Dark Bargain

by Lawrence Goldstone

  The next year, another land ordinance was passed, this one laying the groundwork for settlement. Surveys would be conducted of any potential settlement area and the land would be divided into townships, six miles square, with a grid laid out at one-mile intervals on each side. Of the thirty-six resulting subsections, two were to be reserved "for the maintenance of public schools." Prices were set at $1 per acre.28

  Northerners, led by Rufus King, tried to reinstate the slavery provision, making the date of prohibition immediate instead of waiting until 1800. As a sop to the slaveholders, he also inserted a clause requiring the authorities in any free state to return any escaped slave upon petition of the authorities, an extension of a similar clause in the Articles of Confederation.

  That year, a young Virginia congressman named James Monroe decided to travel to the Ohio Territory to see the region for himself. He returned to Congress in December 1785, convinced that the plan of division in the Ordinance of 1784 was flawed. The territory north of the Ohio, vast as it was, should, he thought, yield no more than a maximum of five states. His call was soon echoed by another Virginian, William Grayson, who drew up a plan for those five states—now Ohio, Indiana, Illinois, Michigan, and Wisconsin—that is almost identical to the eventual boundaries. By early 1786, when Grayson submitted his plan, many believed that the territories south of the Ohio would yield as many as ten states. Under the Articles of Confederation, with in a couple of decades the South could thus have dominated the one-state-one-vote Congress.

  But Grayson's plan was unacceptable to congressmen from the North, who could count as well as anyone. They would not approve a plan that would add two slave states for every free state in a legislature where every state had an equal vote.

  The situation in Philadelphia was different, however. Only proportional representation had been agreed to. Under such a system, the number of states admitted did not matter; the only thing that counted was population. Of the northern delegates, only Gouverneur Morris, who had been warning of a flood of admissions of new states for weeks, seemed to understand that some by-state formula would have to be incorporated into any acceptable document. He regularly cautioned his northern brethren not to allow an unlimited number of new states to enter the union as equals with the current thirteen.

  This became another slave-state/free-state issue as southern delegates were equally insistent that new states enter without restriction. Mason, for example, at the height of the debate on apportionment, stated, "Strong objections had been drawn from the danger to the Atlantic interests from new Western States . . . If the Western States are to be admitted into the Union, as they arise, they must, he wd. repeat, be treated as equals, and subjected to no degrading discriminations." Randolph added, "If a fair representation of the people be not secured, the injustice of the Govt. will shake it to its foundations . . . Congs. have pledged the public faith to New States, that they shall be admitted on equal terms."29

  "Equal terms," to the Virginians, obviously meant as slave states, an objective that Article VI unintentionally advanced. By enacting a prohibition of slavery north of the Ohio, the ordinance created a tacit acceptance of the institution south of the Ohio. "The South seemed reconciled to the Northwest Ordinance since it implied an open door to slavery in its own adjacent territories, where the institution had already taken root."30

  Manasseh Cutler became the wild card in these maneuverings. Just what he told to whom in his intrigues to obtain a favorable deal for the Ohio Company of Associates remains a mystery. But that he engaged in intrigues there can be no doubt. In those early morning hours of July 13, he certainly tipped Gerry and King that the Northwest territories would be restricted to five states, and probably that an antislavery provision might be inserted as well.

  As Cutler returned to New York on the morning of Monday, July 16, the convention, to open the session, approved an equality of votes in the second house by a 5-4 vote, with Massachusetts divided. Delaware, New Jersey, Maryland, and Connecticut voted in favor. Virginia, South Carolina, and Georgia, each of which would have benefited if both houses were apportioned by population, voted against, as did Pennsylvania, but North Carolina unaccountably voted in favor. Gerry and King, privy to Cutler's plan, voted on different sides of the issue, Gerry in favor and King, long opposed to equal representation, against.

  After the acrimony of Saturday's debates, that this vote was taken on the opening of the session is surprising. Madison did not even indicate in his notes that anyone specifically called for a vote. In all likelihood, groups of delegates met extensively on Saturday evening and during the day on Sunday to hammer out a deal. What part, if any, Cutler's visit and the information that he imparted played in that deal will never be known.

  And the after-hours wrangling was not done. After his notes for the July 16 session, during which a number of delegates, including Randolph, expressed outrage at the vote on the Great Compromise, Madison later inserted an extended footnote, the only such entry in his journal.31 In it, he revealed that the next morning, Tuesday, July 17, before the day's session was to convene, "a number of the members from the larger States" met "by common agreement" to discuss what steps could be taken "in consequence of the vote in favor of an equal Representation in the 2d. branch." Of particular concern was "the apparent inflexibility of the smaller States on that point." Madison then noted that a number of delegates from small states attended as well, although he never indicated which states were represented or who specifically was present.

