Garrison's Constitution

The Covenant with Death and How It Was Made
 

Winter 2000, Vol. 32, No. 4

By Paul Finkelman

© 2000 by Paul Finkelman

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One of the compromises made by the Constitutional Convention was to close the African slave trade in 1808. This manifest from the schooner Gustavus shows the increased value of slaves in the domestic market after that date. (Records of the U.S. Customs Service, RG 36)

The abolitionist William Lloyd Garrison thought the U.S. Constitution was the result of a terrible bargain between freedom and slavery. Calling the Constitution a "covenant with death" and "an agreement with Hell," he refused to participate in American electoral politics because to do so meant supporting "the pro-slavery, war sanctioning Constitution of the United States." Instead, under the slogan "No Union with Slaveholders," the Garrisonians repeatedly argued for a dissolution of the Union.¹

Part of Garrison's opposition to continuing the Union stemmed from a desire to avoid the corruption that came from participating in a government created by the proslavery Constitution. But this position was also at least theoretically pragmatic. The Garrisonians were convinced that the legal protection of slavery in the Constitution made political activity futile, while support for the Constitution merely strengthened the stranglehold slavery had on America. In 1845 Wendell Phillips pointed out that in the years since the adoption of the Constitution, Americans had witnessed "the slaves trebling in numbers—slaveholders monopolizing the offices and dictating the policy of the Government-prostituting the strength and influence of the Nation to the support of slavery here and elsewhere—trampling on the rights of the free States, and making the courts of the country their tools." Phillips argued that this experience proved "that it is impossible for free and slave States to unite on any terms, without all becoming partners in the guilt and responsible for the sin of slavery."²

The Garrisonians believed that if they worked within the political system they were merely spinning their wheels, spending their money and time on a cause that was doomed. The Constitution was proslavery, the national government was controlled by slaveowners, and politics was a waste of time. A quick look at the presidency underscored their view. From 1788 until 1860, only two opponents of slavery, John Adams and John Quincy Adams, held the nation's highest office, and for only a total of eight years. On the other hand, slaveowners held the office for fifty of these seventy-two years, and doughfaces-northern men with southern principles—like James Buchanan and Franklin Pierce—held it the rest of the time.

This did not surprise the Garrisonians, who understood that the Constitution was heavily influenced by slaveowners. The Garrisonians did not necessarily see the Constitution as the result of a deliberate conspiracy of evil men; rather, they understood it to be the consequence of political give-and-take at the Convention of 1787.

Thus, in The Constitution A Pro-Slavery Compact; or, Selections from the Madison Papers, Wendell Phillips analyzed "that 'compromise,' which was made between slavery and freedom, in 1787; granting to the slaveholder distinct privileges and protection for his slave property, in return for certain commercial concessions upon his part toward the North." Phillips argued that "the Nation at large were fully aware of this bargain at the time, and entered into it willingly and with open eyes."³ Phillips both exaggerated and understated the nature of the relationship between slavery and the Constitution. Certainly, some of those at the Convention "entered into" the bargain with great reservations, and many at the ratifying conventions may not have seen the full extent of the "bargain." On the other hand, the bargain involved more than commerce and slavery; it concerned the very creation of the Union itself. Both the text of the Constitution and the debates surrounding it help us understand that the "more perfect Union" created by this document was in fact fundamentally imperfect.

Slavery in the Constitutional Structure

The word "slavery" appears in only one place in the Constitution—in the Thirteenth Amendment, where the institution is abolished. Throughout the main body of the Constitution, slaves are referred to as "other persons," "such persons," or in the singular as a "person held to Service or Labour." Why is this the case?

In a debate over representation, William Paterson of New Jersey pointed out that the Congress under the Articles of Confederation "had been ashamed to use the term 'Slaves' & had substituted a description." This shame over the word "slave" came up at the convention during the debate over the African slave trade. The delegates from the Carolinas and Georgia vigorously demanded that the African trade remain open under the new Constitution. Gouverneur Morris of Pennsylvania, unable to contain his anger over this immoral compromise, suggested that the proposed clause read: the "Importation of slaves into N. Carolina, S— Carolina & Georgia" shall not be prohibited. Connecticut's Roger Sherman objected, not only to the singling out of specific states but also to the term slave. He declared he "liked a description better than the terms proposed, which had been declined by the old Congs & were not pleasing to some people." North Carolina's James Iredell, who had been a delegate in Philadelphia, later explained that "The word slave is not mentioned" because "the northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned." Thus, southerners avoided the term because they did not want unnecessarily to antagonize their colleagues from the North. As long as they were assured of protection for their institution, the southerners at the Convention were willing to do without the word "slave."⁴

Despite the circumlocution, slavery was sanctioned throughout the Constitution. Five provisions dealt directly with slavery:

Art. I, sec. 2, par. 3. The three-fifths clause provided for counting three-fifths of all slaves for purposes of representation in Congress. This clause also provided that any "direct tax" levied on the states could be imposed only proportionately, according to population, and that only three-fifths of all slaves would be counted in assessing each state's contribution.

Art. I, sec. 9, par. 1. This clause prohibited Congress from banning the "Migration or Importation of such Persons as any of the States now existing shall think proper to admit" before the year 1808. Awkwardly phrased and designed to confuse readers, the clause prevented Congress from ending the African slave trade before 1808 but did not require Congress to ban the trade after that date. The clause was a significant exception to the general power granted to Congress to regulate all foreign and interstate commerce.

Art. I, sec. 9, par. 4. This clause declared that any "capitation" or other "direct tax" had to take into account the three-fifths clause. It ensured that, if a head tax were ever levied, slaves would be taxed at three-fifths the rate of whites. The "direct tax" portion of this clause was redundant, because that was provided for in the three-fifths clause.

Art. IV, sec. 2, par. 3. The fugitive slave clause prohibited the states from emancipating fugitive slaves and required that runaways be returned to their owners "on demand."

Art. V. This article prohibited any amendment of the slave importation or capitation clauses before 1808.

Taken together, these five provisions gave the South a strong claim to "special treatment" for its peculiar institution. The three-fifths clause also gave the South extra political muscle—in the House of Representatives and in the electoral college—to support that claim.

Numerous other clauses of the Constitution supplemented the five clauses that directly protected slavery. Some, such as the prohibition on taxing exports, were included primarily to protect the interests of slaveholders. Others, such as the guarantee of federal support to "suppress Insurrections" and the creation of the electoral college, were written with slavery in mind, although delegates also supported them for other reasons as well. The most prominent indirect protections of slavery were:

Art. I, sec. 8, par. 15. The domestic insurrections clause empowered Congress to call "forth the Militia" to "suppress Insurrections," including slave rebellions.⁵

Art. I, sec. 9, par. 5, and Art. I, sec. 10, par. 2. These clauses prohibited federal or state taxes on exports and thus prevented an indirect tax on slavery by taxing the staple products of slave labor, such as tobacco, rice, and eventually cotton.⁶

Art. II, sec. 1, par. 2. This clause provided for the indirect election of the President through an electoral college based on congressional representation. This provision incorporated the three-fifths clause into the electoral college and gave whites in slave states a disproportionate influence in the election of the President.

