The Federal Convention and the Curse of Heaven

By Sean Wilentz

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.

No Property in Man invites fresh debate about the political and legal struggles over slavery that began during the Revolution and concluded with the Confederacy’s defeat. It drives straight to the heart of the most contentious and enduring issue in all of American history. Here is a brief excerpt.

On July 20, the delegates gave their initial approval to what might have been the most decisive triumph on behalf of slavery of the entire convention, made possible by James Madison, and with no direct bearing on the legitimacy of property in man — the creation of the Electoral College. In considering how the new government’s executive ought to be selected, the convention divided between those more and those less impressed by the competence of popular rule, with the latter pressing for less than democratic procedures. But southerners in both groups had an additional reason to oppose popular election of the president, as the existence of slavery would put them as a distinct disadvantage. As slaves “will have no suffrage,” the North Carolinian Hugh Williamson observed, southerners were unlikely ever to win the presidency under a democratic system. Madison, who emphatically wanted “the people at large” to select the president, understood the problem: the southern states, he said, “could have no influence in the election on the score of the Negroes.”

Madison’s solution — an Electoral College apportioned according to the combined representation in the House and Senate — would reverse the slaveholding states’ severe deficit, providing them with an allocation that, although insufficient to carry an election on its own, would in time help assure that four of the first six presidents of the United States were Virginia slaveholders. The delegates approved the idea, six states voting in favor (including two of the three northern states present), three opposed, and one divided. It would take until the convention’s final weeks before the delegates finally worked out an electoral system to their satisfaction, but the three-fifths rule held. No debate in the convention would illustrate more powerfully the contradictions of a slaveholding republic, further strengthening the slaveholding states in order to empower “the people at large” — a “people” which excluded and oppressed the slaves.

Three days later, the convention, on the verge of a much-needed ten-day recess, appointed a five-man Committee of Detail to write a first draft of the Constitution. Like any such draft, it was bound to have enormous influence on the remainder of the convention’s proceedings — and with that in view, Charles Cotesworth Pinckney put the committee and the convention on notice. The debates had now broached the future of slavery, and the three-fifths clause was not nearly enough to calm the South’s and especially the Lower South’s disquiet. And so, Pinckney solemnly warned, should the committee fail “to insert some security to the Southern States against an emancipation of slaves, and taxes on exports,” he would be “bound by his duty to his State” to oppose its report. Pinckney would have been encouraged by the selection of a fellow South Carolinian as the drafting committee’s chairman, but he would also leave no confusion about the seriousness of the stakes over slavery.

John Rutledge, the committee chairman, was in 1787 among the most distinguished public figures in South Carolina and, for that matter, the new republic. The eldest son of a Scots-Irish immigrant physician’s family, he had taken early to the law and studied, as Pinckney would later, at London’s Middle Temple. He then built an exceptional career in politics and government, serving as a delegate to the Stamp Act Congress in 1765, as a delegate to the First and Second Continental Congresses, and as president and then governor of South Carolina. The extraordinary powers that he exercised in the last of these posts earned him the nickname “Dictator John.” An effective speaker, if sometimes overly rapid in his delivery, he proved a formidable presence at the Federal Convention.

Although he owned as many as sixty slaves before the Revolution and was a very wealthy man, Rutledge claimed that he disliked slavery. (His wife, Elizabeth, manumitted her own slaves, while his nieces Angelina and Sarah Grimké would become among the most famous American abolitionists in the 1830s.) But in Philadelphia, Rutledge defended his and his fellow Carolina slaveholders’ interests as aggressively as Pinckney and Pierce Butler did. The other members of the drafting committee proved, on balance, amenable on issues connected to slavery. On August 6, after eleven days of furious labor, the committee reported to the convention a document that one historian has described as a “monument to Southern craft and gall.”

With the matter of representation now decided — or so it seemed — other issues before the delegates tested slavery’s place in the new Constitution. The most difficult of them were related to the new government’s expansive powers over commerce, and southern delegates had special concerns. Because their economy was based on the export of staple crops, southerners wanted to prevent the new government from either laying duties on exports or placing onerous tariffs on imported goods. Some slaveholders, meanwhile, worried that antislavery northerners would attempt to give the new national government the power to restrict or even abolish the importation of slaves from Africa. By restricting imports, they feared, northerners could indirectly advance their emancipationist schemes, cutting off needed new supplies of enslaved Africans while also minimizing the political bonus that slaveholding states would receive under the three-fifths clause.

