The Federal Convention and the Curse of Heaven

Americans revere the Constitution even as they argue fiercely over its original toleration of slavery. Some historians have charged that slaveholders actually enshrined human bondage at the nation’s founding. The acclaimed political historian Sean Wilentz shares the dismay but sees the Constitution and slavery differently. Although the proslavery side won important concessions, he asserts, antislavery impulses also influenced the framers’ work. Far from covering up a crime against humanity, the Constitution restricted slavery’s legitimacy under the new national government. In time, that limitation would open the way for the creation of an antislavery politics that led to Southern secession, the Civil War, and Emancipation. Here is a brief excerpt from No Property in Man: Slavery and Antislavery at the Nation’s Founding, Wilentz’s radical reconstruction of the founders’ debate over slavery and the Constitution.

On July 12, 1787, seven weeks into the Federal Convention’s deliberations, Charles Cotesworth Pinckney declared “that property in slaves should not be exposed to danger under a Gvt. instituted for the protection of property.” The other delegates agreed with Pinckney about protecting property, but they differed over how much to protect slavery. James Madison had sensed a gathering conflict, and two days later he concluded that the chief struggle inside the convention was not between large states and small states “but between the N. & Southn. States” over “the institution of slavery & its consequences.”

It is easy to understand why historians have contended that Pinckney and his allies prevailed in that struggle, because in several respects they did. On the issue of representation, the slaveholders secured the three-fifths clause, which linked slaveholding to political power in the House of Representatives and the Electoral College and would affect the outcome of major political developments for decades to come. They also won a prohibition of national duties on exports, to the obvious advantage of their rural export economy. The delegates from the Lower South extracted a ban on national abolition of the trade for twenty years — a period, we now know, when South Carolina and Georgia imported more slaves from Africa than during any previous twenty-year period. (The Lower South also evidently hoped that the twenty-year delay would help prevent later abolition of the trade.) In the closing days of the convention, the slaveholders won a so-called fugitive slave clause that backed their claims to runaways who had escaped to states where slavery either had been abolished or was in the process of being abolished. And because the new national government tolerated slavery in the states where it existed, the numerous provisions with potential implications for slavery — notably the clause that obliged the national government to suppress domestic violence — reinforced the slave- holders’ regime.

In hindsight, the slaveholders’ victories can look utterly one-sided and forbidding, just as northern critics and southern supporters of the Constitution at the time claimed they were. Judging from what we now know about what happened in Philadelphia, though, the Constitution’s proslavery features appear substantial but incomplete. Above all, the convention took care to prevent the Constitution from recognizing what had become slavery’s main legal and political bulwark during the northern struggles over emancipation, the legitimacy of property in man. While they had no choice in the moment but to tolerate and even protect slavery where it existed, they would prepare for a nation in which there was no slavery, which would mean refusing to validate slavery’s legitimacy in the Constitution. And during the decades to come, that exclusion proved the Achilles’ heel of proslavery politics.

Fights over slavery and property would lie at the heart of the prolonged national political struggle over slavery that, seventy years later, brought southern secession, the Civil War, and emancipation. The fights originated in 1787, less than three weeks after the convention assembled, during the delegates’ protracted debates over representation.

On June 11, 1787, Charles Cotesworth Pinckney’s fellow South Carolinian Pierce Butler told the convention that “every state ought to have its weight in the national council” proportional to its wealth.4 Butler, like Pinckney, was a preeminent Carolina planter, but he had a very different personality. The third son of an Irish baronet, he had arrived in America in 1767 as a commissioned officer in the British army and served in the 22nd Regiment at the Boston Massacre, then sold his commission in 1773 and married into a prominent Carolina plantation family. After serving as an adjutant general in the patriot army during the Revolution, he recovered a fortune that had been destroyed in the war and went on to become one of the new nation’s largest slaveholders and wealthiest men. Personally popular but with an authoritarian streak and a fondness for vituperation, Butler would in time own 500 slaves who worked more than 1,000 acres of cotton and rice in South Carolina. (An absentee master, he established a summer home in Philadelphia, where he would end up spending most of his days, living in sumptuous comfort.) Although he harbored private doubts about slavery, and especially about the inhumanity of the Atlantic slave trade, Butler, like Pinckney, would be an unflagging champion of his class at the Federal Convention.

