “direct taxes” apportionable by population, but that is not relevant here).  Writing for a New York audience–where slavery was still in existence but in nothing like the numbers south of the Mason-Dixon line–Madison makes a fascinating rhetorical maneuver.  In the guise of Publius, Madison the southerner can be taken for a New Yorker.  In that persona, he offers the defense of the three-fifths clause that “one of our southern brethren” might give.  And while the argument he then relates might just–just barely–reconcile a northern reader to the advantage the South will receive in congressional representation, it constitutes no defense whatever of slavery as an institution that can be squared with right principles in morals or politics.

On the contrary, Madison’s imaginary “advocate for the southern interests” supplies the future abolitionist with some very good arguments against slavery.  Some of what he says here was in fact echoed in 1852 by the great abolitionist orator (and former slave) Frederick Douglass.

Madison’s pivotal argument, or that of his imaginary southerner, is to note the conflicted character of the slave’s legal status in the South, “being considered by our laws, in some respects, as persons, and in other respects, as property.”  Subject to “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 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 society; not as a part of the irrational creation; as a moral person, not as a mere article of property

It is perfectly clear which status Madison regards as natural, and which as artificial.  For it is “only under the pretext” of local laws that slavery exists at all, with human beings regarded as property, and his fictional southern advocate admits “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.”

Whatever the effectiveness or ineffectiveness of this essay as a defense of the three-fifths formula to northern opinion at the time, the lasting interest of Madison’s performance here is in his evident revulsion at slavery in light of the principles of our Revolution.  And so James Madison the southerner pretends to be a northerner, in order to pretend to be a southerner, in order to offer an account of the South’s interest in slavery, which inescapably condemns the institution from the mouth of the southern advocate himself.

(For explanation of this recurring feature, see here.)

Postscript: This anti-slavery essay was published twenty-one years to the day before the birth of Abraham Lincoln.  For some reason that just grabbed my attention.


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