Dark Bargain

by Lawrence Goldstone

  *Alluding to a prohibition on the slave trade that was to take effect in 1808.

  *This interpretation of the twenty-year extension of the slave trade was exactly the opposite of the argument that James Madison was making to the citizens of New York as "Publius" in the Federalist.

  PART I

  * * *

  Reluctant Nation

  1. DEVIL IN THE MIST

  Few milestones in the history of humanity's struggle for self-rule have been as significant as the United States Constitution. The four months in which the Constitution came into being—from May to September 1787—were as dramatic and compelling as the document itself, and the delegates as intriguing a group of characters as has ever sat down to create a country. Lawyers, farmers, shippers, plantation owners, scientists, a philosopher or two, and a lot of speculators—these men were a study in extremes, geographically, politically, and socially.

  The youngest was not the thirty-year-old Charles Pinckney but rather a callow twenty-seven-year-old from New Jersey named Jonathan Dayton, who barely opened his mouth, but nonetheless later had a city in Ohio named for him. The oldest was the eighty-one-year-old, gout-ridden Benjamin Franklin, "a short, fat, trunched old man"1 who was carried to the meetings on a chair borne by four convicts. From Massachusetts came the quixotic capitalist Elbridge Gerry; from North Carolina, the scientist and physician Hugh Williamson; and from Maryland, the besotted Luther Martin, about whom it was later said, "the times must be momentous indeed . . . for the whole week Luther Martin has resided in Washington, he has not once been seen intoxicated in the public streets!"2 Sometimes extremes existed within delegations: John Langdon, the richest man in New Hampshire, was forced to pay the expenses of his fellow delegate Nicholas Gilman, who was virtually penniless. To add grav-ltas to the proceedings, a reluctant George Washington had been induced to once again leave his beloved Mount Vernon and join the Virginia delegation.

  No Adams would be present, nor would a Lee. Patrick Henry stayed home and Thomas Jefferson was in Paris. But each delegate who did attend was a man of power and prestige in his home state—Jefferson called them "demi-Gods"— used to deference and respect, now thrown into a room with other men accustomed to the same treatment. Many were meeting for the first time after years of commitment to a similar cause. Others were meeting after years of contention. Vain, imperious George Mason of Virginia, one of the richest of the delegates, set eyes on Benjamin Franklin for the first time in May 1787, after more than two decades of furious competition with the crafty Pennsylvaman in the race to buy up and settle land in the West. Inevitably, the clash of personalities in Philadelphia would be as intense as the advocacy of ideas or ideals.

  Although there was ample contrast in Philadelphia among individual delegates, the greatest disparity lay between the states themselves, and the deepest gulf was between South and North, slave states and free.

  While only five of the thirteen states were primarily slaveholding,3 each of the five—particularly Virginia and South Carolina—was ruled by a genteel, landed aristocracy whose members had more in common with the British upper classes they had just kicked out than with their new countrymen in the North. They were Church of England, owned sprawling estates, ruled tenant farmers in addition to slaves, wore powdered wigs, imported fine silks in the latest fashions, held fancy balls, and provided their children with a classical education, often in Europe. Although they loved wealth, they thought there was something unseemly about handling money, and as a result, many were in debt.

  Northerners, on the other hand, were often flinty, parsimonious, hardheaded merchants or capitalists who dressed in dark wool, had few servants, no tenants, and only borrowed money to expand their businesses. Some were presbyters who didn't dance, carouse, or stay up late. They also loved wealth, but found nothing demeaning about counting their money, often repeatedly.

  To add to the challenge, these delegates had no model on which to base their efforts—no document of this kind had ever been drafted before. In the drive to find a workable formula, they drew from the Greeks, French philosophes, and English reformers, but mostly they relied on their own sense of practicality. They might not have known exactly what they wanted the new government to look like, but they certainly knew what they did not want it to look like, although even here different delegates held different opinions as to what they most wished to avoid.

