Property Taxes on Slaves

The U.S. Constitution granted Congress the authority to tax slaves as property in Article I, Section 9, stating:

The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. (Bowditch 121)

Despite the Framers' failure to use the word "slave," it was well-understood that the migration or importation of "persons" referred to slaves. As William I. Bowditch pointed out in his book Slavery and the Constitution:

A person who is imported does not import himself, but is imported by some other person. He is passive. The importer is the free agent; the person imported is not a free agent … Whenever we hear an importation spoken of, we instantly infer an importer, an owner, and property imported … On our construction, Congress had power to lay a tax on persons imported as property or slaves, but had no right to tax free persons migrating. (p. 121)

Much controversy surrounded the drafting and adoption of Article I, Section 9. The final constitutional provision was the culmination of a compromise between the eastern states, which relied heavily upon sea trade, and the slave-holding southern states.

A constitutional delegate who served on the committee that considered the adoption of Article I, Section 9 summarized the "well-known history of the compromise involved in this clause:"

I found the Eastern States, notwithstanding their aversion to slavery, were very willing to indulge the Southern States, at least with a temporary liberty to prosecute the slave trade, provided the Southern States would in their turn gratify them, by laying no restriction on Navigation Acts; and, after a very little time, the committee, by a great majority, agreed on a report, by which the general government was to be prohibited from preventing the importation of slaves for a limited time, and the restricted clause relative to the Navigation Acts was to be omitted. This report was adopted by a majority of the Convention, but not without considerable opposition (emphasis added). (Bowditch, p. 131)

Thus, the slave trade would be allowed to continue for at least twenty more years, to the advantage of the Southern states, and only a simple majority of Congress would be required to pass navigation and commerce laws, to the advantage of the Eastern states.

The adoption of Article I, Section 9 also represented a compromise between constitutional delegates who opposed slavery and those who advocated slavery. Several Framers opposed to the institution of slavery viewed Article I, Section 9 as a partial victory. In the Pennsylvania Constitutional Convention,

Mr. Wilson said:

Under the present confederation, the States may admit the importation of slaves as long as they please; but by this article, after the year 1808, the Congress will have the power to prohibit such importation, notwithstanding the disposition of any State to the contrary …" (Bowditch, p. 130).

Framer James Madison expressed similar sentiments in the Virginia Convention:

I should conceive this clause to [be] impolitic, if it were one of those things which could be excluded without encountering greater evils … Under the articles of confederation, [the slave trade] might be continued for ever; but, by this clause, an end may be put to it after twenty years. There is, therefore, an amelioration of our circumstances. A tax may be laid in the meantime" (Bowditch, p.131-32).

The taxation of slave property was also embraced by abolitionists at the American Anti-Slavery Society's Annual meeting in 1850 in New York:

"The following resolutions were offered by George Doughty of Long Island:

Resolved, That Congress be petitioned to tax slave property enough, at least, to pay the wages of the number of representatives that have their seats on Congress in consequence of their slave property; and,

Resolved, That a pledge be circulated generally, pledging the signers not to vote for any man unless he is in favor of taxing slave property …" (The Liberator).

Many state constitutions provided for the "uniform and equal rate of taxation of all personal and real property," including Kansas (Greeley 154). A 1779 Virginia statute provided that a tax on property "shall not extend to any negro or mulatto servant or slaves" (Hurd 2:2-3). However, many states not only taxed slaves as property, but oftentimes taxed the slaves of non-residents at higher rates than the slaves of residents. During a legislative debate about whether non-resident slave owners should be compensated for slaves that are executed within Mississippi, the President of the Senate, Dabney Lipscomb, pointed out that Kentucky and two other states "had claimed the right to tax slave property of non-residents higher than that of the citizen" (The Mississippian). In addition, Mr. Lipscomb:

believed that absenteeism is a grievous evil, and he was especially opposed to it in regard to the owners of large numbers of slaves. He was in favor of taxing them higher; much higher; than those of the citizen, and he believed the right of the state clear, and her duty to do so imperious (The Mississippian).

The District of Columbia also taxed the slaves of non-residents at a rate higher than slaves of residents:

Sec. 36. From and after the tenth day of April, eighteen hundred and twenty-three, the following tax be, and the same is hereby, imposed on slaves of non-residents hired to persons residing within the city of Washington, to wit: On every male slave above the age of eighteen years, and under forty-five, twenty dollars per annum; on every male slave under eighteen and above twelve years of age, twelve dollars per annum; and on every female slave between fifteen and forty-five years of age, two dollars per annum. Act, 5th April, 1823 §1 (Washington [D.C.] 38).

The D.C. statute further provided for the payment of penalties by non-resident owners who failed to pay the annual taxes, and who attempted or were successful at evading payment of these taxes and penalties (Washington [D.C.] 38).

There was also a debate about whether slave property should be subject to direct taxes, i.e., taxes based on the revenue they created, in the same manner in which all other property was taxed pursuant to Article I, Section 2 of the U.S. Constitution. Article I, Section 2 provided that:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The writer of a July 23, 1860 article in the Fayetteville Observer framed the issues as such:

Shall the Constitution be so amended as to give the Legislature the same power to tax slave property, that it now has over all other kinds of property? Shall slave property pay its fair share of the public taxes? Mr. Pool and the Whigs are in favor of the change. Gov. Ellis and the Democrats are opposed to change.

In an editorial published on April 12, 1860, a proponent of the taxation of slaves "admonished the people of the State against all such men" who

say they are in favor of the proposition to so change the Constitution as to tax slave property as other property may be taxed, but nevertheless say they will vote for John W. Ellis for governor, notwithstanding he says this proposition is dangerous, impolitic and unjust.

Relief would not come for those in favor of the direct taxation of slave property until after the abolition of slavery. In the 1895 case of Pollock v. Farmers) Loan & Trust Co., 157 U.S. 429, aff'd on reh'g, 158 U.S. 601 (1895), the United State Supreme Court ruled that taxes on income from property should be treated as direct taxes and thus subject to apportionment. After the ratification of the Sixteenth Amendment in 1913, no federal income taxes were required to be apportioned, regardless of whether they are direct taxes (taxes on income from property) or indirect taxes (all other income taxes).

BIBLIOGRAPHY

Bowditch, William Ingersoll. Slavery and the Constitution. Boston, 1849.

Fayetteville Observer, (Fayetteville, NC) Monday, July 23, 1860. Issue 2251, pg. 3, col C, "The Issue."

Greeley, Horace. A History of The Struggle For Slavery Extension or Restriction In The United States: From The Declaration Of Independence To The Present Day. New York, 1856.

Hurd, John C. The Law of Freedom and Bondage In The United States. Vol. 2. Boston, 1858–1862.

The Liberator, (Boston, MA) Friday, May 24, 1850. Issue 21, pg. 2, col C, "Annual Meeting at New York."

The Mississippian, Friday, March 03, 1848. Issue 10, pg. 1, col A, "Senate Proceedings."

The Slavery Code of the District of Columbia: Together With Notes and Judicial Decisions Explanatory of the Same. Washington [D.C.], 1862.

                                             Jodi M. Savage