The most damning judgment was rendered by Martin's old Princeton classmate Oliver Ellsworth. In a pamphlet issued the following February, he wrote:
The day you took your seat must be long remembered by those who were present You scarcely had time to read the propositions which had been agreed to after the fullest investigation, when without requesting information . . . you opened against them in a speech which held during two days, and which might have continued two months, but for those marks of fatigue and disgust you saw strongly expressed on whichever side of the house you turned your mortified eyes. There needed be no other display to fix your character and the rank of your abilities, which the Convention would have confirmed by the most distinguished silence, had not a certain similarity in genius provoked a sarcastic reply from the pleasant Mr. Gerry.25
Other delegates, however, viewed Martin's speech as a necessary antidote to the power politics of the nationalists and welcomed both the speech and its length. Elbridge Gerry actually thought highly of it and wrote that "the speech, if published, would do him great honor."26 In any case, after Luther Martin finally returned to his seat, the tone of the proceedings had indisputably changed. Madison, with uncharacteristic irritability, said, "Those gentlemen who oppose the Virginia plan do not sufficiently analyze the subject. Their remarks, in general, are vague and inconclusive."27 Even the venerated Franklin was not immune from the testiness that had entered the chamber. Once again too weak to speak, he had read into the record a speech in which he famously ended by moving that "henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business." Other delegates abandoned their usual deference to the aging sage and snapped back.
Luther Martin as a younger man
"Mr. Hamilton & several others expressed their apprehensions that however proper such a resolution might have been at the beginning of the convention, it might at this late day, 1. bring on it some disagreeable animadversions. & 2. lead the public to believe that the embarrassments and dissensions within the Convention, had suggested this measure."28.
By June 30, the convention had sunk into a morass. The two divisions over means of apportionment—population against state, and slave state against free—had not been breached and no side would budge. Madison, however, realized that what seemed to be two issues were actually only one. In fact, Georgia, although the least populous state present, consistently voted with the large states, joining South Carolina, North Carolina, and Virginia, while New York, at least when its full three-man delegation was present, voted with the small. Maryland was divided only because Luther Martin was so fanatically opposed to centralized authority.29
Madison "contended 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 the effects of 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 & small States: It lay between the Northern & Southern, and if any defensive power were necessary, it ought to be mutually given to these two interests."
Madison proposed a solution. "Instead of proportioning the votes of the States in both branches, to their respective numbers of inhabitants computing the slaves in the ratio of 5 to 3, they should be represented in one branch according to the number of free inhabitants only; and in the other according to the whole [number] counting the slaves as if free. By this arrangement the Southern Scale would have the advantage in one House, and the Northern in the other."30
No one liked the idea and the convention ignored Madison's motion.* At the next session, on July 2, Ellsworth once again introduced the notion of voting by state in the second house of the legislature, which failed 5-5, with four of the five southern states voting no and Georgia divided. Sherman had introduced what came to be known as the Connecticut Compromise on June 11 and, ever since, either he or Ellsworth had tried repeatedly (and fruitlessly) to have it debated.
Immediately after the vote, however, Charles Pinckney agreed that the question of equal votes in the Senate was a sectional issue, as Madison had asserted, not one of large states against small. "There is a real distinction between the Northern & Southn. interests. N. Carola. S. Carol: & Geo. in their Rice &Indigo had a peculiar interest which might be sacrificed. How then shall the larger States be prevented from administering the Genl. Govt. as they please, without being themselves unduly subjected to the will of the smaller?"31
If Madison and Pinckney were correct and all the southern states were "large," then none of them would likely agree to a by-state apportionment in one of the two houses of Congress. With resolution appearing hopeless, General Pinckney moved that one representative from each state be appointed to a committee charged with finding a way to break the deadlock. Although most of the delegates, including Madison, thought the convention might be past saving—"We are now at a full stop," lamented Sherman—General Pinckney's motion passed 9-2, with only New Jersey and Delaware voting nay Rutledge, Ellsworth, and Mason were chosen to represent their respective states, although Ellsworth became ill and was replaced by Sherman.
After a recess to celebrate July 4, the committee reported to the convention on July 5 that it had in effect accepted the Connecticut Compromise, allocating votes in the first house one representative for every forty thousand inhabitants and in the second house by state. All money bills would originate in the first house.
Not one delegate spoke in favor of the plan. Even Mason, who had been on the committee, said, "The Report was meant not as specific propositions to be adopted; but merely as a general ground of accommodation. There must be some accommodation on this point, or we shall make little further progress in the work."32
The next days were spent haggling over minutiae. Which clause should be taken up and which should be recommitted? In what order should the clauses be debated? Should certain language remain in the report to be voted on at some unknown later date? A question was raised, tabled in favor of another, then resumed when the second question was tabled in favor of the first. Delegates debated over what to debate. The convention sank deeper and deeper into a parliamentary quagmire. Ultimately, the best the convention could do was appoint a committee of five on July 6, which included Rutledge, Gorham, Randolph, King, and Gouverneur Morris—all big-state nationalists—to try to create a workable formula for apportionment from the one-representative-per-forty thousand-inhabitants rule for the first house.