Art. IV, sec. 4. In the domestic violence provision of the guarantee clause, the United State government promised to protect states from "domestic Violence," including slave rebellions.

Art. V. By requiring a three-fourths majority of the states to ratify any amendment to the Constitution, this article ensured that the slaveholding states would have a perpetual veto over any constitutional changes.⁷

Besides specific clauses of the Constitution dealing with slavery, the structure of the entire document ensured against emancipation by the new federal government. Because the Constitution created a government of limited powers, Congress lacked the power to interfere in the domestic institutions of the states. Thus, during the ratification debates, only the most fearful southern antifederalists opposed the Constitution on the grounds that it threatened slavery. Most southerners, even those who opposed the Constitution for other reasons, agreed with Gen. Charles Cotesworth Pinckney of South Carolina, who crowed to his state's house of representatives:

We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states.⁸

The final Constitution provided enormous protections for the peculiar institution of the South at very little cost to that region. At the Virginia ratifying convention, Edmund Randolph denied that the Constitution posed any threat at all to slavery. He challenged opponents of the Constitution to show, "Where is the part that has a tendency to the abolition of slavery?" He answered his own question asserting, "Were it right here to mention what passed in [the Philadelphia] convention. . . I might tell you that the Southern States, even South Carolina herself, conceived this property to be secure" and that "there was not a member of the Virginia delegation who had the smallest suspicion of the abolition of slavery." South Carolinians, who had already ratified the Constitution, would have agreed with Randolph. In summing up the entire Constitution, Pinckney, who had been one of the ablest defenders of slavery at the convention, proudly told the South Carolina House of Representatives: "In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could; but on the whole, I do not think them bad."⁹

Slavery and Congressional Representation

General Pinckney had good reason to be proud of his role in Philadelphia. Throughout the convention, Pinckney and other delegates from the Deep South tenaciously fought to protect the interests of slaveholders. In these struggles they were usually successful.

When they arrived, the delegates probably did not think slavery would be a pressing issue. Rivalries between large and small states appeared to pose the greatest obstacle to a stronger Union. The nature of representation in Congress; the power of the national government to levy taxes, regulate commerce, and pay off the nation's debts; the role of the states under a new constitution; and the power of the executive were on the agenda. Yet, as the delegates debated these issues, the importance of slavery—and the sectional differences it caused—became clear. Throughout the summer of 1787 slavery emerged to complicate almost every debate. Most important by far was the way slavery figured in the lengthy debate over representation.

On May 29, Governor Edmund Randolph of Virginia submitted the series of resolutions known as the Virginia Plan to the convention. Randolph introduced these resolutions in response to the "crisis" of the nation "and the necessity of preventing the fulfillment of the prophecies of the American downfall."¹⁰

Randolph's plan called for a radical restructuring of the American government by making population the basis for representation in the national Congress. Under the Articles of Confederation, each state had one vote in Congress. By changing the basis of representation to population, Randolph's plan immediately created tensions between the large and small states at the convention. But the plan also raised the dilemma of whether slaves would be counted for the purposes of determining how many representatives each state would get in the new Congress. This dilemma of how to count slaves, or whether to count them at all, would trouble the delegates throughout the convention.

Virginia was the most populous state in the nation, and thus Randolph had a vested interest in basing congressional representation on population. But how that population would be counted greatly affected the potential representation of Virginia and the rest of the South. Virginia's white population, as the 1790 census would reveal, was only slightly larger than Pennsylvania's. If representation were based solely on free persons, the North would overwhelm the South.¹¹ But if slaves were counted equally with free persons, the Virginia delegation would be overwhelmingly larger than the delegation of any other state, and the South would have more members of Congress than the North. The Virginians of course realized that the northern states were unlikely to embrace enthusiastically a system of government that counted slaves for purposes of representation. Thus, Randolph's plan hedged the issue, declaring "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."¹² The "other rule" would count unfree inhabitants.

Squabbling over slavery began in earnest the next day, May 30. James Madison moved to delete the term "free inhabitants" from the Randolph Plan because he felt the phrase "might occasion debates which would divert" attention "from the general question whether the principle of representation should be changed" from states to population. Madison understood that an early debate on the role of slavery in the Union might destroy the convention before it got started. But his proposal would have left representation based solely on "quotas of contribution," and this was also unacceptable to most delegates. Madison himself agreed "that some better rule ought to be found." Alexander Hamilton then proposed that representation be based solely on the number of "free inhabitants" in each state. This proposal was also too volatile, and the delegates quickly tabled it. Other attempts at compromise failed before the convention adjourned for the day.¹³

On June 11 the issue of slavery reemerged when the convention considered for the first time and provisionally approved the three-fifths clause. Over the next three months the convention would, on a number of occasions, redebate and reconsider the three-fifths clause before finally adopting it.

The evolution of the three-fifths clause during the convention shows that the clause was not essentially a compromise over taxation and representation, as historians have traditionally claimed, and as the structure of Article I, sec. 2, par. 3, implies.¹⁴ Rather, it began as a compromise between those who wanted to count slaves fully for purposes of representation and those who did not want to count slaves at all. On this crucial question the slave states won a critical victory without making any important concessions.

On June 11 James Wilson of Pennsylvania and Charles Pinckney, the younger cousin of Charles Cotesworth Pinckney, proposed what became the three-fifths clause. By teaming up, the nominally antislavery Pennsylvanian and the rabidly proslavery Carolinian may have hoped to undercut the antislavery sentiments of other northern delegates while also satisfying the demands of the proslavery delegates like Butler and Rutledge.¹⁵

While most delegates accepted this proposal, Elbridge Gerry of Massachusetts did not, sarcastically protesting, "Blacks are property, and are used to the southward as horses and cattle to the northward; and why should their representation be increased to the southward on account of the number of slaves, than horses or oxen to the north?" Gerry believed this would be an appropriate rule for taxation, but not for representation. He also argued that this clause would degrade freemen in the North by equating them with slaves. He wondered "Are we to enter into a Compact with Slaves?"¹⁶ Despite Gerry's objection, the convention endorsed the three-fifths clause as a basis for representation with little serious debate. The clause, which would give the South enormous political leverage in the nation, was accepted without any quid pro quo from the South. Application of the clause to taxation would not come until later in the convention. However, the issue would reemerge many times in the next month.

On June 30, with the convention stalled over how to allocate representation between the small and large states, Madison offered a new mode of analysis for the delegates. He argued:

that the States were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from their having or not having slaves. These two causes concurred in forming the great division of interests in the U. States. It did not lie between the large and small States: it lay between the Northern and Southern, and if any defensive power were necessary, it ought to be mutually given to these two interests.