  "The time was wasted in vague conversation on the subject, without any specific proposition or agreement," Madison went on, because "the opinions of the members who disliked the equality of votes differed so much as to the importance of that point." Some of the large-state delegates at the meeting seemed to prefer dissolving the convention to acceding to equal representation in the second house, while "others seemed inclined to yield to the smaller States, and to concur in such an act however imperfect & exceptionable." The former group believed that as "no good government could be built" from a legislature in which one house voted by state and as "a division of the Convention into two opinions was unavoidable," that "the side comprising the principal States, and a majority of the people of America, should propose a scheme of Govt. to the States," and another plan should be proposed by those who wish compromise with the small states.

  Madison then concluded cryptically, "It is probable that the result of this consultation satisfied the smaller States that they had nothing to apprehend from a union of the larger, in any plan whatever agst. the equality of votes in the 2d. branch."

  Madison seems to have suggested that the small-state delegates were mollified only because some of the large-state delegates preferred to split into two countries, which is odd, as it is unclear why the small states needed to be mollified at all. They were the ones who had just triumphed. The delegates from the large states who preferred to split the nation than accede to the compromise were the ones in need of persuasion. Madison never expanded on the de tails of this meeting, nor ever explained precisely what he meant.32

  Whatever the explanation, an hour or so later when the delegates took their seats for the opening of the July 17 session, Gouverneur Morris made a motion to reconsider the entire issue and it was not seconded. Both the three-fifths clause and the Great Compromise had become part of the formula for the legislative branch of the United States.

  *This Ohio Company was completely unrelated to George Mason's Ohio Company of Virginia.

  13. NOT A KING, BUT WHAT?

  With the composition of Congress at least tentatively settled, the delegates moved on to the executive. How to make the transition from a king to a different sort of leader had been discussed since the opening sessions with even less agreement than on the legislature. Another committee of eleven had been appointed to consider the issue, and when its report was considered on the morning of July 17, nothing had been settled. Length of term, pay, powers, how the executive was to be chosen, wh
ether the executive could be reelected, even whether or not it would be a single person—all remained open questions.

  The last issue was settled first, when the convention agreed without dissent that the executive would be a single person. This was a mild defeat for George Mason, who had floated the idea of a triumvirate, with one member each from the North, Upper South, and Lower South, although Mason had been less than forceful in suggesting it and did not seem to really believe it would be adopted. From there the delegates moved on to how the executive would be chosen, the key issue since the method of election would determine whose interests the executive would represent. There were three basic alternatives—election directly by the people, by the state legislatures, or by Congress.

  Direct election would obviously mean that whatever states or sections of the nation held the greatest number of qualified citizens, rich or poor, would control the office.1 There was little sentiment for popular election—for all the talk of democracy, this was not a group that had a good deal of trust in the common man. The committee of eleven had specifically rejected popular election. No one, however, opposed popular election more vehemently than the southerners. Although the southern states had obtained legislative apportionment for three-fifths of its slaves, that formula would not be applied in a popular vote for the executive. A man who owned a slave would not get 1.6 votes, nor would 60 percent of the slaves be allowed to line up at the ballot box. If election were by popular vote, presidents (except perhaps Washington, whom just about everyone assumed would hold the office initially) would most certainly come from the North until such time as the South could secure a majority of the white population.

  Despite the lack of sentiment for direct election, Gouverneur Morris, always happy to thrust a thumb in the eye of slaveowners, asserted that the executive "ought to be elected by the people at large, by the freeholders of the Country . . . If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation. If the Legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment."2

  Sherman demurred, using the small-state argument. Freeholders, he insisted, "will generally vote for some man in their own State, and the largest State will have the best chance for the appointment." When Wilson supported Morris, Charles Pinckney said that he "did not expect this question would again have been brought forward; An Election by the people being liable to the most obvious & striking objections. They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points." Pinckney favored election by Congress. "The Natl. Legislature being most immediately interested in the laws made by themselves, will be most attentive to the choice of a fit man to carry them properly into execution."

  Morris once again spoke in favor of popular election, then Mason, who just weeks earlier had issued a passionate plea for direct election for the legislature, retorted that "It would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would to refer a trial of colours to a blind man."3

  After Wilson supported Morris once more, Williamson repeated Sherman's objection, but noted, "The people will be sure to vote for some man in their own State, and the largest State will be sure to succeed. This will not be Virga. however. Her slaves will have no suffrage."