When this committee had completed its work, slavery sprang out of the bottle. Only then did the real debate begin.
*This, of course, is often called the Great Compromise or the Connecticut Compromise, which Sherman and Ellsworth came up with in the evenings at Mrs. Marshall's Boarding House.
*Votmg was, as in Congress, by state, by majority rule withm each delegation. A tie would be recorded as a state being "divided" on the question. Although twelve states participated in the convention, all twelve were never present and voting at the same time. New York, as noted, did not vote from early July on. New Hampshire's delegation, John Langdon and Nicholas Gilman, did not even arrive until the last week m July. As a result, there was a maximum of eleven votes on any measure, with ten votes all that were available during the crucial mid-July debates on apportionment. Abstentions and states "divided" further decreased the total on a number of measures.
*This is the younger Pinckney. Charles Cotesworth Pinckney will henceforth be referred to as "General Pinckney."
*The following day, Hamilton claimed that he had been misunderstood and that he had never advocated eliminating states entirely.
*This vote can be seen as the beginning of Madison's decline in influence. He was simply far less equipped to succeed in practical negotiations than m propounding a theoretical overview.
10. SLAVERY BY THE NUMBERS: THE MATHEMATICS OF LEGISLATIVE CONTROL
&
nbsp; On July 9, Gouverneur Morris opened the session with the committee of five's report. It was in two brief sections, the first of which dealt with the present; the second with the future. In the first section, the committee, although it had not been asked to do so, provided a state by-state apportionment for the proposed lower house. "In the 1st. meeting of the Legislature the 1st. branch thereof consist of 56. members of which Number, N. Hamshire shall have 2. Massts. 7. R. Id. 1. Cont 4. N. Y. 5. N. J. 3. Pa. 8. Del. 1. Md. 4. Va. 9. N. C. 5. S. C. 5. Geo. 2."1
The skew of representatives to the South was obvious—slave states had been allotted twenty-five of the fifty-six seats.2 That was three seats short of half, although the southern states were thought to have just over a third of the free population. Slaves had been slipped into the apportionment—about 60 percent of the slaves—although no actual agreement yet existed to count slaves at all. The three-fifths number had also been only a theoretical proportion, no more binding than any of the other trial balloons that had come and gone over the preceding weeks.
Roger Sherman immediately protested. He "wished to know on what principles or calculations the Report was founded. It did not appear to correspond with any rule of numbers, or of any requisition hitherto adopted by Congs."
Gorham admitted that the committee had taken some liberties with the agreed-upon formula of one representative for every forty thousand inhabitants. "Some provision of this sort was necessary in the outset," he replied candidly. "The number of blacks & whites with some regard to supposed wealth was the general guide." The words might have been uttered by a delegate from Massachusetts, but the sentiment was pure South Carolina. Rutledge had apparently done his work with in the committee well. Gorham added that another objection to the one for forty thousand rule was that it might allow new states admitted from the western territories to eventually "outvote the Atlantic." These were precisely the sentiments that Gouverneur Morris would voice repeatedly in the coming days.
When Morris and Rutledge realized that the rest of the delegates were not going to simply accept the committee's numbers, they issued a joint motion to table the first section and move on to the second, which provided the legislature the authority to adjust apportionment in the future. The convention agreed without objection to the motion, but Sherman was not ready to let the first section go. He moved to recommit the distribution of seats in the first house to another committee of eleven, one representative per state.
Gouverneur Morris, in a strategic retreat, seconded Sherman's motion, conceding that "the Report is little more than a guess. The Committee meant little more than to bring the matter to a point for the consideration of the House." Randolph, who had also sat on the committee of five, added that he too had, "disliked the report of the Comte, but had been unwilling to object to it." Four members of the committee of five had disavowed its report within minutes of its being presented.
This maneuvering was far too cute for William Paterson. He, like everyone else, knew why the South had received so many seats. "He could," he said, "regard negro slaves in no light but as property. They are not free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, & like other property entirely at the will of the Master. Has a man in Virga. a number of votes in proportion to the number of his slaves? And if Negroes are not represented in the States to which they belong, why should they be represented in the Genl. Govt . . . He was also agst. such an indirect encourageimt. of the slave trade; observing that Congs. in their act relating to the change of the 8 art: of Confedn. had been ashamed to use the term 'slaves' & had substituted a description."
In pointing out that slave states were demanding representation for slaves in the national government, when they specifically refused to grant them equal status in apportioning their own state legislatures, Paterson had raised an objection that no slaveowner could refute. Of equal significance, the foremost champion of the "small states," the man for whom the New Jersey Plan was named, had agreed with Madison, the nationalist, that the most important question regarding the makeup of the legislature was whether or not to count slaves.