Madison proposed two branches of Congress, one in which slaves would be counted equally with free people to determine how many representatives each state would have, and one in which slaves would not be counted at all. Under this arrangement, "the Southern Scale would have the advantage in one House, and the Northern in the other." Madison made this proposal despite his reluctance to "urge any diversity of interests on an occasion when it is but too apt to arise of itself."¹⁷

The convention ignored Madison's proposal. But the theme arose again and again. Sectionalism—rooted in slavery—was clearly a major cause of division within the convention and the nation. Indeed, slavery continued to complicate the convention debates long after the division between large and small states had evaporated. On July 2 Charles Pinckney argued that there was "a solid distinction as to interest between the southern and northern states" and that the Carolinas and Georgia "had a peculiar interest which might be sacrificed" if they did not have sufficient power in any new Congress.¹⁸

On July 6, after the convention seemed solidly in favor of the three-fifths rule, Charles Pinckney argued that "blacks ought to stand on an equality with whites," but he "w[oul]d . . . agree to the ratio settled by Congs."¹⁹ But southerners were not the only ones dissatisfied by the compromise. On July 9 William Paterson of New Jersey sparked a four-day debate over slavery and representation when he complained about counting slaves for allocation representation. Paterson declared he regarded

negroes slaves in no light but as property. They are no 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.

Paterson pointedly asked, "Has a man in Virga. a number of votes in proportion to the number of his slaves?" He noted that slaves were not counted in allocating representation in southern state legislatures, and asked, "Why should they be represented in the Genl. Gov't.[?]" Finally, Paterson argued that counting slaves for purposes of representation encouraged the slave trade.²⁰

In response, Madison once again proposed that representation in one house of the legislature be based on total population and the other on only the free population. Pierce Butler again argued for wealth as a basis for representation. This proposal, of course, meant that slaves would be counted equally with whites. Rufus King of Massachusetts gave unexpected support to Butler by warning that the South would not unite with the rest of the country "unless some respect were paid to their superior wealth." Furthermore, King reminded his northern colleagues that, if they expected "preferential distinctions in Commerce," they should be willing to give up something. At least at this point in the convention, King was willing to accept the three-fifths ratio for representation.²¹ Here was the beginning of a major compromise between the Deep South and the commercially oriented states of the North. At the moment, King and other northerners were offering the three-fifths clause to the South, but the South offered no concession in return.

On July 10 Charles Cotesworth Pinckney responded that the South did not require "a majority of representatives, but [he] wished them to have something like an equality." Otherwise, Congress would pass commercial regulations favorable to the North, and the southern states would "be nothing more than overseers for the Northern States." Hugh Williamson of North Carolina feared "the Southern Interest must be extremely endangered" by a northern majority in Congress.²²

Gouverneur Morris of Pennsylvania, who was emerging as the convention's most vocal opponent of concessions to slavery, argued that in time of emergency, northerners would have to "spill their blood"²³ because there were more free people in the North than in the South and because slavery made the South an unreliable ally in wartime.

The next day, while debating the provision for a national census, Pierce Butler and Charles Cotesworth Pinckney of South Carolina "insisted that blacks be included in the rule of Representation, equally with the Whites." Butler argued that "the labour of a slave in South Carolina was as productive and valuable as that of a freeman in Massachusetts," and since the national government "was instituted principally for the protection of property," slaves should be counted fully for representation.²⁴

On July 11 Wilson of Pennsylvania argued for retaining the three-fifths rule on pragmatic grounds. Admitting he "did not well see on what principle the admission of blacks in the proportion of three fifths could be explained." He asked, if slaves were citizens "why are they not admitted on an equality with White Citizens?" But if slaves were "admitted as property," it was reasonable to ask, "Then why is not other property admitted into the computation?" But Wilson argued that these logical inconsistencies "must be overruled by the necessity of compromise." Gouverneur Morris was unwilling to sacrifice principle. Having been "reduced to the dilemma of doing injustice to the Southern States or to human nature," Morris chose the former, asserting that he "could never agree to give such encouragement to the slave trade" by allowing the slave states "a representation for their negroes."²⁵

The next day, July 12, the three-fifths clause was back on the floor, directly tied to taxation for the first time. Six southerners spoke, all threatening to oppose the Constitution if the South did not get substantial representation for its slave population. The South Carolinians once again demanded full representation for slaves, declaring themselves willing, even eager, to be taxed fully for their slaves in return for full representation for their slaves.²⁶ William R. Davie of North Carolina, who had been virtually silent throughout the Convention, now declared "it was high time now to speak out." Davie warned that North Carolina would "never confederate" unless slaves were counted, at the very least, under a three-fifths ratio. Otherwise, he threatened "the business [of the convention] was at an end."²⁷

Only Gouverneur Morris was prepared to call Davie's bluff. Morris warned that Pennsylvania would "never agree to a representation of Negroes," but he also agreed that it was "vain for the Eastern states to insist on what the Southern States will never agree to."²⁸ Oliver Ellsworth and William Samuel Johnson of Connecticut answered Morris, strongly supported southern interests, foreshadowing an emerging compromise between New England and the South over slavery and commerce. After a heated debate, the convention finally adopted the three-fifths clause by a vote of six to two, with two states divided.²⁹

After more than a month and a half of anguished argument, the convention had finally resolved the issue of representation for what would become the House of Representatives. Throughout, slavery had constantly confused the issue and thwarted compromise. Sectional interests caused by slavery had emerged as a major threat to the Union.

No sooner had the convention laid to rest the issue of representation than it resurfaced as part of the debate over taxation. On July 13 Elbridge Gerry proposed that, until an actual census could be taken, taxation would be based on the initial representation in the House. This seemingly reasonable proposal set the stage for more debate over representation. Once again Madison asserted that "the difference of interest in the United States lay not between the large and small, but the Northern and Southern States." After much debate, the convention reiterated its commitment to the three-fifths clause, both for representation and for taxation.³⁰

With the sense of the convention on this issue apparently clear, Randolph moved to bring language previously used in the working document into conformity with the three-fifths clause. Earlier in the convention the body declared that representation would be based on "wealth." Randolph now proposed substituting the wording of the three-fifths clause for the word "wealth."³¹ Gouverneur Morris mocked Randolph's attempt to replace the word "wealth" with the three-fifths clause. If slaves were "property," then "the word wealth was right, and striking it out would produce the very inconsistency which it was meant to get rid of." Morris then launched into a full-scale attack on southern demands. In the process, he suggested that a peaceful end to the convention, and the Union itself, might be in order. Morris asserted that, until this point in the convention, he had believed that the distinction between northern and southern states was "heretical." But he saw that it was "persisted in; and that the Southern Gentleman will not be satisfied unless they see the way open to their gaining a majority in the public Councils." The North naturally demanded "some defence" against this. Morris thus concluded:

Either this distinction is fictitious or real: if fictitious let it be dismissed and let us proceed with due confidence. If it be real, instead of attempting to blend incompatible things, let us at once take a friendly leave of each other. There can be no end of demands for security if every particular interest is to be entitled to it.

