Dark Bargain

by Lawrence Goldstone

  Of the fifteen articles in the plan, the first simply set out the goals of "common defence, security of liberty and general welfare."1 The second article, the most important and the most significant in departure from the Articles, set the rule for apportionment, reading "that the rights of suffrage in the National Legislature ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants, as the one or the other rule may seem best in different cases." So, while "free persons" would explicitly exclude slaves from apportionment, "quotas of contribution"2 would implicitly count slaves in full, thereby setting the boundaries for the debates to come.3

  Also on May 29, not to be outdone, Charles Pinckney presented a plan of his own, which was evidently quite a bit more detailed than the Virginia Plan, agreeing in principle with the major points and containing, if we are to believe its author, many provisions that were later adopted by the convention. Unlike Randolph, Pinckney never got to read his plan into the record, or even to have it inserted later. It seemed, in fact, to have been given short shrift by the delegates, perhaps as a result of the outspoken, impossibly brash Pinckney's unfortunate decision to pretend he was only twenty-four.4

  For the next month, the delegates launched into a series of debates that were called "one of the most brilliant displays of learning in political theory ever shown in a deliberative assembly."5 These June debates, more than any other factor, garnered the framers the well-deserved reputation of being perhaps the most sophisticated political philosophers of the day. This was certainly the high-water mark of Madison's efforts.6

  Because the delegates were bound neither by tradition (there was none), nor by loyalty to their leaders (they were the leaders), and not even by a social or cultural imperative (a recent work claims that their very provincialism allowed their creativity to blossom7 ), the range and depth of the discussions was astonishing. Practical politics mixed with theory in a manner never heard be fore. There has likely been no other four-week period in history when the nature of power, of a citizen's relation to government, of the search for the best means by which humankind might govern itself has been so carefully, exhaustively, and eloquently examined.

  Not every delegate was a Pericles, certainly, and not all the debates were memorable. Every delegate was entitled to speak twice on a question, which often led to extensive haggling over the definition of a word, or the parsing of a clause, or the insertion of some piece of minutia. The issue of remuneration of the executive and legislators, for example—whether they should be paid, how much, and by whom—took the better part of three days, with the issue debated largely on philosophical rather than practical grounds. Still, when the delegates focused on meatier issues, the debates soared.

  If the June debates were notable for their radiance, they were equally notable for their civility. Provisions that one would think would cause the most bitter and divisive argument were discussed only in the most lofty and sanitized fashion, and some of the most controversial ideas were accepted without discussion into the plan. No one sniped, no one was sarcastic, no one threatened to walk out. There was passion in the content of the speeches but, by and large, delegates behaved with the utmost graciousness and deference to their opponents. Hypocrisies that would later be held up and skewered were tolerated with equanimity in those early weeks.8

  The reason that these early debates could be conducted with such civility is that they were almost entirely devoted to where power should reside rather than to where power would reside. This distinction was both the greatest strength and the greatest weakness of this phase of the convention—strength because it allowed the delegates to use their education, intellects, and experiences to range into the ether of political theory; weakness because almost nothing was resolved.

  Big states, small states; debtors, creditors; slaveholders, merchants— representatives of every faction present maneuvered to set guidelines for further discussion, to create boundaries with in which the new government would fall. Every delegate seemed to know that nothing said in June bound them in any way to a final decision later on. Every question agreed to in principle in that first month of debate reappeared, often biliously, later in the proceedings. When specifics finally began to intrude into the debates, especially the practical questions of how power was to be distributed, when actual control of the government was at stake, harmony proved harder to come by.

  Slavery was dealt with in the same collegial manner as every other contentious issue. The day after Randolph read Madison's Virginia Plan into the record, Madison himself suggested a significant change. "Observing that the words 'or to the number of free inhabitants,' might occasion debates which would divert the Committee from the general question whether the principle of representation should be changed, [he] moved that they might be struck out."9 That would have left "quotas of contribution," as the only means of apportioning representation, which meant a full counting of slaves.

  Rufus King immediately—but civilly—pointed out that the North had no intention of counting slaves in full, and Madison retreated, admitting the "propriety" of King's observation, simply noting "that some better rule ought to be found." Hamilton then went the other way and moved that "quotas of contribution" be struck out, leaving "free inhabitants" as the only standard of apportionment. That would not do either, and the initial skirmish ended when a motion by Randolph and Madison to postpone the question was agreed to.10

  There were other hints of the acerbic mood to come. On June 11, Roger Sherman opened the proceedings with a proposal that "the proportion of suffrage in the 1st branch [of the legislature] should be according to the respective numbers of free inhabitants; and that in the second branch or Senate, each State should have one vote and no more."11* This compromise, at least structurally, was how the large state/small state divide would be closed, and Sherman was certainly addressing those delegates who did not want to give up the equal vote that each state enjoyed under the Articles. It did nothing to resolve the dispute over distribution of seats in the lower house, since Sherman tried to end-run the question of counting slaves by choosing the more restrictive pole of the Virginia Plan, as Hamilton had done to rebut Madison on May 30.