Madison's plan for a national government had once again been thrust to the brink. If slaves had been treated only as property, South Carolina and Georgia would most certainly have walked out. (Virginia would have been none too pleased either.) If the South Carolina proposal to count slaves in full had been adopted, the Northern states would have walked out. Madison had no answer, other than to desperately resurrect his proposal that each house of the legislature be based on population, one in which slaves were counted in full, the other in which slaves were not counted at all. The delegates reacted as they had done previously—they ignored him. Butler merely "urged warmly the justice & necessity of regarding wealth in the apportionment of Representation."
William Paterson
At this point Rufus King, although he likely did not know it at the time, framed the terms of two crucial compromises to come. King "had always expected that as the Southern States are the richest, they would not league themselves with the Northn. unless some respect were paid to their superior wealth. If the latter expect those preferential distinctions in Commerce & other advantages which they will derive from the connection they must not expect to receive them without allowing some advantages in return. Eleven out of 13 of the States had agreed to consider Slaves in the apportionment of taxation; and taxation and Representation ought to go together."
The delegates then agreed to recommit apportionment of the lower house to a committee of eleven by a vote of nine to two. Once again Rutledge and Gouverneur Morris were appointed, along with King, Sherman, and Madison.
The new committee's report opened the July 10 session. It had expanded the number of seats from 56 to 65, divided "N. Hamshire by 3. Masts. 8. R. Isl. 1. Cont. 5. N. Y. 6. N. J. 4. Pa. 8. Del. 1. Md. 6. Va. 10. N . C. 5. S. C. 5. Georgia 3."3
Although slaves had been included in this formula as well, Rutledge was not going to be satisfied unless the slave states could control their destiny. Immediately following the reading of the report, he moved to reduce New Hampshire from three seats to two, with General Pinckney seconding.4
King then pointed out that even counting three-fifths of the slaves, the four southernmost states had a population of about seven hundred thousand and had been allotted twenty-three seats, while the New England states with a population of about eight hundred thousand had been granted but seventeen. King added that "he was fully convinced that the question concerning a difference of interests did not lie where it had hitherto been discussed, between the great &small States; but between the Southern & Eastern. For this reason he had been ready to yield something in the proportion of representatives for the security of the Southern. No principle would justify the giving them a majority." King thus became another in the string of delegates to announce that the real division in the nation was slave state/free state.
General Pinckney, again echoing Rutledge, retorted, "The Report before it was committed was more favorable to the S. States than as it now stands. If they are to form so considerable a minority, and the regulation of trade is to be given to the Genl. Government, they will be nothing more than overseers for the Northern States. He did not expect the S. States to be raised to a majority of representatives, but wished them to have something like an equality." This was the first time regulation of trade had been added to the mix. Commerce would form one side of a crucial compromise at the end of August.
The bickering went back and forth until Gouverneur Morris was forced to lament that he "regretted the turn of the debate . . . . the Southern States have by the report more than their share of representation. Property ought to have its weight, but not all the weight."
The vote on reducing New Hampshire's seats from three to two failed, as did similar motions, all by General Pinckney, to increase the representation of North Carolina, South Carolina, and Georgia by one seat each. The convention decided to accept the apporti
onment (with slaves included) nine to two, the only nays from South Carolina and Georgia, both still holding out for slaves to be counted in full.
Agreement on the initial makeup of the lower house was the first concrete achievement of the convention in weeks, but before the delegates had time to congratulate themselves, the second section of the committee of five's report was put on the table.
That section, as reported the previous day, read, "But as the present situation of the States may probably alter as well in point of wealth as in the number of their inhabitants, that the Legislature be authorized from time to time to augment ye. number of Representatives. And in case any of the States shall hereafter be divided, or any two or more States united, or any new States created with in the limits of the United States, the Legislature shall possess authority to regulate the number of Representatives . . . upon the principles of their wealth and number of inhabitants."
Periodic reapportionment was every bit as vital to the slave states as having slaves counted in apportionment. Unless the delegates could be convinced to count slaves in full—an unlikely prospect at best—no other arrangement could prevent a northern majority in the legislature. The North simply had too many people and too many states. What kept the slaveholders in Philadelphia was the conviction that northern dominance would be temporary. An influx of white settlers and their slaves into the existing southern states and the Southwest territories was anticipated with in the next two decades. Once it had occurred, the South could take control.
For the planters, the object became to obtain sufficient controls on governmental authority to protect their interests in the short run, while ensuring that they would be able to take control as soon as the apportionment population turned favorably to the South. If that could be achieved, a strong central government would do just fine, even if the Yankees ran things for a while.* The North simply wanted to retain control, granting concessions where need be, in the hope that, once achieved, legislative dominance might somehow be retained, despite the anticipated population superiority in the South.
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