And so, a periodic census became a crucial pivot.
The Virginia Plan made no provision for a census or reapportionment, nor was a census mentioned specifically in the committee of five's report. While a census might seem tangential to a plan of domination, it was, it fact, central to the slaveholders' overall plan of attack. The South, with no means of obtaining immediate legislative control under any existing plan of apportionment, was willing to cede short-term power over the government to the North in order to obtain a dominant position as population trended southward. For the southern delegates, then, implementation of a periodic national census, conducted as quickly and as frequently as possible, was vital. They would further insist, of course, that the results be used as a basis for reapportionment of seats in the legislature.
On the other hand, for northern delegates, whose control over the legislature would disappear as the nation's demographics changed, opposition to a national census or, if a census were inevitable, ensuring that it occurred as far down the road and as infrequently as possible, was of equal importance. (The North could achieve the same end by enacting a provision that left the means and timing of the census to the legislature. Since Congress was to be dominated initially by the northerners, a recounting of population might either be put off indefinitely or conducted under rules that would underrepresent the South.)
To both northern and southern delegates, then, the question of the census was intimately tied to slavery, and the two questions would become blurred in debate.
As soon as the vote on apportionment had been completed, Randolph moved "that in order to ascertain the alterations in the population & wealth of the several States [the two criteria specified in section two] the Legislature should be required to cause a census, an estimate to be taken with in one year after its first meeting; and every years thereafter—and that the Legislre arrange the Representation accordingly." Although Randolph left the number of years between censuses blank, as his later remarks made clear, he intended the period to be very short indeed.
Gouverneur Morris countered for the North. He opposed a census entirely, he said, "as fettering the Legislature too much. Advantage may be taken of it in time of war or the apprehension of it, by new States to extort particular favors." Morris was extremely adept at rationalizing a position, but trying to justify not knowing how many people lived in the United States strained even his capabilities. "If the mode was to be fixed for taking a census, it might certainly be extremely inconvenient," he added, without indicating just what "inconvenient" meant, "and if unfixed the Legislature may use such a mode as will defeat the object: and perpetuate the inequality."
Once he had declared himself an enemy of inequality, he once again proposed an unequal role for any new states from the West. He "dwelt much on the danger of throwing such a preponderancy into the Western Scale, suggesting that in time the Western people wd. outnumber the Atlantic States." Morris said that he "wished therefore to put it in the power of the latter to keep a majority of votes in their own hands."
Finally, addressing southern fears that, without a census, the North would simply keep control of the legislature, even if the South had more people, Morris noted that "it was objected . . . that if the Legislre are left at liberty, they will never readjust the Representation." He then "admitted that this was possible; but he did not think it probable unless the reasons agst a revision of it were very urgent & in this case, it ought not to be done."
Morris made no attempt to explain why a census would "fetter the legislature." As to his call for unity, men like Rutledge would never have succumbed to a transparent ploy that asked the planters to simply trust the North to do the right thing. Nor would the southerners accept an appeal to the Atlantic states to stick together against those interlopers from the West who would try to take advantage of real Americans. Predictably, the southern delegates did little more than scoff at Morris's pronouncement and discussion of the census was put off until the next morning.
The next day, July 11, was one of the most important of the entire four months.5
As the proceedings opened, Sherman opposed a census, and just as quickly Mason supported one, responding directly to Morris's argument. "According to the present population of America, the Northn. part of it had a right to preponderate, and he could not deny it. But he wished it not to preponderate hereafter when the reason no longer continued. From the nature of man we may be sure, that those who have power in their hands will not give it up while they can retain it . . . If the S. States therefore should have 3/4 of the people of America within their limits, the Northern will hold fast the majority of Representatives. 1/4 will govern the 3/4. The S. States will complain: but they may complain from generation to generation without redress."6
Mason then added, anticipating his later rejection of the plan, "Unless some principle . . . which will do justice to [the Southern states] hereafter shall be inserted in the Constitution . . . he must declare he could neither vote for the system here nor support it in his state."
Hugh Williamson of North Carolina agreed with Mason and "was for making it the duty of the Legislature to do what was right & not leaving it at liberty to do or not do it." He followed with a motion that "a census shall be taken of the free white inhabitants and 3/5 ths. of those of other descriptions on the 1st. year after this Government shall have been adopted and every year thereafter; and that the Representation be regulated accordingly."
An annual census that included slaves appealed to Randolph and he suggested filling in the blank in his motion with that interval. He also noted that the first apportionment of sixty-five seats was only a guess and that "it placed the power in the hands of that part of America, which could not always be entitled to it." He added that "this power would not be voluntarily renounced; and that it was consequently the duty of the Convention to secure its renunciation when justice might so require; by some constitutional provisions."
After Randolph had taken his seat, "Mr. Butler & Genl. Pinckney insisted that blacks be included in the rule of Representation, equally with the Whites: and for that purpose moved that the words 'three fifths' be struck out." From the census, the two South Carolinians had turned the debate into a referendum on the apportionment of slaves. The convention would succeed or fail on the outcome.
