Slave Nation
Page 27
47. H. James Henderson, Party Politics in the Continental Congress (NY: McGraw Hill, 1974) 413
CHAPTER 10
DEADLOCK OVER SLAVERY IN THE CONSTITUTIONAL CONVENTION
1. See Chapter 8
2. Farrand, Framing of the Constitution, 7
3. Statuary, Shays’s Rebellion, 120–134
4. In addition, the Virginia Delegation included John Blair and James McClurg.
5. Proposals and amendments were made in committee of the whole, subject to the approval by the convention itself, thus not officially committing members until the final vote taken after a committee of detail had polished the language. The actual committee of detail was Gouverneur Morris of Pennsylvania. See Richard Brookhiser, Gentleman Revolutionary: Governeur Morris, the Rake Who Wrote the Constitution (New York: Free Press, 2003) 85–93. See Thornton Anderson, Creating the Constitution: The Convention of 1787 and the First Congress, 50–58 (University Park, PA: Pennsylvania State University Press, 1993)
6. In 1783, as a result of a compromise proposed by Madison, Congress had adopted the formula that each slave should be counted as three-fifths of a person in measuring the population for valuation purposes. JCC Vol. 24, 222-4. The negotiations leading to the formula were described by Madison in his notes of the Congress. JCC Vol. 25, 948-9. A committee had recommended that two slaves be rated as equal to one freeman for determining contributions by each state to the federal budget. In the haggling that followed:
Mr. Wolcott was for rating the slaves 4 to 3. Mr. Carrol as 4 to 1. Mr. Williamson wouldn’t play. He considered slaves “an encumbrance to society instead of increasing its ability to pay taxes.” Mr. Higginson as 4 to 3. Mr. Rutledge would go along with 2 to 1, but believed 3 to 1 was “a juster proportion.” Mr. Osgood could not go beyond 4 to 3
A vote was taken on rating them as 3 to 2, and it lost. Voting for it were NH, CN, NJ, PA, DE (5), against were MASS, MD, VA, NC, SC. RI was divided. The southern states plus Massachusetts refused to consider a slave as equal to 66 percent of a free man.
“After some further discussions on the report in which the necessity of some simple and practicable rule of apportionment came fully into view, Mr. Madison said that in order to give a proof of the sincerity of his professions of liberality, he would propose that slaves should be rated as 5 to 3. Mr. Rutledge seconded the motion. Mr. Wilson (PA) said he would sacrifice his opinion to this compromise. Mr. Lee (VA) was against changing the rule, but gave it as his opinion that 2 slaves were not equal to 1 freeman.” The vote was yes, NH, NJ, PA, MD, VA, NC, SC. No: RI, CN.
7. Farrand, Records, Vol. I, 35-36. The “diversion” of course would have involved an early consideration of not counting slaves to measure representation. For taxation purposes, the slave owners were against counting slaves because that would increase their taxes. The non-slave-holding states supported this approach because it would reduce theirs. The interests of slave states and non-slave states were reversed when applied to the question of representation. In that situation, the southern states would gain enhanced votes by counting slaves, even though slaves could not vote.
8. Ibid. 20, Resolution 2.
9. In the end, the state legislatures selected their senators until the twentieth century.
10. In the debates, the body we know as the House of Representatives was called the first or lower house, and the Senate was called the second house. For convenience, we use the names (House and Senate) later attached to these two bodies.
11. Farrand, Records, Vol. I, 193
12. Ibid. 201. See Wills, Negro President, 51–61 for a discussion of the origins and consequences of the three-fifths rule.
13. Farrand, Records, 193. Six against (MA, PA, VA, NC, SC, GA); five for (CN, NY, NJ, DE, MD). The only proposal then under consideration concerning the makeup of the Senate was that of Virginia, which would allow the House to elect the senators. If the slave states had the benefit of the threefifths rule in the House, that would enhance their weight in voting for senators. The resolution of these issues was reported to the Convention on June 13, Farrand, Records, Vol. I, 227-229. On June 14, Randolph and Patterson moved for a day’s adjournment so that the report could be further considered. Farrand, Records, Vol. I, 240. The outcome of the consideration was the Patterson plan presented the next day.