  But no one was going to end-run Rutledge. He immediately made a proposal of his own, returning to Madison's suggestion that "the proportion of suffrage in the 1st branch should be according to quotas of contribution. The justice of this rule could not be contested." Rutledge's fellow South Carolinian Pierce Butler, the brocaded aristocrat, immediately agreed, "adding that money was power; and that the States ought to have weight in the Govt.—in proportion to their wealth."

  The setting of the extremes by Madison and Hamilton on May 30, and then by Sherman and Rutledge two weeks later, makes clear that the debates over how slaves would figure in apportionment to the legislature had little to do with a "compromise over taxation and representation as historians have traditionally claimed," and had everything to do with whether slaves would be counted in full, not counted at all, or counted in some compromise formula yet to be determined.12 That Sherman was on the other side of the issue from Rutledge on slavery would stand in contrast to a far more accommodating relationship later on.

  The skirmish lines on representation having been reestablished with no give perceived on either side, Rufus King and James Wilson immediately moved to once more postpone discussion of the issue, stating simply that "the right of suffrage in the first branch of [the] national Legislature ought not to be according to the rule established in the Articles of Confederation, but according to some equitable ratio of representation." Lack of agreement on the meaning of the term equitable was lost on no one.

  James Wilson tried further to deflect the issue by then taking the floor on Benjamin Franklin's behalf. No longer able to give extended speeches, Franklin had taken to penning monographs, which Wilson then read to the convention. The readings were inevitably lengthy and, by the time Wilson was done, the other delegates had usually forgotten what they had been ta
lking about. After this reading, which was a vague, rambling discourse on sovereignty that simply restated that representation should be according to population or wealth, the delegates gratefully passed Wilson and King's motion to suspend discussion on the nuts and bolts of apportionment by a vote of 7-3.*

  But not everyone agreed to allow the debate to once again simply drift away. Rutledge, the dogged advocate, seconded by Butler, proposed "to add to the words 'equitable ratio of representation' at the end of the motion just agreed to, the words 'according to the quotas of contribution.' "13

  Rutledge's insistence on continuing the debate on including slaves in the calculation for apportionment threatened the entire spirit of camaraderie. Wilson countered and Charles Pinckney* seconded with a proposal to add instead, "in proportion to the whole number of white & other free Citizens & inhabitants of every age sex & condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes, in each State."

  Although this was the precise wording that Congress had used in revising the formula for the apportionment of taxes in 1783—which Wilson duly pointed out—this was the first time that anyone had suggested the same formula for representation. Until then, the issue had been moot, because voting was only by state.

  Although himself known for opposing slavery, Wilson may simply have been reaching for middle ground, and at that moment came upon the three-fifths formula as something that might be acceptable to everyone.14 On the other hand, it is equally possible that Wilson did not conveniently pull three-fifths of a rabbit out of his hat, but that this was a compromise that had already been discussed privately. The divisions over slavery had been clearly established and neither side would ever be able to claim total victory. Quite possibly, the two attorneys, Wilson and his housemate Rutledge, had agreed over dinner or brandies one evening that three-fifths would make an excellent plea bargain for slave apportionment.15

  The eagerness with which most of the delegates embraced a solution to the convention's most intractable division was palpable, but Elbridge Gerry was not ready to concede. "Blacks are property, and are used to the southward as horses and cattle to the northward," he said, "and why should their representation be increased to the southward on account of the number of slaves, than horses or oxen to the north?"16 Gerry was brushed aside, however, and the motion was agreed to by a 9-2 vote, only New Jersey and Delaware—two states that opposed any apportionment by population—voting against. And so, James Wilson, the democrat from Pennsylvania, introduced the three-fifths rule into the debates that would frame the most sacred document in American history.

  For two weeks, the Virginia Plan had been the sole subject of the debate. The "small state" group had been outmaneuvered, reduced to holding actions against Madison, since its delegates had no plan of their own. That changed on June 15, when William Paterson of New Jersey presented a detailed response to Madison and the nationalists.17

  Under what came to be known as the New Jersey Plan—or the Paterson Plan, after its author—Paterson pointedly retained the by-state voting scheme of the Articles but addressed, much more specifically than had Madison, the most egregious defects in the existing system. Under this plan, Congress would have the power to raise revenue, to tax imports, and to regulate commerce. One revenue-raising measure was the old notion of a state-by-state tax, proportioned according to population, in which Paterson included the "three fifths of all other persons" that had been the theoretical hook on which Wilson had hung his legislative apportionment formula four days earlier. Legislative apportionment had no place in Paterson's plan, obviously, but a second northerner known to oppose slavery had affirmed that a slave was worth three-fifths of a white person.