  Sometimes they sought resolution through debate on the floor of the convention; other times by assigning committees to draft compromise agreements in secret; and still others by meeting at night in small groups in the back rooms of Philadelphia's inns and taverns. The debates themselves played out with high tension—grand declarations interspersed with sarcasm, spite, and invective, the future of the embryonic democracy teetering on every petty squabble. Delegates regularly threatened to walk out if a favored proposal were voted down or a repugnant one agreed to. Some did leave, becoming fierce opponents of ratification in their home states.

  Aware of what was at stake, the delegates knew they had to speak candidly, expressing sentiments they dared not voice in public. In order that none would be held accountable for anything said in the chamber, the proceedings remained strictly secret, conducted behind locked doors that were guarded at all times by armed sentries. To bar eavesdropping, the windows of the State House were kept bolted, intensifying the already oppressive heat and humidity of a Philadelphia summer where, at one point, the temperature reached ninety-six degrees.

  The public was meant to be unaware of the proceedings not just as they occurred, but in perpetuity. The official minutes were kept intentionally sketchy, little more than a journal of motions and the ensuing votes, and even that cursory record was not released to the public for decades afterward.* The most copious notes were kept by James Madison and these would not be published until 1840. To Madison (and, in the early weeks, Robert Yates of New York) we owe almost all of our knowledge as to what went on behind those locked doors.

  That a Constitution was actually wrought from such secrecy and disarray has been called "a miracle," and, given the tone of the proceedings, that description may not be far off.4 The delegates disagreed on almost everything. Should the legislature be one house or two? Should the president be elected by the people, by the congress, or by the state legislatures? Should new states be admitted as equals or subordinates? Should there be a standing army? What were to be the powers of the court system? Were the states to be subordinate to the federal government or the other way around? Should the new government assume the massive debt from the Revolution? How should commerce be regulated? What constituted treason? Each of these questions had different advocates proposing different resolutions, all with equal ardor.

  But of all the issues that would arise in Philadelphia, the one that evoked the most passion, the one that left the least possibility of compromise, the one that would most pit morality against pragmatism, was the question of slavery. To a significant and disquieting degree, America's most sacred document was molded and shaped by the most notorious institution in its history.

  For the longest time, however, almost nobody thought so. Throughout the nineteenth and most of the twentieth centuries, one prominent historian after another examined the record and insisted that the economics of slavery was a minor factor in Philadelphia. The battle was fought between big states and small states, insisted some, while others saw the principal conflict as between those who owned real property and those whose wealth was largely on paper. For many, the debates were simply one of history's great intellectual exercises, a four-month colloquium on government and political philosophy conducted by a group of latter-day Athenians.

  The United States Constitution is arguably the most analyzed document in the history of government, but it is not difficult to understand why slavery has so regularly been consigned to the shadows. "The peculiar institution"—an equally peculiar phrase—was an unpleasant and repugnant topic, a stain on America's honor, and, therefore, the less of a r
ole it played in defining the nation's identity the better. Even in the debates, so repellent was slavery to northerners—and so embarrassing to southerners—that when the subject came up, the delegates often danced around it, employing euphemisms, such as "this unique species of property" or "this unhappy class," as stand-ms for the more disagreeable "slaves." Thus, the words "slave" and "slavery" never appeared in the original Constitution, nor would they until ninety-one years later when the thirteenth amendment abolished the practice forever.5

  With all that, any fair reading of the record makes it difficult to deny that the sectional division, with slavery as its pivot, was the most crucial. Many of the delegates certainly saw things precisely that way. James Madison, for example, at one point observed that he "always conceived that the difference of interest in the U. States lay not between the large & small, but the N. & Southn States," and added that "it was pretty well understood that the institution of slavery & its consequences formed the line of discrimination."6

  Almost from the day the convention adjourned on September 17,1787, theorizing began as to what the delegates intended to say and the underlying meanings of the document they had produced. Theorizing was necessary since there were only fifty-five men in the entire nation who knew what had transpired inside the State House. Even among these fifty-five, only a handful could offer firsthand commentary on the full course of the proceedings.