  Morris's motion failed. Only Pennsylvania, coincidentally the state with the largest free white population, voted aye. Luther Martin then moved that the executive be chosen by electors appointed by the various state legislators. Martin clearly intended that each state would be allowed to appoint the same number of electors but his motion failed, with only Maryland and Delaware voting in favor. At this point, the convention unanimously agreed that the executive would be chosen by the national legislature.*

  After that, the delegates tried to come to some consensus as to the term of the executive and whether he was eligible for reelection. A motion was made to have an executive serve "during good behavior,4 but eventually a seven-year term was agreed to and consideration of reelection was put off for an unspecified period.

  The essential problem with delineating a description of the executive was that there was so little agreement on anything specific, no base from which to proceed. Those who thought that a seven-year term was too long insisted on eliminating a right of reelection. Others thought that the possibility of reelection was vital to ensuring good behavior, but were split on how long the first term should be. Still others believed that a president should serve indefinitely unless he was found to have misused the office. A similar range of opinion was voiced over whether the executive could veto acts of the legislature and what the limits on veto power could be.5

  Two days after consensus had been attained on a single executive with a seven-year term and no eligibility for reelection, the convention decided to reexamine the entire issue. Once again, after much bickering, other than agreeing that the executive should be one person and settling on seven years as a term, the delegates could agree on nothing.

  At one point, Ellsworth reintroduced Luther Martin's notion of electors, this time apportioning electors by population, between one and three per state.6 Conspicuously absent was whether or not slaves would be counted in this formula and Rutledge, taking no chances, immediately objected and insisted that only the "national legislature," where slave apportionment was assured, could choose the executive. Gerry picked up the notion of electors, proposing twenty-five in total, again between one and three per state, and that they be appointed by state legislatures.7

  The motion on appointment by electors passed, with only the three southernmost states voting nay. A motion that the electors be appointed by state legislatures also passed by an impressive margin, but when they came to decide how many electors should come from each individual state, and how that ratio should be chosen, the delegates unanimously voted to put the question off. With one issue partially settled, they went right back to length of term, shortening seven years to six.

  Bickering about the executive continued for another week, the delegates achieving little more than placeholder compromises. Still, compared with the mire of early July, this was definite progress.8

  Interspersed with deliberations on the executive were debates on the nature of the judicial branch and a sprinkling of other issues, one of which revealed how the delegates often camouflaged questions of slavery in seemingly general terms. On July 18, the convention took up the resolution, "That a Republican Constitution & its. Existing laws ought to be guarantied to each State by the U. States." After Gouverneur Morris voiced an objection to guaranteeing the constitution of Rhode Island, James Wilson assured him that "the object is merely to secure the States agst. Dangerous commotions, insurrections and rebellions."9

  This was one provision that slaveholders did not have to persuade northerners to adopt. Although the North had seen a number of incipient insurgencies before 1786, southerners were most fearful of insurrection by slaves. Northerners had been unanimous in their refusal to send troops or militia to aid in putting down a slave uprising. But suddenly, eight months before, northerners realized that they too might be in need of support to put down a rebellion and a bond of understanding developed between northern capitalists and southern planters.

  Not surprisingly, a Massachusetts delegate pushed hardest for this. Without mentioning the name "Shays," Nathaniel Gorham "thought it strange that a Rebellion should be known to exist in the Empire, and the Genl. Govt. shd. Be restrained from interposing to subdue it. At this rate an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partisans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole & the Genl. Govt. be compelled to remain an inactive witness of its own destruc
tion." Tobacco farmers Daniel Carroll and George Mason also weighed in, Carroll observing, "Some such provision is essential. Every State ought to wish for it," and Mason adding, "If the Genl. Govt. should have no right to suppress rebellions agst. Particular States, it will be in a bad situation indeed."

  Even Luther Martin, who generally balked at every clause favorable to slaveholders, had no problem here. Although he was "for leaving the States to suppress Rebellions themselves," he later wrote in Genuine Information that his objection was based not on a hesitance to employ the central government in quelling insurrections, but rather on an unwillingness to place a state's entire militia under national control.

  *Election by Congress rather than by state legislatures had great significance in a federal system. Under the former, the executive would be equivalent to a prime minister, dependent on the legislative branch for his office, while under the latter, the executive would gain the office independent of the legislative branch, thus creating separation of powers.

  14. DETAILS

  Although the delegates had reached tentative settlement of some major issues, as July drew to a close, the debates were spinning in ever-decreasing orbits.1 In an attempt to move the discussions forward, on July 26, the delegates decided to appoint a five-member committee to both revise and amend the agreed-upon resolutions and to flesh out specifics—in other words, to produce a full working draft of a new constitution. The Committee of Detail, as it was called, was instructed not only to use the convention's product to date, but also to draw on Paterson's New Jersey Plan and Charles Pinckney's plan, extracting or adapting whatever it felt was appropriate to the new government. The convention specified no other restrictions, effectively allowing these five men to set the guidelines for any further debate, including or omitting whatever specific powers or prohibitions that they wished.