Butler’s remarks aimed to advance the slaveholders’ interest, but they reflected the general view inside the convention that, as James Madison remarked, “the primary objects of civil society are the security of property and public safety.” Because the framers, as the historian John Hope Franklin observed, were “dedicated to the proposition that ‘government should rest on the dominion of property,’” it followed for most delegates that they would have to give slavery, the South’s peculiarly valuable form of property, some sort of consideration under the Constitution. Some delegates if not most came to Philadelphia clearly understanding as much; Rufus King of Massachusetts, for one, said that he “had always expected that as the Southern States are the richest, they would not league themselves with the Northrn unless some respect were paid to their superior wealth,” which meant in considerable part their wealth in slaves. How much respect, though, would the delegates pay to property in humans, as created and regulated by state laws? How much would slavery affect what Butler called each state’s “weight in the national council”? And how much sanction, if any, would the convention give to slavery in national law?

Divisive and convoluted debates over representation in the new national Congress consumed the convention from the end of May until the middle of July. On June 11, the delegates had advanced as far as rejecting the principle that each state ought to have the same number of representatives in the lower house, in favor of “some equitable ratio of representation.” Roger Sherman of Connecticut — implying that he saw nothing equitable about property in man — backed a formula based on “the respective numbers of free inhabitants.” Pierce Butler, joined by his fellow South Carolinian John Rutledge, countered with a proposal based directly on the states’ relative wealth, or what Rutledge called “quotas of contribution,” which implied counting the full value of slaves toward representation. James Wilson of Pennsylvania intervened with a compromise that would apportion representation on the basis of the number of each state’s “white & other free Citizens,” including women, children, and indentured servants, and “three fifths of all other persons,” excluding “Indians not paying taxes.”

Wilson explained that he had taken the three-fifths ratio from an agreement reached four years earlier in the Confederation Congress over an amendment to the Articles of Confederation about assessing national taxation. (The amendment, its ratio a compromise proposed by James Madison, had passed the Congress but failed to gain the unanimous agreement from the states required to take effect.) Indeed, Wilson had copied that earlier proposal word for word. But referring to slaves as persons was not at all unique to these two examples; notably, an important if unsuccessful land ordinance bill for the territory north of the Ohio River, advanced in the Congress in 1785 by Rufus King (now a convention delegate), referred to slaves as persons “from whom labor or service is lawfully claimed,” thereby lumping them with indentured servants and avoiding acknowledging them as property. And even before the convention formally opened, northern and southern delegates had discussed applying the three-fifths ratio to determine representation.

Behind the proposal lay the assumption that the size of a state’s population was a rough but reliable indication of its wealth and was far easier to measure; but it would provide a middle way between counting only free inhabitants and counting all slaves in apportioning representation. In response, Elbridge Gerry of Massachusetts asked forcefully how slaves, “who were property in the South,” could be counted as persons any “more than the cattle & horses of the North.” The delegates, seemingly untroubled by the contradiction, approved Wilson’s motion by a margin of nine states to two. The decision was not at all a sectional one: the great majority of delegates from the North as well as the South approved the three-fifths proposal without complaint. But the matter would not rest there.

Over the next four weeks, under the pressure of continuing debates about representation and the mechanisms for determining apportionment, the Lower South delegates grew uneasy. On July 2, Charles Pinckney suddenly noted that there was “a real distinction [between] the Northern & Southn. interests,” specifying that North Carolina, South Carolina, and Georgia had a special reliance on rice and indigo production that northern merchants might sacrifice. Pinckney’s older cousin Charles Cotesworth Pinckney then moved that a select committee of one delegate from each state consider anew the issue of representation of both houses of the legislature. Out of that committee’s report came the crucial agreement, known to historians as the Connecticut Compromise, that would base representation in the lower house on population while giving states an equal vote in the upper house. As the convention debated the report, though, Charles Pinckney rose to declare that “blacks ought to stand on an equality with whites” in allocating representation to the lower house, even though he would “agree to the [three-fifths] ratio settled by Congs.” Evidently, the Lower South had become dissatisfied with the three-fifths rule and, though willing to go along, would consider it a major concession.