Morris argued that the North had as much to fear from the South as the South had to fear from the North.³²

South Carolina's Pierce Butler responded with equal candor: "The security the Southn. States want is that their negroes may not be taken from them which some gentlemen within or without doors, have a very good mind to do."³³

By Saturday the fourteenth, sectional tempers had cooled, and the convention now reconsidered the makeup of what would ultimately become the Senate. The small states again reiterated their fears that the large states would overwhelm them in a legislature based entirely on population. Madison yet again argued that "the real difference of interests lay, not between the large and small but between the Northern and Southern States. The institution of slavery and its consequences formed the line of discrimination." Madison seemed particularly worried that state equality would give the North a perpetual majority in one branch of the legislature.³⁴

Over Madison's protests, the equality of the states in the Senate remained part of the Constitution. On the final vote on this issue, three of the four negative votes came from the South.³⁵ This vote indicates that Madison's sense of sectional division was at least as important as the division between large and small states.

Slavery and the Executive Branch

Slavery also complicated the debates on how to choose the national executive. Many of the delegates instinctively believed in a direct election of a President, just as their governors were elected. But in the end, the most vocal opposition to election by the people came from three southerners: Charles Pinckney, George Mason, and Hugh Williamson. While Pinckney and Mason argued against the competence of the "people," Williamson was more open about the reasons for southern opposition. He noted Virginia's leaders would never be elected President because "her slaves will have no suffrage."³⁶ The same of course would be true for the rest of the South.

Madison believed the "the people at large" were "the fittest" to choose the President. But "one difficulty . . . of a serious nature" made election by the people impossible. Madison noted that the "right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes." In order to guarantee that the nonvoting slaves could nevertheless influence the presidential election, Madison favored the creation of the electoral college.³⁷ Under this system, each state was given a number of electors equal to its total congressional and senatorial representation. This meant that the three-fifths clause would help determine the outcome of presidential elections.³⁸ Thus, the fundamentally antidemocratic electoral college developed, at least in part, to protect the interests of slavery.

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An advertisement for runaway slaves. C. C. Pinckney of South Carolina recognized that the adoption of the fugitive slave clause in the Constitution handed slaveholding states a new right—"to recover our slaves in whatever part of America they may take refuge." (Library of Congress)

Commerce and Slavery: The Dirty Compromise

The third major slavery issue at the convention involved the African slave trade and the regulation of commerce. On August 6 a Committee of Detail presented the convention with a coherent document based on the debates of the previous two and a half months. The report prohibited Congress from ending the African slave trade and required a two-thirds majority to pass navigation acts. The new government would be obligated to provide military support to suppress rebellions and insurrections in the states. The committee report also prohibited taxation of both exports and imported slaves. With the exception of a clause allowing Congress to regulate commerce by a simple majority, the draft Constitution seemed to give the South everything it wanted. ³⁹

On August 7 Rufus King protested, yet again, that counting slaves for representation "was a most grating circumstance," especially because the draft of the Constitution also prohibited Congress from banning the slave trade or even taxing the produce of slave labor. He thought that some provision ought to be made for ending the slave trade, but at minimum he argued that "either slaves should not be represented, or exports should be taxable." ⁴⁰

Roger Sherman, who would prove to be the Deep South's most vocal northern ally, agreed with King that the slave trade was "iniquitous" but believed that this issue should not be raised in connection with the question of representation, which had "been settled after much difficulty and deliberation." Madison, Ellsworth, and Sherman then tried to discuss other topics. But Gouverneur Morris would not let the slavery issue drop. He moved to insert the word "free" in front of the word "inhabitants" in the clause directing how representation would be determined. Believing that "much . . . would depend on this point," Morris said that he could "never . . . concur in upholding domestic slavery," which was "the curse of heaven on the States where it prevailed." Morris compared the "rich and noble cultivation" of the middle states with "the misery and poverty which overspread the barren wastes of Virginia, Maryland and the other" slave states and concluded that counting slaves for representation

when fairly explained comes to this: that the inhabitant of Georgia and South Carolina who goes to the Coast of Africa, and in defiance of the most sacred laws of humanity tears away his fellow creatures from their dearest connections and damns them to the most cruel bondages, shall have more votes in a Government instituted for protection of the rights of mankind, than the Citizen of Pennsylvania or New Jersey who views with a laudable horror, so nefarious a practice.

Morris complained that the draft Constitution compelled the North "to march their militia for the defence of the Southern States; for their defence against those very slaves of whom they complain." Furthermore, the government lacked the power to levy a tax on imported slaves or on the goods they produced. Worst of all, counting slaves for representation encouraged the South to import more of them. Morris scoffed at the idea that there could ever be a direct tax, such as the three-fifths clause allowed, because it was "idle to suppose that the General Government can stretch its hand directly into the pockets of the people scattered over so vast a Country." Thus the South would get extra representation in Congress for its slaves and have to pay nothing in return. Morris declared he "would sooner submit himself to a tax for paying for all the Negroes in the United States than saddle posterity with such a Constitution." ⁴¹

Roger Sherman of Connecticut calmly answered his northern neighbors, declaring he saw no "insuperable objections" to "the admission of the Negroes into the ratio of representation." He argued "It was the freemen of the Southn. States who were in fact to be represented according to the taxes paid by them, and the Negroes are only included in the Estimate of the taxes." ⁴²

On August 16, when the convention began another debate over congressional taxing power, George Mason of Virginia raised the issue of the power of Congress to tax exports. A part of the draft Constitution that had not yet been debated specifically prohibited Congress from taxing exports. But Mason "was unwilling to trust to its being done in a future article" and "professed his jealousy for the productions of the Southern or as he called them, the staple States." Sherman and Rutledge reassured Mason that such a provision could be dealt with later. Mason could not, however, have been totally reassured. With the exception of Madison, all the southerners opposed taxing exports; all of the northerners, except those from Connecticut and Massachusetts, favored the idea. ⁴³ The convention then postponed the question of taxing exports.

This short debate gave hints of a developing bargain between New Englanders and delegates from the Deep South. In reassuring Mason, South Carolina's John Rutledge noted that he would vote for the commerce clause as it stood, but only "on condition that the subsequent part relating to negroes should also be agreed to." ⁴⁴ Rutledge clearly equated an export tax with an attack on slavery. Delegates from Connecticut and Massachusetts indicated some support for Rutledge's position. What should be called the "dirty compromise" of the convention was taking shape. The South Carolina delegation would support the commerce clause if New England would support a prohibition on export taxes and a protection for the slave trade. This understanding solidified during the next two weeks.