  In the months following the convention, the debate as to intent was particularly furious, since the outcome—as in South Carolina—would determine whether or not the necessary nine states would ratify. During the winter of 1787 and through 1788, analysis sprang from everywhere. Meetings and rallies abounded. Printers lined their pocketbooks as newspapers took sides, and pamphlets and broadsides were issued in every state and major city. That no one could know for sure in those early days what the delegates really had in mind—or even had said—did nothing to stop those in favor and those opposed from issuing definitive judgments as to the intent of the framers and its effect on the nation.

  James Madison

  Some of the tracts supporting the new Constitution, like the Federalist, penned by two men who were present at the convention (Madison and Alexander Hamilton, although the latter was absent for almost two months) and one who was not (John Jay), have become an integral part of our national heritage.

  Others, equally profound, pointing up the flaws and dangers of the plan, such as Luther Martin's Genuine Information and a series of sixteen incisive, elegantly rendered essays published in the New York Journal by "Brutus" (identity still unknown, although it is suspected to have been Robert Yates), are now only touched on in graduate school seminars.7

  In the more than two centuries since the Philadelphia convention, interpretations of the Constitution have changed, sometimes radically, and the manner in which Americans have viewed the document is to a great extent a parallel of the manner in which the nation has viewed both itself and the role of slavery in its history.

  The Constitution exists as both a legal and a political document. Its legal role was largely defined by two landmark rulings of John Marshall's Supreme Court. The first, Marbury v. Madison in 1803, established the right of the Court to rule on the constitutionality of acts of Congress; the second, McCulloch vs. Maryland, sixteen years later—with Luther Martin representing Maryland—established once and for all the preeminence of the federal government over the states. (Martin and Maryland lost.) Each of these rulings was justified as an expression of separation of powers and each represented a principle that many of those fifty-five delegates in Philadelphia would have found abhorrent. Ever since the Marshall Court, justices have been interpreting and reinterpreting the Constitution, one Court often taking a view diametrically opposed to that of the previous one.

  As a political treatise, the Constitution has been no more clear or straightforward in its interpretation. For the first fifty years after its ratification, the debate became oddly quiescent, America more or less accepting the Constitution on what seemed to be face value. The first real clause-by-clause critical appraisal of the Constitution emanated from an unlikely corner of American society and was ignited by an equally unlikely spark.

  Madison died in 1836. Four years later, a three-volume edition of his papers was published, the contents of which he had selected and edited personally. Included were his notes from the Philadelphia convention. As a result, in 1840, Americans finally got a detailed peek into the proceedings. The published version contained omissions and corrections—Madison had revised the notes as an old man—but, by and large, was accepted as an accurate transcript.

  Poring over the newly released material, abolitionists were vitriolic in their denunciations. In 1843, William Lloyd Garrison called the Constitution a "covenant with death and an agreement with hell," and proposed that the Northern states secede from the Union. While abolitionism was never more than a fringe movement in America, one abolitionist, George Bancroft, was to provide a bridge from the fiery rhetoric of the Garnsomans to mainstream history.

  Born in 1800, Bancroft lived through virtually the entire nineteenth century, and he worked until almost the day of his death in 1891. His father was the first president of the American Unitarian Association, and throughout his life Bancroft remained devoted to the Unitarian principles of individual liberty, personal responsibility, progressive education, and social reform. Also, like most Unitarians, Bancroft saw slavery not only as a moral blight, but as a practical one, sapping the vigor and spirit of innovation from a democratic society.

  A remarkably prolific writer, Bancroft produced thousands upon thousands of pages over the course of his long life.8 In the late 1820s, he began his most famous work and for five decades toiled on what was ultimately to become a ten-volume history of the United States. Then,, in 1882, he completed the two-volume History of the Formation of the Constitution of the United States of America.