The South united around an outright ban on export taxes and around a requirement that legislation on maritime commerce, including tariffs, gain two-thirds majorities in both houses of the new national legislature. On the sensitive matter of the Atlantic slave trade, though, the South was divided. Most of the Virginians wanted either to abolish the trade immediately or to empower the new national government to do so. Moved in part by humanitarian idealism and in part by a desire to stabilize the institution, the Virginians were also bolstered by the emerging fact that that their own state already had more slaves than it needed, and that they would stand to profit from selling off their redundant slaves in what would amount to a protected market. The Lower South delegates, however, demanded that the trade be exempted completely from national interference, which would require a special constitutional provision. As far as they were concerned, the slave trade was but an extension of the institution of slavery; if the national government had the authority to curtail, let alone abolish, the trade, slavery itself would be severely endangered. With Virginia opposed to the trade, though, the prospect of its restriction or even its abolition by the national government seemed strong. The Lower South slaveholders would need to convince three states north of Virginia to keep the authority over the trade in the hands of the states.

The Committee of Detail’s report on these matters handed a lopsided victory to the Lower South. The report did not, to be sure, explicitly describe slaves as property; instead, the committee prudently opted for wording similar to that of the three-fifths clause already approved by the convention. The draft did include, however, one provision that barred the new government from imposing export duties and another that required a two-thirds majority in both houses of the legislature on matters concerning maritime commerce. Most glaringly, the report forever barred the government from either prohibiting the Atlantic trade or laying taxes or duties on imported slaves (described obliquely as “such Persons as the several States shall think proper to admit”). On the Atlantic slave trade as well as on slavery in the existing states, the new government would have no more power than the existing Confederation government, which was to say none at all.

As the Committee of Detail did not keep an official record of its proceedings, its work must be reconstructed from a handful of surviving notes and drafts, some of them incomplete and all of them in the hand of one of only three committee members: Rutledge, Edmund Randolph of Virginia, and James Wilson of Pennsylvania. These scrappy materials make it clear that Rutledge and Randolph, not surprisingly, were chiefly responsible for the report’s provisions related to slavery. Both were ardently committed to the provision requiring a supermajority on navigation laws. Rutledge was the more insistent of the two about banning federal interference with the slave trade (about which Randolph would later change his mind). But Randolph, chosen instead of the far more formidable Virginian James Madison, would prove pliable enough for Rutledge’s purposes on the committee.

Given James Wilson’s antislavery views, the two New England committeemen were crucial to the southerners’ plans on slavery. Oliver Ellsworth of Connecticut, a strong proponent of strictly circumscribing federal power, eventually proved a staunch ally of the Lower South over the Atlantic slave trade. The matter is only conjectural, but it seems plausible and even likely that he and Rutledge reached some sort of agreement concerning the committee report’s slavery provisions — which may, in turn, have marked the beginning of what would soon become a fateful alliance between New England and the Lower South.

The second New Englander, Nathaniel Gorham of Massachusetts, the only non-lawyer on the committee, would later speak out against the supermajority requirement for navigation laws, but he would play an essential role in extending a ban on national abolition of the Atlantic slave trade. Based on those later alignments, one constitutional scholar has reasonably suggested that Rutledge, alongside his ally Randolph, had an opening to create a three-to-two and possibly a four-to-one majority on matters concerned with slavery, leaving James Wilson to hold his tongue, go along with the committee’s report, and oppose specific measures as they came before the convention.