On August 21 the New England states joined the five slave states south of Delaware to prohibit taxes on exports. During the debate, Connecticut's Ellsworth argued against taxing exports because such taxes would unfairly hurt the South, which produced major export crops such as "Tobo. rice and indigo." Ellsworth believed "a tax on these alone would be partial and unjust." ⁴⁵

The convention then debated a motion by Luther Martin to allow an import tax on slaves. Rutledge opposed Martin's motion, telling the convention that the "true question at present is whether the Southern States shall or shall not be parties to the Union." The implied threat of secession was clear. He then told the northern delegates that, if they would "consult their interest," they would "not oppose the increase of slaves which will increase the commodities of which they will become the carriers." Ellsworth of Connecticut refused to debate the "morality or wisdom of slavery" and simply asserted that "what enriches a part enriches the whole." The alliance for profit between the Deep South and New England was now fully developed. Charles Pinckney then reaffirmed that South Carolina would "never receive the plan if it prohibits the slave trade." ⁴⁶ Shrewdly, Pinckney equated a tax on imported slaves with a prohibition on the trade itself. On this note the convention retired for the day.

Roger Sherman opened debate the next day by adopting a familiar pose. He declared his personal disapproval of slavery but refused to condemn it in other parts of the nation. He then argued against a prohibition of the slave trade. First, he asserted that "the public good did not require" an end to the trade. Noting that the states already had the right to import slaves, Sherman saw no point in taking a right away from the states unnecessarily because "it was expedient to have as few objections as possibl" to the new Constitution. Here Sherman assumed it was necessary to defuse southern opposition to the Constitution, which might result from a ban on the slave trade, but he did not think it necessary to placate those who might oppose the Constitution if it allowed the slave trade to continue. Sherman was prepared to appease those who supported the slave trade, but he apparently was unconcerned about the strong opposition to the slave trade in his own region. Revealing his true priorities, Sherman urged the delegates to hurry and finish their business, noting, no doubt, that they had been in session for almost three months. ⁴⁷

George Mason of Virginia responded to Sherman with a fierce attack on the "infernal traffic" in slaves, which he blamed on "the avarice of British Merchants." Reflecting the sectional hostilities at the convention, as well as trying to lay blame on anyone but Virginians for the problem of slavery, Mason "lamented" that his "Eastern brethren had from a lust of gain embarked in this nefarious traffic." Mason leveled some of the strongest criticism of slavery yet heard at the convention, declaring it an "evil" system that produced "the most pernicious effect on manners." He declared that "every master of slaves is born a petty tyrant" and warned that slavery would "bring the judgment of heaven on a Country" and ultimately produce "national calamities." Despite this apparent attack on the whole institution, Mason ended his speech by demanding only that the national government "have power to prevent the increase of slavery" by prohibiting the African trade. As historian Peter Wallenstein has argued, "Whatever his occasional rhetoric, George Mason was—if one must choose—proslavery, not antislavery. He acted in behalf of Virginia slaveholders, not Virginia slaves," when he opposed a continuation of the African trade. ⁴⁸

Others at the convention understood this quite well. Mason failed to say that Virginia had a surplus of slaves and did not need the African slave trade any longer. But James McHenry candidly wrote in his private notes: "That the population or increase of slaves in Virginia exceeded their calls for their services," and thus a prohibition of the slave trade "would be a monopoly" in Virginia's "favor." Under such conditions "Virginia etc would make their own terms for such [slaves] as they might sell." ⁴⁹ The "etc" no doubt included McHenry's own state of Maryland.

Ellsworth of Connecticut, adopting the same pose as Sherman, answered Mason. Because "he had never owned a slave," Ellsworth declared he "could not judge of the effects of slavery on character." However, if slavery were as wrong as Mason had suggested, merely ending the trade was insufficient. Ellsworth, of course, knew that the Virginians opposed allowing the national government to abolish slavery. Therefore, since there were many slaves in Virginia and Maryland and fewer in the Deep South, any prohibition on the trade would be "unjust towards S. Carolina and Georgia." Ellsworth urged the convention not to "intermeddle" in the affairs of other states. ⁵⁰ The convention had now witnessed the unusual phenomenon of a New Englander defending the slave trade against the attacks of a Virginian.

The Carolinians were of course quite capable of defending their own institution. Charles Pinckney, citing ancient Rome and Greece, declared that slavery was "justified by the example of all the world.v He warned that any prohibition of the slave trade would "produce serious objections to the Constitution which he wished to see adopted." ⁵¹ His cousin, General Pinckney, also declared his support for the Constitution but noted that his "personal influence . . . would be of no avail towards obtaining the assent" of his home state. He believed Virginia's opposition to the trade was more pecuniary than moral. Virginia would "gain by stopping the importations" because "her slaves will rise in value, and she has more than she wants." Prohibiting the trade would force South Carolina and Georgia "to confederate" on "unequal terms." While Virginia might gain, the nation as a whole would not. More slaves would produce more goods, and that result would help not only the South but also states involved in "the carrying trade." Seeing the slave trade solely as an economic issue, Pinckney thought it "reasonable" that imported slaves be taxed. But a prohibition of the slave trade would be "an exclusion of S. Carola from the Union." As he had made clear at the beginning of his speech, "S. Carolina and Georgia cannot do without slaves." Rutledge and Butler added similar sentiments, as did Abraham Baldwin of Georgia and Williamson of North Carolina. ⁵²

New England accents now supported the southern drawls. Gerry of Massachusetts offered some conciliatory remarks, and Sherman, ever the ally of the South, declared that "it was better to let the S. States import slaves than to part with them, if they made that a sine qua non." However, in what may have been an attempt to give his remarks an antislavery tone, he argued that taxing imported slaves was morally wrong, because that "implied they were property." ⁵³ This position undoubtedly pleased Sherman's southern allies, who did not want to pay taxes on any slaves they imported. Sherman's speech also underscored the profound support that the Carolinians and Georgians found among some New Englanders.

The reasons for cooperation between New England and the Deep South on this issue were now clear. New Englanders, involved in the "carrying trade," would profit from transporting rice and other products produced by slave labor. And the South Carolinians seemed willing to support the New Englanders' demands for congressional power to regulate all commerce. In return, New Englanders would support the right of the Carolinas and Georgia to import the slaves they could not "do without."

On the other side of the issue, only John Langdon of New Hampshire and John Dickinson of Delaware vigorously opposed allowing the slave trade to continue. Dickinson argued that the trade was "inadmissible on every principle of honor and safety." Furthermore, he was prepared to call the Carolinians' bluff on the question of Union, doubting the Deep South would reject the Constitution if the trade were prohibited. ⁵⁴

Two days later, on August 25, the committee reported a compromise proposal; on the twenty-sixth the convention began to debate it. The committee proposed that Congress be barred from prohibiting the African slave trade until 1800, but that in the meantime a reasonable tax could be levied on imported slaves. Gen. Charles Cotesworth Pinckney immediately urged that the date be changed to 1808, which would be twenty years after the Constitution was ratified. Nathaniel Gorham of Massachusetts seconded this motion. Madison complained that this provision was "dishonorable to the National character" and to the Constitution and the "twenty years will produce all the mischief that can be apprehended from the liberty to import slaves." Nevertheless, the delegates accepted Pinckney's change by a seven-to-four vote. Three New England states, Maryland, and the three Deep South states supported Pinckney's motion. ⁵⁵ By a seven-to-four vote the convention then adopted the slave trade provision. The three New England states once again joined Maryland and the Deep South to allow the slave trade to continue for twenty years. ⁵⁶ This vote formed a key component of the "dirty compromise."