  Bancroft was cognizant of slavery, certainly—he spent more time on the question than many modern historians—but his Unitarian optimism got the better of him. Repudiating Garrison, he saw the institution "in a transient form" in 1787. "In the division between northern and southern states," he added, "the criterion was, whether a state retained the power and the will by its inward energy to extricate itself from slavery."9 The seven northernmost states, in Bancroft's rather rosy view—including his beloved New England— were in the final stages of doing so. Even the four states just to the south, Delaware, Virginia, Maryland, and North Carolina, he felt, were ruled by closet abolitionists, men who hated slavery but were tragically embroiled in the practice by necessity. Only South Carolina and Georgia actually made a continuation of slavery a quid pro quo of union.

  That slavery had been an evil forced on the South matched the public statements of a number of Southern delegates to the convention—George Mason had put forth this argument regularly and forcefully—and helped nineteenth- and early-twentieth-century readers square slavery with their otherwise exalted image of the framers. "As long as patriotism remained the principal ingredient of American historical writing, the constitutional convention was regarded as an assemblage of the gods," wrote Gordon Wood.10 Then, in the early twentieth century, two men produced groundbreaking works: The first marked the end of the romanticized Bancroft era and the second signaled the beginning of quite another.

  Max Farrand, a professor of history at Yale, was considered one of the most influential historians of his day. He had majored in biology at Princeton, but switched to history after taking a course with Woodrow Wilson. Among his best friends at the school was Booth Tarkmgton, whose sentimental novels would eventually make him the most popular writer in America. In 1913, Far-rand produced perhaps the most sentimental treatment of the convention of all, a short work called The Framing of the Constitution.

  As might be expected in a celebration of virtue, Farrand did not give slavery much of a role. "In 1787," he wrote, "slavery was not the important question, it might be said that i
t was not the moral question that it later became. The proceedings of the federal Convention did not become known until the slavery question had grown into the paramount issue of the day. Men generally were eager to know what the framers of the Constitution had said and done upon this all-absorbing topic. This led to an over-emphasis of the slavery question at the Convention that has persisted until the present day."11

  Farrand's contribution, however, lay not in original scholarship, but in what has since been called the "model of historical editing."12. Combining notes of the delegates with subsequent letters, diaries, pamphlets, memoirs, and speeches in the ratifying conventions, Farrand in 1911 published a remarkably complete and scrupulously annotated three-volume work, Records of the Federal Convention. (A fourth volume was added in 1937.)13

  Records made the same basic materials readily available to all. There would be no subsequent discovery that would suddenly change everything—no lost notes of one of the delegates, no forgotten archive, no shoebox full of records found in someone's attic. After Farrand, constitutional interpretation became almost entirely subjective, depending only on which of the available sources historians chose to give the most weight, where they decided to shine the light.14

  Another book published in 1913 shone its light where none had before, and constitutional interpretation has not been the same since. That year, an Indiana-born, Oxford-trained, radical-socialist history professor at Columbia University named Charles Beard published An Economic Interpretation of the Constitution of the United States. In contrast to the optimism of Bancroft and the romanticism of Farrand, Beard advanced the thesis that the Constitution was forged entirely by men concerned not with philosophy or ideology, but only with self-serving economic motives. Beard divided the delegates into those who owned real property—largely debtors—and those whose wealth was in paper or securities, a category he called "personalty"—largely creditors. Working from admittedly incomplete and sketchy data, Beard concluded that those who supported the Constitution did so because the new government would guarantee their wealth and the payment of debts owed to them, while those opposed wanted to stay with the more impotent and forgiving Articles of Confederation. Although Beard was a Quaker, a group that had always ferociously (although nonviolently) opposed slavery, he had little to say on the subject. In fact, Beard seemed confused as to whether to classify slaves as property or personalty.