Elbridge Gerry was quick to assert "that 3/5 of them was to say the least the full proportion that could be admitted," and Gorham pointed out that "this ratio was fixed by Congs. as a rule of taxation."
Gorham, as had Paterson the previous day, asked whether or not the South considered slaves human beings in the same sense as whites. It was a sentiment, he observed, that seemed to shift depending on what measure was being considered. " [When the rule of taxation was adopted] it was urged by the Delegates representing the States having slaves that the blacks were still more inferior to freemen. At present when the ratio of representation is to be established, we are assured that they are equal to freemen. The arguments on ye. former occasion had convinced him that 3/5 was pretty near the just proportion and he should vote according to the same opinion now." Gorham was not himself characterizing slaves as human beings, but simply reminding the southerners of their definition, pointing out they could not have it both ways.
South Carolinians, Butler quickly assured the convention, did not consider blacks equal to whites, simply equally valuable, and that should be the basis of apportionment. He "insisted that the labour of a slave in S. Carola. was as productive & valuable as that of a freeman in Massts., that as wealth was the great means of defence and utility to the Nation they were equally valuable to it with freemen; and that consequently an equal representation ought to be allowed for them in a Government which was instituted principally for the protection of property, and was itself to be supported by property."
But Mason was having none of it. Blacks might have some value, be "useful to the community at large . . . as they raised the value of land, increased the exports & imports . . . [so] they ought n
ot to be excluded from the estimate of Representation," but never, ever to be thought of as equal.
Mason's comments were more than a mere disagreement over to just what degree slaves were property. To this point, the planters had spoken with one voice on any issue regarding slavery, but here Mason, for the first time, took a position against his fellow slaveholders, one of the first signs that the slave states might not be a monolithic bloc, that the interests of South Carolina and Virginia might turn out to be quite different.7 This exchange was a preview of the tripartite division—North, Upper South, and Lower South—that was to become critical in the weeks ahead.
Williamson then returned to Gorham's point and reminded the New Englander that "if the Southn. States contended for the inferiority of blacks to whites when taxation was in view, the Eastern States on the same occasion contended for their equality." The North could not have it both ways either.
This was the great irony in all the debates that led to the three-fifths rule— southerners, who insisted that blacks were property, had to assert that they were at least partly people, and northerners, who regularly denounced the enslavement of their fellow human beings, had to acknowledge blacks as at least partly property.
Williamson concluded that "he did not however either then or now, concur in either extreme, but approved of the ratio of 3/5." So did the convention, at least for the moment. Butler's motion to count blacks equally with whites was defeated 7-3, only South Carolina, Georgia, and Delaware voting in favor.8
The rejection of Butler's motion did not end the discussion of how to apportion slaves. With the census in the background—Gouverneur Morris briefly resurrected his "fettering the legislature" argument—debate turned to the issue of apportionment by wealth. Morris asked that "if slaves were to be considered as . . . wealth, then why is no other wealth but slaves included?" Morris added that "his great objection was that the number of inhabitants was not a proper standard of wealth."
Morris was on firmer ground here and had homed in on the critical weakness of the planters' argument. Butler and General Pinckney, in using wealth as a stalking-horse for slaves, simply applied a standard to measure wealth that suited that end. But what was the correct standard of determining wealth? Would it be fixed or changing? And, most of all, who would decide? Would it be fixed or changing? And, most of all, who would decide?
Wealth could not have been simply equivalent to population—if it were, population alone would have sufficed. If wealth were not defined by population, the only way the planters could have rebutted Morris's question as to why no other form of wealth was included but slaves was to establish that slaves were a unique and extremely pure form of wealth, and they would have had to do so without admitting that slaves were human.
Rutledge first tried to dodge the question, then to work it in through the back door. Although he "contended for the admission of wealth in the estimate by which Representation should be regulated," he claimed that his reason was "the Western States will not be able to contribute in proportion to their numbers; they shd. not therefore be represented in that proportion."9 Rutledge then returned to the supposed subject of the debate, which had gotten a bit lost, and called for a census to apportion congressional seats "according to the principles of wealth & population."
But Rutledge was not going to slip in apportionment-by-wealth so easily. Sherman thought that population was the best measure of wealth; George Read, one of the Delaware delegates, used Morris's "don't fetter the legislature" argument; James Wilson said that he "considered wealth as an impracticable rule"; and Gorham insisted that there was no way to set a fair standard. Even Madison weighed in, giving a long and scholarly discourse against a proposal that had no chance of passage anyway.
The convention refused even to bring Rutledge's motion to a vote, and the first half of Williamson's motion as to taking a census of the free inhabitants passed easily. The convention then moved to consider the second half of the motion, counting three-fifths of slaves for apportionment. If it passed as a part of the census, it would become de facto part of the formula for representation.