On August 28 the convention considered the fugitives from justice clause. Butler and Charles Pinckney attempted to amend this provision "to require fugitive slaves and servants to be delivered up like criminals." Roger Sherman sarcastically countered that he "saw no more propriety in the public seizing and surrendering a slave or servant, than a horse." James Wilson objected that this would cost the free states money. Significantly, this opposition came from two delegates who usually sided with the South. Butler wisely "withdrew his proposition in order that some particular provision might be made apart from this article." ⁵⁷

The next day, the debates over commerce, the slave trade, and fugitive slaves were all joined to complete the "dirty compromise." In a debate over the commerce clause, Charles Pinckney, the younger and more impetuous of the two cousins, moved that a two-thirds majority be required for all commercial regulations. He argued that "the power of regulating commerce was a pure concession on the part of the S. States" and that therefore the two-thirds requirement was reasonable. ⁵⁸

C. C. Pinckney agreed that "it was the true interest of the S. States to have no regulation of commerce." But, in one of the most revealing statements of the convention, he explained his support for a clause requiring only a simple majority for passage of commercial legislation. Pinckney said he took this position because of "their [the eastern states'] liberal conduct towards the views of South Carolina." The "views of South Carolina" concerned the slave trade. In the margins of his notes, Madison made this clear. Madison wrote that Pinckney

meant the permission to import slaves. An understanding on the two subjects of navigation and slavery, had taken place between those parts of the Union, which explains the vote on the Motion depending, as well as the language of General Pinckney and others.

Other delegates confirm this analysis. Luther Martin later reported that "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 restrictive clause relative to navigation acts was to be omitted." ⁵⁹

Subsequent debate confirmed that New Englanders and South Carolinians had indeed struck a bargain. Butler, for example, declared that the interests of the southern and eastern states were "as different as the interests of Russia and Turkey." Nevertheless, he was "desirous of conciliating the affections of the East" and so opposed the two-thirds requirement. The Virginians, who had opposed the slave trade provisions, now supported the demand for a two-thirds requirement for commercial legislation. But they were in the minority. South Carolina joined all the northern states to defeat the motion to require a two-thirds vote to regulate commerce. The convention then adopted the clause allowing a simply majority to regulate commerce. ⁶⁰

Immediately after this vote, Butler reintroduced the fugitive slave clause. Without debate or recorded vote, it too passed. ⁶¹ The last bargain over slavery had been made. The northerners who had opposed the fugitive slave provision only a day before were now silent.

The debates of late August reveal how willing the northern delegates—especially the New Englanders—were to support slavery and the demands of the Deep South. Some years ago William W. Freehling argued the slave trade clause was adopted to "lure Georgia and South Carolina into the Union." ⁶² The convention debates, however, suggest that the Deep South did not need to be lured into the Union; the delegates from the Carolinas and Georgia were already deeply committed to the Constitution by the time the slave trade debate occurred. Moreover, the South had already won major concessions on the three-fifths clause and the prohibition on taxing exports. These were permanent features of the Constitution, unlike the slave trade provision, which would lapse in twenty years. Although some southerners talked of not joining the Union unless the slave trade were allowed, it seems unlikely they would have risked going it alone over a temporary right of importation. ⁶³

This prospect is even more unlikely because at the time of the convention none of these states was actively importing slaves from Africa. From 1787 until 1803 South Carolina did not import any slaves from Africa. From 1803 to 1808 South Carolina imported about eighty thousand new slaves. These importations created enormous human tragedies for the individual victims of the trade—and they doubtless provided huge profits to individual importers and purchasers—but these importations did not dramatically affect the economy of South Carolina or the Deep South.

Would the states of the Deep South have rejected the Constitution over the right to import slaves in the future when they in fact were not currently importing them? Even without constitutional protection for the slave trade, importations from Africa would have been legal until the Congress actually took the time, and mustered the votes, to prohibit them. At no time did the convention consider a clause flatly prohibiting the trade; the entire debate was over whether the Constitution would explicitly protect the trade. In essence, the convention granted Congress the general power to regulate all international commerce except the African slave trade. It is not surprising that the South Carolina delegation considered this a great victory for their special interest in slave importations.

However one views the African trade, it is hard to see how anyone could assert that the fugitive slave clause was also a "lure." Added at the last possible moment, without any serious debate or discussion, this clause was a boon to the South without any quid pro quo for the North. On this vote the northern delegates either did not understand the importance of the issue or were too tired to fight it.

The August debates also reveal that the northern delegates could have had no illusions about the nature of the covenant they were forming with the South. The northern delegates could not have forgotten C. C. Pinckney's earlier assertion that "S. Carolina and Georgia cannot do without slaves." While the "Fathers liked to call [slavery] temporary," the evidence of the convention shows they should have known better. ⁶⁴ Throughout the convention the delegates from the slave states made no attempt to hide the fact that they believed slavery would be a permanent part of their culture and society. No one who attended the Philadelphia convention could have believed that slavery was "temporary" in the South.

The Proslavery Compact

The convention's last substantive action on slavery-related matters concerned the fugitive slave clause. The Committee of Detail had reported the clause with the language "No person legally held to service or labour in one state escaping into another shall . . . be discharged from such service or labour." The convention substituted the term "under the laws thereof" after the word state for the term "legally." The delegates made this change "in compliance with the wish of some who thought the term [legal] equivocal, and favoring the idea that slavery was legal in a moral view." ⁶⁵ This was a minor victory for those who were squeamish about slavery, but it had no practical effect.

This final compromise over the wording of the fugitive slave clause was an entirely appropriate way to end discussion of slavery at the convention. Throughout the convention, the delegates had fought over the place of slavery in the Constitution. A few delegates had expressed moral qualms over slavery, but most of the criticism had been political and economic. Northerners opposed representation for slavery because it would give the South a political advantage; Virginians opposed the slave trade, at least in part, because it would undermine the value of their excess slaves. The initial reaction to the fugitive slave clause typified this. When Pierce Butler and Charles Pinckney first proposed it, James Wilson complained, "This would oblige the Executive of the State to do it, at public expense." ⁶⁶ The costs Wilson worried about were more financial than moral.

The word "slavery" was never mentioned in the Constitution, yet its presence was felt everywhere. The new wording of the fugitive slave clause was characteristic. Fugitive slaves were called "persons owing service or Labour," and the word "legally" was omitted so as not to offend northern sensibilities. Northern delegates could return home asserting that the Constitution did not recognize the legality of slavery. In the most technical linguistic sense they were perhaps right. Southerners, on the other hand, could tell their neighbors, as Charles Cotesworth Pinckney told his, "We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before." ⁶⁷

Indeed, the slave states had obtained significant concessions. Through the three-fifths clause they gained extra representation in Congress. Through the electoral college their votes for President were far more potent than the votes of northerners. The prohibition on export taxes favored the products of slave labor. The slave trade clause guaranteed their right to import new slaves for at least twenty years. The domestic violence clause guaranteed them federal aid if they should need it to suppress a slave rebellion. The limited nature of federal power and the cumbersome amendment process guaranteed that, as long as they remained in the Union, their system of labor and race relations would remain free from national interference. On every issue at the convention, slaveowners had won major concessions from the rest of the nation, and with the exception of the commerce clause, they had given up very little to win these concessions. The northern delegates had been eager for a stronger Union with a national court system and a unified commercial system. Although some had expressed concern over the justice or safety of slavery, in the end they were able to justify their compromises and ignore their qualms.