Proposals by another select committee appointed to allocate seats in the First Congress then caused considerable disputation, as the committee’s computations had taken into account “the number of blacks & whites with some regard to supposed wealth.” The antislavery William Paterson of New Jersey, whose state consistently opposed any representation plan based on population, objected specifically to representation based on slavery, averring that he could consider slaves “in no light but as property” and now charging that by including slaves as persons in deciding representation the convention would encourage the overseas slave trade. Another committee proposed a different allocation for the First Congress, which led to further sectional scuffing. Rufus King, while acceding to the three-fifths rule “for the security of the Southern” states, contended that “no principle” could warrant giving them a majority in Congress; Charles Cotesworth Pinckney replied that the South did not seek a majority but only “something like an equality,” lest the northern states approve commercial legislation that would harm the planters. Hugh Williamson of North Carolina backed up Pinckney, alleging that the northern majority proposed by the latest allocation committee would strive to perpetuate itself and leave the southern interest “extremely endangered.” Finally, the convention approved the committee’s allocation — which would give the states north of Delaware a majority in the House of 35 seats to 30 — by a vote of nine states to two, with South Carolina and Georgia in opposition. At this point in the debate, it should be noted, the southern delegates were describing their sectional “interest” chiefly in terms of warding off unfavorable maritime regulation and commercial policy regarding the planters’ staple crops; the southern interest in slaves and slavery entered in only indirectly, as a means to gain the representation required to protect the planters’ commercial standing. Southern fears of emancipation lay just beneath the surface. That would change very quickly.

The setback over allocations to the First Congress infuriated the Lower South, and the next day, Pierce Butler and Charles Cotesworth Pinckney proposed scrapping the three-fifths rule entirely and counting enslaved blacks “equally with the Whites.” Butler and Pinckney’s plan certainly would have enlarged southern representation, if only slightly, over what the three-fifths ratio provided. In South Carolina, for ex- ample, enslaved persons, according to the 1790 census, accounted for 43 percent of the total population. By that figure, under the three-fifths formula, the state’s representation was entitled to be 43.4 percent greater than it would have been had slaves not been counted at all. Under Butler and Pinckney’s formula, it would have been 72.4 percent greater — enough for the state to expect at least another seat or two in the House.

But Butler and Pinckney’s proposal went nowhere, winning the support only of Georgia and Delaware alongside South Carolina. The wrangling continued. Rufus King expressed fresh misgivings about the three-fifths clause; Roger Sherman urged conciliation. James Wilson, who had originally proposed the ratio, now worried about the inconsistencies in considering slaves as persons for the purposes of assessing their value as property, but he relented, citing “the necessity of compromise.” Gouverneur Morris of Pennsylvania starkly announced that he would not do injustice to human nature and “could never agree to give such encouragement to the slave trade” such as that provided by the three-fifths clause, or indeed any representation based on slaves. The convention then defeated the clause, six states to four, but not especially out of antislavery conviction: South Carolina, evidently holding out for better terms, voted with the majority, as did Delaware and Maryland.

The next day, six southern delegates drew the line, arguing emphatically, in the Virginian Edmund Randolph’s words, “that express security ought to be provided for including slaves in the ratio of Representation,” lest the South reject the Constitution. William R. Davie of North Carolina proclaimed that if the convention did not approve at the very least the three-fifths ratio, “the business [of the convention] was at an end.” Gouverneur Morris tried to call Davie’s bluff and charged that the people of Pennsylvania “will never agree to a representation of Negroes,” but no other northern delegate joined him. Raising the stakes, or perhaps just making a feint, Charles Pinckney reintroduced his cousin’s and Butler’s motion from the day before that whites and blacks be counted equally, calling it “nothing more than justice,” but this time only Georgia and South Carolina assented. Finally, the convention re-approved the three-fifths clause by a vote of six states to two, with two states divided. Once again, the sections were united, as at least one state from New England, the Middle States, the Upper South, and the Lower South voted with the majority.

Although the issue was essentially resolved, continuing disagreement over the clause flared the next day, leading to a disturbing turn. First, the convention, after considerable debate, passed a motion by Elbridge Gerry to base state obligations for direct national taxation on the three-fifths rule, until a proper national census was completed. Then, seeking to bring the convention’s documents into conformity with each other, Edmund Randolph moved that all references to wealth be replaced with the wording of the three-fifths clause. Gouverneur Morris objected: if slaves were indeed property, as the slaveholders assumed, then “the word wealth was right, and striking it out would produce the very inconsistency which it was meant to get rid of.” Morris said he had been pondering the matter deeply, then he fiercely attacked the inflation of southern representation, charging that the South would not be satisfied unless it gained “a majority in the public Councils,” after which it would align with new states to the west, oppress eastern commerce, and instigate a war with Spain to seize control of the Mississippi River. Rather than “attempting to blend incompatible things,” he declared, “let us at once take a friendly leave of each other.” For once, an antislavery northerner spoke of disunion.