The session was nearing adjournment and only five delegates spoke, all of them northerners and nationalists. They let the slaveholders know that, although three-fifths of their "unique species of property" might be counted for apportionment—and taxation—that was the absolute limit and it was as an accommodation, nothing more. Gorham for example, "recollected that when the proposition of Congs. for changing the 8th. art: of Confedn. was before the Legislature of Massts. the only difficulty then was to satisfy them that the negroes ought not to have been counted equally with whites instead of being counted in the ratio of three fifths only."
Wilson went further still. He "did not well see on what principle the admission of blacks in the proportion of three fifths could be explained. Are they admitted as Citizens? then why are they not admitted on an equality with White Citizens? are they admitted as property? then why is not other property admitted into the computation? These were difficulties however which he thought must be overruled by the necessity of compromise."
Gouverneur Morris saved the most strident response for last. He was "compelled to declare himself reduced to the dilemma of doing injustice to the Southern States or to human nature, and he must therefore do it to the former."
The vote to count three-fifths of the slaves in the census for the purpose of reapportionment was defeated 6-4- The yeas and nays divided along sectional lines, except that Connecticut voted for the motion, seeing a three-fifths compromise as the only path to general acceptance, and South Carolina, still holding out for full apportionment of slaves, voted against. The convention then easily approved a census during the first year that the legislature sat and a period between censuses at fifteen years. A motion to add the words "at least" be fore "fifteen years" was defeated.
The final vote of the day was on the entire resolution, each section of which had just been approved. Every state voted no.
* Again explaining why tiny Georgia consistently voted with the "large state" bloc.
11. SIXTY PERCENT OF A HUMAN BEING
July 12, 1787, was an infamous day in the history of America, the date on which the delegates to the Philadelphia convention irrevocably agreed to include the three-fifths clause in the new Constitution. As the record of the previous weeks makes clear, the agreement on how slaves would be counted for apportionment was simply practical politics. Not that the delegates were unaware of the ethical implications of the bargains into which they had entered. John Dickinson wrote in his notes on July 9, "Acting before the World, What will be said of this new principle of founding a Right to govern Freemen on a power derived from Slaves . . . themselves incapable of governing yet giving to others what they have not. The omitting the Word will be regarded as an Endeavour to conceal a principle of which we are ashamed."1
Because the issues were so critical, the July 12 session was also among the most contentious since the delegates convened. The opening volley was fired as the session opened, with Gouverneur Morris seeking to exploit the rift between South Carolina and Virginia that had surfaced the day before. With a wink to Rutledge and his colleagues, he "moved to add to the clause empowering the Legislature to vary the Representation according to the principles of wealth & number of inhabts. a 'proviso that taxation shall be in proportion to Representation.' "2
The taxation issue was vital. South Carolina rice plantations were immensely profitable and South Carolina slaves, as any planter was quick to point out, were the sole reason for those profits. Virginia slaves, by contrast, were far less productive growing soil-killing tobacco. Morris knew that all four members of the South Carolina delegation would therefore be willing to accept the two-fifths more in tax assessments for the two-fifths more in apportionment that a full counting of slaves would entail. Virginia could not afford that exchange. Mason, in the previous day's session, had made it clear that Virginians would not allow themselves to be fully taxed on their 280,
000 slaves, although he did not phrase it in those terms. The colonel asserted that he "could not however regard [slaves] as equal to freemen and could not vote for them as such." Mason "added, as worthy of remark, that the Southern States have this peculiar species of property, over & above the other species of property common to all the States."
Morris
Butler ignored Mason and sided with Morris. He admitted "the justice of Mr. Govr. Morris's motion," and "contended again that Representation Sd.. be according to the full number of inhabts. including all the blacks."
Mason countered once more, also admitting "the justice of the principle," but added that he "was afraid embarrassments might be occasioned to the Legislature by it." Virginia against South Carolina; Mason against Butler—vying to gain the support of Gouverneur Morris and Pennsylvania. For many of the delegates, watching two of the largest individual slaveholders at the convention competing with compliments for the allegiance of a man whose own comments about slavery—and slaveholders—had never at all been complimentary, must have been fascinating.
Morris, who could wedge himself into the narrowest rhetorical opening, immediately moved to exploit his advantage. He "admitted that some objections lay agst. his motion, but supposed they would be removed by restraining the rule to direct taxation. With regard to indirect taxes on exports & imports & on consumption, the rule would be inapplicable."
Direct taxes—based simply on population—would hit each state proportionally and take in the 280, 000 slaves in Virginia. Taxes on imports—on which the planters relied for all the fineries of aristocratic life—and exports— on which they relied even more to give them the wherewithal to purchase those fineries—would encumber the agrarian South, particularly the Lower South, far more than the self-sufficient North. By taking import and export taxes off the table with respect to this provision, Morris was eliminating a possible area of accord between Virginia and South Carolina. But in doing so, he had also for the first time introduced the incendiary notion of export taxes into the debates.
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