Far murkier is the degree to which Rutledge may have fashioned the committee report’s provisions on slavery as part of a deeper strategy to forestall objections inside the convention. The report certainly advanced, to the fullest extent possible, the protections to slavery desired by the Lower South at this point in the convention. But with Randolph agreeing to a ban on regulating the Atlantic slave trade, did Rutledge think he might embarrass the Virginia delegation, which was hostile to the trade? More craftily, did Rutledge truly support the supermajority provision as fervently as Randolph did, or was he envisaging it as a bargaining chip to get some of the northern delegates to go along with the Lower South on the Atlantic trade? It is tempting to read the sources in this way, projecting backwards from subsequent outcomes and ascribing intentions accordingly, as if everything turned out precisely as Rutledge had planned. But that logic is obviously flawed. It seems safer to say that Rutledge — goaded by Pinckney, in conjunction with Randolph, and with vital help from the New Englanders — simply pressed the Lower South’s interests as hard as he could, on all fronts, with the hope of eventually winning as close to everything as possible. What soon became perfectly clear was that neither Pinckney’s bombast nor the report’s staunchly proslavery stance had overawed opposition either from northerners or, on the Atlantic slave trade, from the Virginians. Indeed, some irate northern delegates now believed that all bets were off regarding issues connected to slavery — and at their earliest convenience, when the convention took up the report’s section on representation, two of them exploded. Rufus King of Massachusetts denounced the three-fifths clause which he had earlier supported — “a most grating circumstance to [my] mind,” he said — and explained that he had gone along only because he thought it might lead to a readiness on the part of the South to strengthen the national government. The committee’s report had ruined those hopes, not least its provision allowing an unlimited importation of slaves, which would further increase the slave states’ political power and increase the likelihood of foreign invasion and domestic insurrection. While he doubted he could agree to the committee’s slave trade provision under any circumstances, King concluded that unless exports were made taxable, the three-fifths provision would have to be discarded.

Protesting King’s remarks, Roger Sherman of Connecticut — who despite his antislavery opinions was now emerging as a steadfast New England ally of the Lower South — allowed that the slave trade was “iniquitous” but insisted that the issue of representation could not be reopened, having already occasioned “much difficulty & deliberation.” Several delegates, including James Madison, then tried to change the subject, but Gouverneur Morris would not let them, and he rose to deliver what would prove to be the most powerful antislavery speech of the entire convention. Morris moved that, in light of the committee’s draft constitution, the three-fifths rule be stricken and that only free persons be counted toward apportioning representation. “Never,” he proclaimed, would he “concur in upholding domestic slavery,” that “nefarious institution” based on “the most cruel bondages” — “the curse of heaven on the States where it prevailed.” Giving extra representation based on the number of slaves rewarded “the inhabitant of Georgia and S.C. 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.” The Committee of Detail, by proposing unrestricted importation of slaves, was apparently trying to foster and not merely shield slavery, actively encouraging the Atlantic slave trade “by an assurance of having [the slaveholders’] votes increased in the National government.”

The northern dissenters were certainly impressive. Rufus King, at age thirty-two — handsome, well educated, and rich in voice — was one of the youngest delegates at the convention, but he was well embarked on a political career, having served in the Massachusetts state assembly for three terms and, with distinction, in the Confederation Congress from 1784 to 1787. In 1785, he returned to a proposal advanced by Thomas Jefferson the previous year, and only barely defeated, that would have banned slavery in all of the western territories in 1800; King’s version called for slavery’s immediate exclusion in the territories north of the Ohio River, but it too failed. King’s speech to the convention, though, was in no way explicitly antislavery, offering instead a detached defense of broad sectional interests.

Gouverneur Morris, who had already done so much to anger the Lower South delegates, also had an established antislavery record. A blunt and brilliant man with a fearsome wit and a well-deserved reputation as a rake, Morris came from a New York family of great landed wealth and power. (He also walked on a wooden pegleg, the result, he claimed, of a carriage accident seven years earlier which quite likely was in fact an escape from an amorous adventure.) As a delegate to the New York constitutional convention in 1777, he had proposed, unsuccessfully, an article favoring abolition, by which he made clear he meant gradual abolition. At the Federal Convention, Morris was known for his intense distrust of popular democracy and support for a strong national government; his speech on the slave trade, for all of its anti- slavery outrage, contained no practical suggestion that even hinted at emancipation. But both King and Morris made clear that the proslavery portions of the Committee of Detail’s draft had outraged at least some of the northerners; and Morris now confronted the slaveholders directly with the kind of moral repugnance that was driving the northern emancipationists.

That outrage, though, quickly proved unavailing. Formidable as King and Morris were, the convention defeated Morris’s motion by a margin of ten states to one, loudly reaffirming the three-fifths ratio. John Rutledge and Edmund Randolph had new reason to be confident that their draft constitution’s slavery provisions would stand. Yet the southern gall in the draft remained offensive to many of the Middle States northerners — and, with respect to the Atlantic slave trade provision, to some important Virginia slaveholders as well. More outbursts would follow, leading to a debate that became snagged on the issue of property in man.