At the close of the convention, two delegates, Elbridge Gerry of Massachusetts and George Mason of Virginia, explained they could not sign the document in part because of slavery-related issues. But their objections were not grounded in moral or philosophical opposition to slavery; rather, like the arguments of those delegates who ultimately supported the compromises over slavery, the objections of Gerry and Mason were practical and political. Gerry objected to the three-fifths clause because it gave the South too much political power, at the expense of New England. Mason opposed allowing the slave trade to continue, because "such importations render the United States weaker, more vulnerable, and less capable of defense." ⁶⁸

During the ratification struggles, others would take more principled stands against the compromises over slavery. A New Yorker complained that the Constitution condoned "drenching the bowels of Africa in gore, for the sake of enslaving its free-born innocent inhabitants." In New Hampshire, Joshua Atherton opposed ratification because it would make all Americans "consenters to, and partakers in, the sin and guilt of this abominable traffic." A Virginian thought the slave trade provision was an "excellent clause" for "an Algerian constitution: but not so well calculated (I hope) for the latitude of America." ⁶⁹

It was more than just the slave trade that northern antifederalists feared. Three opponents of the Constitution in Massachusetts noted that the Constitution bound the states together as a "whole" and "the states" were "under obligation . . . reciprocally to aid each other in defense and support of every thing to which they are entitled thereby, right or wrong." Thus, they might be called to suppress a slave revolt or in some other way defend the institution. They could not predict how slavery might entangle them in the future, but they did know that "this lust for slavery, [was] portentous of much evil in America, for the cry of innocent blood, . . . hath undoubtedly reached to the Heavens, to which that cry is always directed, and will draw down upon them vengeance adequate to the enormity of the crime." ⁷⁰

The events of 1861–1865 would prove the three Massachusetts antifederalists of 1788 correct. Only after a civil war of unparalleled bloodshed and three constitutional amendments could the Union be made more perfect, by finally expunging slavery from the Constitution.

Paul Finkelman is the Chapman Distinguished Professor of Law at the University of Tulsa College of Law. He is the author of numerous books and articles including Slavery and the Founders: Race and Liberty in the Age of Jefferson (1996), Dred Scott v. Sandford: A Brief History (1997), and An Imperfect Union: Slavery, Federalism, and Comity (reprint ed., 2000).

Notes

¹ William Lloyd Garrison to Rev. Samuel J. May, July 17, 1845, in Walter M. Merrill, ed. The Letters of William Lloyd Garrison (1973) 3: 303. The Liberator, May 6, 1842.

² Wendell Phillips, Can Abolitionists Vote or Take Office Under the United States Constitution (1845), p. 3.

³ [Wendell Phillips], The Constitution A Pro-Slavery Compact; or, Selections from the Madison Papers, 2d ed. (1845), pp. v–vi.

⁴ Max Farrand, ed., The Records of the Federal Convention of 1787, rev. ed. (1966), 1: 561, 2: 415; Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 5 vols. (1987, reprint of 1888 edition), 4: 176. See also Staughton Lynd, "The Abolitionist Critique of the Constitution," in Class Conflict, Slavery, and the United States Constitution: Ten Essays (1967), pp. 159–160.

⁵ Wendell Phillips considered this clause, and the one of Art. IV, sec. 4, to be among the five key proslavery provisions of the Constitution (The Constitution A Pro-Slavery Compact, p. vi).

⁶ Although no slave state would have levied such a tax, a free state like New York, Massachusetts, or Pennsylvania might conceivably have taxed products produced in other states but exported through the harbors of New York, Boston, or Philadelphia.

⁷ Had all fifteen slave states remained in the Union, they would to this day be able to prevent an amendment on any subject. In a fifty-state union, it takes only thirteen states to block any amendment.

⁸ Pinckney quoted in Elliot, ed., Debates, 4: 286.

⁹ Elliot, ed., Debates, 3: 598–599 (Randolph) (emphasis in the original), 4: 286 (Pinckney).

¹⁰ Farrand, ed., Records, 1: 18.

¹¹ In the first Congress, the North had thirty-five representatives, and the South had thirty. However, after the first federal census, the original northern states had fifty-five members of Congress, and the southern states had only forty-four. Had slaves not been counted for congressional representation, the South's members of the House after 1790 would have been only about thirty-four.

¹² Farrand, ed., Records, 1: 20. In 1790 Virginia had a free population of 454,983. The next largest free populations were Pennsylvania, 430,630; Massachusetts, 378,693; and New York, 318,824. Virginia also had 292,627 slaves, whereas the entire North had only 40,089 slaves.

¹³ Farrand, ed., Records, 1: 36-38.

¹⁴ Historians presenting the traditional view include Francis Newton Thorpe, The Story of the Constitution of the United States (1891), p. 131; Max Farrand, The Framing of the Constitution of the United States (1913), p. 108; Charles Warren, The Making of the Constitution (1928), pp. 290–291, 584–586; Clinton Rossiter, 1787: The Grand Convention (1966), pp. 173, 188–189.

¹⁵ Paul Finkelman, "Slavery, The Pennsylvania Delegation, and the Constitutional Convention: The Two Faces of the Keystone State," Pennsylvania Magazine of History and Biography, 112 (1988): 49–72.

¹⁶ Farrand, ed., Records, 1: 201, 205–206, 208; and James H. Hutson, ed., Supplement to Max Farrand's The Records of the Federal Convention of 1787 (1987), pp. 69–70.

¹⁷ Farrand, ed., Records, 1: 486–487. The day before, June 29, Alexander Hamilton had made a similar observation: "The only considerable distinction of interests, lay between the carrying and non-carrying States, which divide instead of uniting the largest States."

¹⁸ Farrand, ed., Records, 1: 516 (from Yates's notes), p. 510 (from Madison's notes).

¹⁹ Ibid., p. 542.

²⁰ Ibid., pp. 560–561, 572.

²¹ Ibid., p. 562.

²² Ibid., pp. 566–567.

²³ Ibid., p. 567.

²⁴ Ibid., pp. 580–581.

²⁵ Ibid., pp. 586–588.

²⁶ Ibid., p. 594.

²⁷ Ibid., p. 593.

²⁸ Ibid.

²⁹ Ibid., 597. The two divided delegations were Massachusetts and South Carolina. Half of the Massachusetts delegation opposed this concession to the South, while half the South Carolina delegates were holding out for full representation for slaves.