14. Farrand, Records, Vol. I, 242.
15. Ibid. 313
16. Ibid. 445-6
17. Ibid. 450–452. Isaacson, Benjamin Franklin, 445–60, eloquently describes Franklin’s role at the Constitutional Convention.
18. Isaacson, Benjamin Franklin, 451, 453 (Madison). The convention had no funds for prayer, and did not vote on Franklin’s proposal. See Bowen, Miracle at Philadelphia, 117–40 for a vivid description of the crucial nature of the debate during this period and the frustration level at the time.
19. Farrand, Records, Vol. I, 460-461
20. Ibid. 468–9. The reference to “this part of it” presumably refers to the states south of Pennsylvania. Ellsworth’s statement contained the germ of the idea which would grow quickly—dividing the nation “somewhere about” Pennsylvania. The Ohio River, it will be remembered, rises in Pittsburgh, from the conjunction of the Monongahela and the Allegheny. The Ohio River was the southern border of the northwest territory.
21. Ibid. 478
22. Ibid. 475
23. Ferling, Leap in the Dark, 281–3, describes them as members of the political elite. “No delegate resembled the activists…of twenty years before. No urban artisans or laborers…were in attendance. Nor had any small farmers…been appointed. Southern yeomen who possessed small farms but no slaves were noticeably absent as well, as were the inhabitants of rustic back country villages.” Of course women and blacks remained unrepresented.
24. Farrand, Records, Vol. I, 476. According to Yates, on June 29, Madison said, “If there was real danger, I would give the smaller states the defensive weapons—But there is none from that quarter. The great danger to our general government is the great southern and northern interests of the continent, being opposed to each other. Look to the votes in Congress, and most of them stand divided by the geography of the country, not according to the size of the states.” Madison’s notes are silent about such a comment on that date. Yates may have failed to understand the import of his speech of June 30, or just misdated it.
25. See Nash, Race and Revolution, 25–55, for an analysis which suggests that the North did not have to accede to the lower South’s demands to maintain slavery and the slave trade at the 1787 Convention.
26. Farrand, Records, Vol. I, 486
27. Farrand, Records, Vol. II, 9–10
28. Farrand. Records, Vol. I, 201
29. See H. James Henderson, Party Politics in the Continental Congress, (New York: McGraw-Hill Book Company, 1974) 383–429 discussing various proposals to separate the nation into two or three countries as the Continental Congress demonstrated its failure to address national problems in the post-war period. See also, Calfin C. Jillson, Constitution Making: Conflict and Consensus in the Federal Convention of 1787, 64–100 (Agathon Press Inc., 1988) illustrating how the regional differences were openly discussed around the question of representation.
30. Much of the important business of the Philadelphia Convention was done “offstage,” in social settings, so that even the diarist’s attempt to capture the debates would not identify the currents of views and opinions which circulated. Washington’s diary noted frequent dinners and teas with various delegates. Farrand, who compiled the records of the Convention, did not pay attention to such matters. “The social context in which the delegates moved…did not interest Farrand.” This “caused him to delete passages about Washington’s and other delegates’ recreations and amusements in Philadelphia.” Hutson, Supplement to Farrand, 1n1
31. Farrand, Records, Vol. I: May 30, Pinckney, 36; May 31, Pinckney and Rutledge, 53.
32. Ibid. 486
33. Under that plan, the Senate was a smaller body wh
ose members had a longer term, chosen by members of the House from nominees by the state legislature. The difference between the houses was only that the Senate would provide enhanced stability, and perhaps wisdom—another check on the risk of excesses of democracy. Banning, Sacred Fire,134–137
34. Farrand, Records, Vol. I, 488–9, proposals at 507–8
35. He had proposed that appropriation bills originate only in the House of Representatives. This proposal was included in some subsequent drafts, and a watered down version appears in Art. I Sec. 7 of the Constitution.
36. Jefferson’s draft territorial ordinance in 1784 proposed that new states come into the union on an “equal basis” with the original states. See Peter S. Onuf, Jefferson’s Empire: The Language of American Nationhood (Charlottesville: University of Virginia Press) 67.