  Little attention was paid to the three-fifths clause at the time; it seemed a useful compromise and there were bigger issues on the table. To the Paterson camp, the proceedings had been hijacked, and amounted to little more than what Luther Martin later called a "conspiracy" to violate the congressional mandate authorizing the convention. To Madison and the Virginia Plan adherents, the obsession of some members of the northern small states to hang on to a failed system of representation was leading to the inevitable collapse of the United States into three or four or thirteen sectional fragments, an outcome that must be prevented at all costs. Deadlock seemed inevitable until Alexander Hamilton helped everyone put the issue into focus.

  Three days after the submission of the New Jersey Plan, Hamilton, declaring that he was "obliged . . . to declare himself unfriendly to both plans," weighed in with one of his own, which was, not surprisingly, as extreme in investing power in a central government as was Paterson's in its defense of the status quo. It was a dazzling speech, filled with historical parallels and inexorable logic. Taking the British model as his starting point, monarchy and all, "the best model the world ever produced," Hamilton spoke for virtually the entire session, and with each sentence he disemboweled the sovereignty of individual states further, at one point suggesting that the state governments be abolished entirely.18 According to his fellow New Yorker Robert Yates, he said, "I have well considered the subject, and am convinced that no amendment of the confederation can answer the purpose of a good government, so long as State sovereignties do, in any shape, exist."19*

  James Wilson

  Had Hamilton's plan received serious consideration, the small-state contingent might as well have packed up and gone home. Even many of the delegates who favored strengthening the central government sat stunned. This was nationalism run amok.

  Suddenly, the Virginia Plan itself looked like a compromise and, for many of the delegates, some fast reconsideration of alternatives was in order. One commentator wrote, "If there was one evening on which a historian would have liked to eavesdrop on the delegates' conversation, it was that of June 18."20

  The next morning, with the New Jersey Plan "at large before the Committee" and Hamilton's speech lurking in the background, Madison responded. He too spoke for virtually the entire session and he too gave a dazzling speech filled with historical parallels and inexorable logic. When he was done, a vote was taken on a motion by Rufus King to table the New Jersey Plan and use the Virginia Plan alone as the sole basis for discussion, Hamilton's plan being conveniently ignored. The delegates voted 7-3 in favor, with New York, New Jersey, and Delaware against, and Maryland divided. The New Jersey Plan was dead, and with it all hopes of a simple reform of the Articles of Confederation. The convention would then move to achieve that to which Madison and the nationalists had so fervently aspired—a system of self-rule built from a new philosophy, without preconception, the like of which the world had never seen.21

  For the next week, as the delegates refined and revised the Virginia Plan, supporters of the New Jersey Plan saw their choices reduced to staying in Philadelphia and trying to limit the Virginia Plan's scope or walking out. The second choice would not have been mere spite. If the convention collapsed, they knew, the Articles would be retained in full, each state having an equal vote in Congress as before. Although some, such as Lansing and Yates of New York, did eventuallv leave, most stayed to see what concessions they might wring from the nationalists. Paterson and his comrades were not without power. Defeat of the New Jersey Plan, the nationalists knew, had achieved nothing—that the states' rights group would not prevail did not necessarily mean that the nationalists would. The most obvious and meaningful compromise the states' rights group sought was an agreement by the nationalists to apportion representation in the second house of the legislature by state.22

  The issues remained deceptively cosmetic for a time—an agreement to substitute "United States" for "national" so that the opening phrase would read "the Government of the United States ought to consist of a supreme legislative, Executive and Judiciary," and to drop the word "national" from "that the national Legislature ought to consist of two branches." Parts of two days were consumed with cementing the co
ncept of a bicameral legislature, and parts of two others confirming that the first house of the legislature would be elected according to some undecided formula by "the people," and not the state governments. Length of terms for the legislators in the first house was debated at length, as was pay. The second house of the legislature was also discussed. Only an hour or two was devoted to postulating that state legislatures should elect senators, but two days were devoted to arguing over the term of office.

  All this housekeeping merely delayed the great question of who would control the government. The big-states/small-states tug-of-war had been out in the open from the beginning, while the more significant—and more venomous— slave-states/free-states clash lurked in the wings and would soon supplant all other conflicts."23

  Hostilities began in earnest on June 27 with an infamous speech by Luther Martin.

  Martin, whose antipathy to central authority dwarfed Paterson's, spoke for the better part of two days. He alternately bored and infuriated his colleagues with references to Sweden, the Swiss confederation, England, France, ancient Greece., and the current situation, in no particular order, but always with volubility and fervor. Madison characterized the speech as "delivered with much diffuseness & considerable vehemence," and Yates wrote that "his arguments were too diffuse, and in many instances desultory . . . to trace him through the whole, or to methodize his ideas into a systematic or argumentative arrangement. "24