³⁰ Farrand, ed., Records, 1: 601–602.

³¹ Ibid., pp. 602–603.

³² Ibid., pp. 603–604.

³³ Ibid., p. 605.

³⁴ Ibid., 2: 9–10.

³⁵ Ibid., pp. 13, 15. The negative votes were from Virginia, South Carolina, Georgia, and Pennsylvania.

³⁶ Ibid., 30–32. Roger Sherman, who virtually always voted with the South on important matters, also opposed direct election of the President.

³⁷ Farrand, ed., Records, 2: 56–57. The acceptance of the electoral college based on the House of Representatives took place on July 20, the day after Madison's speech (p. 64). On July 25 the convention reconsidered this vote. Once again Madison argued that the North would have an advantage in a popular election, although here Madison did not specifically mention slavery (p. 111).

³⁸ Ironically, this antidemocratic system that Madison ultimately supported subsequently had a major impact on his career. Thomas Jefferson's victory in the election of 1800, and Madison's elevation to the position of secretary of state and heir apparent, would be possible only because of the electoral votes the southern states gained on account of their slaves. This point is made by Lynd in "The Abolitionist Critique," in Class Conflict, Slavery, and the United States Constitution, 178; and Donald L. Robinson, Slavery in the Structure of American Politics, 1765–1820 (1971), p. 405. Many northerners believed the outcome of the 1812 election would have been different had it not been for the three-fifths clause, although this is probably not the case. However, without the three-fifths clause John Quincy Adams might have had more electoral votes than Andrew Jackson and might have been elected outright in 1824.

³⁹ Lynd, "The Abolitionist Critique," pp. 177–189. All references to numbered sections are to those of the printed report, as reproduced in ibid. That report goes up to Article XXII because there are two articles numbered VI.

⁴⁰ Ibid., p. 220.

⁴¹ Ibid., pp. 220–223.

⁴² Ibid., p. 223.

⁴³ Ibid., pp. 305-308.

⁴⁴ Ibid., p. 306.

⁴⁵ Ibid., pp. 360, 363–364.

⁴⁶ Ibid., pp. 363–365.

⁴⁷ Ibid., 2: 369-370. During the ratification process, proponents of the Constitution would similarly confuse the power to end "the slave trade" after 1808, which Congress had, with congressional power to end the slavery itself, which Congress clearly did not have. James Wilson, for example, told the Pennsylvania ratifying convention that after "the lapse of a few years . . . Congress will have power to exterminate slavery from within our borders" (Elliot, ed., Debates, 2: 484). Since Wilson attended all the debates over this clause, it is impossible to accept this statement as his understanding of the slave trade clause. More likely, he simply made this argument to win support for the Constitution. In New Hampshire a supporter of the Constitution also argued that the slave trade clause gave Congress the power to end slavery. He was quickly disabused of this notion by Joshua Atherton (ibid., 2: 207).

⁴⁸ Ibid., pp. 369–370. On scholarly and popular misunderstandings of Mason's views on slavery, see Peter Wallenstein, "Flawed Keepers of the Flame: The Interpreters of George Mason," Virginia Magazine of History and Biography 102 (April 1994) 229–260, quote at p. 253.

⁴⁹ Farrand, ed., Records, 2: 378 (McHenry's notes).

⁵⁰ Ibid., pp. 370–371.

⁵¹ Ibid., pp. 371–375.

⁵² Ibid.

⁵³ Ibid.

⁵⁴ Ibid., pp. 372–373.

⁵⁵ Ibid., pp. 414–415.

⁵⁶ Ibid., pp. 415–416.

⁵⁷ Farrand, ed., Records, 2: 443. James Hutson, "Pierce Butler's Records of the Federal Constitutional Convention," Quarterly Journal of the Library of Congress, 37 (1980): 64–68; Hutson, ed., Supplement, p. 246.

⁵⁸ Farrand, ed., Records, 2: 449.

⁵⁹ Ibid., pp. 449–452. Luther Martin, The Genuine Information Delivered to the Legislature of the State of Maryland Relative to the Proceedings of the General Convention Lately Held at Philadelphia, in Herbert J. Storing, ed., The Complete Anti-Federalist (1981), 2: 60–61.

⁶⁰ Farrand, ed., Records, 2: 451–453. Other scholars have noted this compromise as well, but most have done so approvingly. Charles Warren believed that slavery was relatively insignificant in the making of the Constitution. Arguing that the morality of the slave trade was unimportant, he wrote that "historians have underestimated the importance of the concession made on commerce by the South." The Making of the Constitution, p. 585. Warren's analysis follows Max Farrand, "Compromises of the Constitution," in Annual Report of the American Historical Association for the Year 1903 (1904), 1: 73–84. The historiography of this issue is discussed in Lynd, "The Abolitionist Critique," in Class Conflict, Slavery, and the United States Constitution.

⁶¹ Farrand, ed., Records, 2: 453–454.

⁶² William W. Freehling, "The Founding Fathers and Slavery," American Historical Review, 77 (1972): 81, quote at p. 84.

⁶³ Freehling has recently reiterated his position, calling mine "cynical." Freehling writes that "I believe Carolinians meant their ultimatum—and that a majority of the delegates so believed." William W. Freehling, The Road to Disunion: Secessionists at Bay, 1776–1854 (1990), p. 584, n. 30. However, Freehling seems to hedge a little, by also noting that Jefferson was "not present to cave in when South Carolina threatened not to join the Union if the Constitutional Convention of 1787 empowered Congress to end the African slave trade immediately." Ibid., p. 135. It strikes me that "cave in" is much more on the mark, and implies that there might have been greater room for tough negotiation or actually opposition to this position.

⁶⁴ Farrand, ed., Records, 2: 371, 373; Freehling, "The Founding Fathers," p. 84.

⁶⁵ Farrand, ed., Records, 2: 601–602, 628 (angle brackets in Farrand); there is no indication who requested this change. A similar change of wording was made in the three-fifths clause at the suggestion of Edmund Randolph, changing the word "servitude" to "service" for describing indentured whites. Randolph argued that the original term "being thought to express the condition of slaves" would be inappropriate, while the new term described "the obligations of free persons" (ibid., p. 607). There was also a little more discussion about the amendment clause as it affected the slave trade, but nothing resulted from this (ibid., p. 629).

⁶⁶ Ibid., p. 443.

⁶⁷ Elliot, ed., Debates, 4: 286.

⁶⁸ Farrand, ed., Records, 2: 633, 640.

⁶⁹ Letters from a Countryman from Dutchess County (letter of Jan. 22, 1788), in Storing, ed., The Complete Anti-Federalist, 4: 62; Elliot, ed., Debates, 2: 203. Essays by Republicus (essay of Mar. 12, 1788), in Storing, ed., Complete Anti-Federalist, 5: 169.

⁷⁰ Consider Arms, Malichi Maynard, and Samuel Field, "Reasons for Dissent," in Storing, ed., Complete Anti-Federalist, 4: 262–263.