37. Luther Martin (MD) reported that the committee established the following week to seek a solution to the small state–large state dispute discussed the likelihood that lightly populated states would increase in population more rapidly than developed ones, and “thereby enormously increase their influence in the national councils.” Farrand, Records, Vol. IV, 189
38. See Chapter 9 note 40
39. Robert G. Kennedy, Mr. Jefferson’s Lost Cause (Oxford University Press, 2003)11–16
40. Banning, American Sphinx, 68
41. See Chapter 9 note 8
42. Isaacson, Benjamin Franklin, 150–1, describes Franklin’s calculation of the growth rate of the colonies in 1751.
43. Farrand, Records, Vol. I, 509
44. Farrand, Framing of the Constitution, 27, 96–7
45. Farrand, Records, Vol. I, 511
46. Ibid.
47. Ibid.
48. Ibid. 514
49. Ibid. 515
50. Ibid.
51. Max Farrand, Framing of the Constitution, 110, whose volumes The Records of the Federal Convention provide the most information about the proceedings of the Constitutional Convention and are relied upon by virtually every scholar, was wrong when he minimized the role of slavery at the convention. “In 1787, slavery was not the important question; it might be said that it 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 naturally were eager to know what the framers of the Constitution had said and done upon this all-absorbing topic. This led to an overemphasis of the slavery question in the convention that has persisted to the present day. As a matter of fact, there was comparatively little said on the subject in the convention. Madison was one of the very few men who seemed to appreciate the real division of interests in this country.” Modern scholar Lance Banning, Sacred Fire, 549n48, agrees with Farrand. “With most recent students of the convention, I have concluded that slavery itself, although the subject of some bitter words, seldom generated serious, prolonged divisions at the meeting. Most northern delegates were unprepared to challenge the insistence of Georgia and the Carolinas that they would not concur in a unanimous recommendation unless their basic demands were met. The three-fifths formula, familiar from the old Confederation, got the meeting past a number of potential difficulties with relative ease; the old idea that there was an important three-fifths compromise is now universally rejected.” Historian Don E. Fehrenbacher, Dred Scott Case, 80–1 takes the same approach, while viewing the ordinance and the Constitution separately. Finkelman, “Slavery and the Constitutional Convention” 226–58, has viewed the Northwest Ordinance separately from the Constitutional Convention and has been critical of its draftsmanship because the slavery clause was neither specific enough nor well integrated with the rest of the Ordinance. See his “Slavery and Bondage” in “Empire of Liberty,” in Williams, Northwest Ordinance, 61–95. His analysis tends to confirm our thesis that the slavery clause was attached in haste because the situation at the Constitutional Convention in Philadelphia required both haste and secretiveness. Similarly, Mark D. Kaplanoff, “The Federal Convention and the Constitution,” in Jack P. Green and J. R. Pole, Eds., The Blackwell Encyclopedia of the American Revolution, (Cambridge: Blackwell, 1991) 457–70 at 463, says: “Certainly questions relating to slavery were among the most vexatious at the Convention, but the overall importance of slavery in the formation of the Constitution should not be overestimated.…The issue did not dominate the proceedings of the Convention nor intrude much into the text of the Constitution.” Rakove, National Politics, has no separate index category for slavery. His more recent contribution, Rakove, Original Meanings, 58–93, has a much more extensive discussion. Lynd, Class Conflict, 153–213 sought to move slavery toward a more significant role in the emergence of the nation by connecting the Constitutional Convention and the Northwest Ordinance. Robinson, Structure of American Politics, 41–51, made a similar effort, by connecting slavery to land values.
Our view of Lynd’s analysis appears in Chapter 11. Collier, Decision in Philadelphia, 204–222 discuss Lynd’s detective work in ferreting out the interaction between the Convention and the Congress. They sense there was a deal, but are unsure of its details. They were hesitant to suggest that the North was ready to walk out of the Convention over the slavery question.
52. Only New Jersey and Delaware dissented.
53. Farrand, Records, Vol. I, 522–3
54. The Committee also recommended that bills for raising revenue originate in the House and not be subject to amendment in the Senate. This recommendation followed Franklin’s earlier proposal to protect the wealthier colonies from having their money spent by the poorer ones, but was later dropped.
55. This enhancement was qualified somewhat in the following week by a change in the initial number of representatives in favor of the “smaller” states.
The small states were NH, RI, CN, NJ, DE, GA (and possibly MD; GA identified with the wealthy slave states). Five of them were clearly anti-slavery. Two committees reported successively on the number of representatives to be allotted initially to each state. Here is how they defined the large and small states:
The states with fewer than five votes on the first and six votes on the second count would be considered relatively small under either count.
The debate on July 10 reflected the efforts of South Carolina to reduce the “northern advantage” by a variety of motions, all of which were defeated. Farrand, Records, Vol. I, 566-71.
The enhancement of the voting power of the northern states in the July 10 resolution was in part a response to Patterson’s statement of July 9, questioning the initial allocation which took account of slaves. “He could regard Negro slaves in no light but as property. They are not free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, and like other property, entirely at the will of the master. Has a man in Virginia a number of votes in proportion to the number of his slaves? And if Negroes are not represented in the states to which they belong, why should they be represented in the general government? What is the true principle of representation? It is an expedient by which an assembly of certain individuals chosen by the people is substituted in place of the inconvenient meeting of the people themselves. If such a meeting of the people was actually to take place would the slaves vote? They would not. Why then should they be represented?” He was also against such an indirect encouragement of the slave trade; observing that Congress in their act relating to the change of the eighth article of confederation had been ashamed to use the term “slaves” and had substituted a description. Farrand, Records, Vol. I, 561
56. See his comments in Farrand, Records, Vol. I, 463–5: June 29, 485–7; June 30, 529–31; July 5, 551; July 7, 562; July 9, repeating his recommendation for a compromise of June 30; July 14, Farrand, Records, Vol. II, 8–11.
57. Staughton Lynd excepted, historians have not addressed this question because they assumed that the answer was given by the delegates to the Continental Congress in New York, and have debated about who,
among them, should get the credit.
58. Chapter 1 note 14
59. See Chapter 10 note 17. The most used proposal was that appropriation bills should originate in the House of Representatives.
60. Isaacson, Benjamin Franklin, 463–7
61. Isaacson, Benjamin Franklin, 436–70. Franklin did present a petition to Congress in 1790, to no avail.
62. See Chapter 12
63. Lynd, “Compromise,” in Williams, Northwest Ordinance, 187–88, lists the overlapping membership of the two bodies (Forham, King [MASS], Johnson [CN], Blount [NC], Few, Pierce [GA], and Madison [VA]), and at 207–8, lists those who arrived from Philadelphia in time to take part in the deliberations leading to the Northwest Ordinance (Blount, Hawkins [NC], Pierce, Few [GA], Lee [VA]).
64. His explanation of his role in the Hutchinson letters is an example.
65. Isaacson, Benjamin Franklin, at index for Richard Henry Lee; Wood, Americanization of Benjamin Franklin, at index for Richard Henry Lee.
66. McGaughy, Richard Henry Lee of Virginia,
67. Isaacson Benjamin Franklin, 331–32; Wood, Americanization of Benjamin Franklin, 156–57, 189–190, 211, 231, traces the history and longevity of their animosity.
68. Lynd puts him in New York on July 7. Lynd, “Compromise,” in Williams, Northwest Ordinance, 208
69. McGaughy, Richard Henry Lee of Virginia, 190
70. See Nagel, Lees of Virginia, 131–32
71. See Grigsby, Virginia Convention, 143. Others were not so finicky; some fifteen of the fifty-five delegates to the Convention were also members of the Congress. Lee’s opposition to the Constitution may have in part been generated by his personal commitment to the Continental Congress, and to his perception that the work of the Constitutional Convention would be referred to the Congress for a serious review before being sent to the states. The Convention had been called to recommend amendments to the Articles, not to create a new system of government. The approach taken by Lee’s fellow Virginians in proposing a new structure as well as the ratification process provided in the Constitution itself drastically reduced the role of the Continental Congress and may have induced Lee’s opposition to the Constitution. Despite his opposition, he was elected as Virginia’s first senator under the Constitution.