General Pinckney noticed. While he "liked the idea" of representation by wealth and counting slaves in full—"he thought it so just that it could not be objected to"—he was not as keen on an export tax. The general was "alarmed at what had been thrown out concerning the taxing of exports. S. Carola. has in one year exported to the amount of six hundred thousand Sterling all which was the fruit of the labor of her blacks. Will she be represented in proportion to this amount? She will not.* Neither ought she then to be subject to a tax on it. He hoped a clause would be inserted in the system, restraining the Legislature from taxing Exports."
All of this was moot if a census at acceptable intervals were not specifically written into the plan, as General Pinckney well knew. That was what the real fight was about anyway. He "foresaw that if the revision of the census was left to the discretion of the Legislature, it would never be carried into execution. The rule must be fixed, and the execution of it enforced by the Constitution."
Wilson knew the makings of a compromise when he saw one and leapt in to support it. He "approved the principle, but could not see how it could be carried into execution; unless restrained to direct taxation." Morris gave up export taxes, at least for the moment, and appended the motion to read, "provided always that direct taxation ought to be proportioned to representation." It passed without dissent. Export taxes would return to cause substantial problems the next month.
William Davie, a North Carolina lawyer, decided that he had heard enough. "It was high time now to speak out," he exclaimed. He had hardly opened his mouth in seven weeks. "He saw that it was meant by some gentlemen to deprive the Southern States of any share of Representation for their blacks. He was sure that N. Carola. would never confederate on any terms that did not rate them at least as 3/5. If the Eastern States meant therefore to exclude them altogether the business was at an end."
Perhaps Davie had been napping through the previous speeches, but it was certainly an odd moment for that particular outburst. No one had suggested that slaves be counted as less than three fifths and the distinct possibility remained that they might even be counted equally with whites. Perhaps he thought that any link at all with taxation would force the planters to either spend themselves into bankruptcy meeting their obligations or divest themselves of their slaves. He never did make his point clear. After this speech, William Davie returned to his torpor and his voice was rarely heard again.3 Still, by introducing the threat that slaveowners would walk out and put an end to the entire convention unless slavery were treated with the proper deference, he managed to sharpen the sectional conflict still further.
With Davie back in his seat, the debates returned to substantive matters, and William Samuel Johnson of Connecticut continued the squeeze of the Upper South. He thought "that [wealth and population] resolved themselves into one . . . He concluded therefore that ye. number of people ought to be established as the rule, and that all descriptions including blacks equally with the whites, ought to fall with in the computation."
With momentum in his favor, Gouverneur Morris adopted a more conciliatory tone while remtroducing his stipulation for an indefinite census. "It is in vain for the Eastern States to insist on what the Southn. States will never agree to. It is equally vain for the latter to require what the other States can never admit; and he verily believed the people of Pena. will never agree to a representation of Negroes. What can be desired by these States more than has been already proposed; that the Legislature shall from time to time regulate Representation according to population & wealth."
General Pinckney, while grateful for the sentiment, did not completely trust his new allies from Connecticut and Pennsylvania. He "desired that the rule of wealth should be ascertained and not left to the pleasure of the Legislature; and that property in slaves should not be exposed to danger under a Govt. instituted for the protection of property."
That was perfectly all right with Ellsworth, but counting slaves in full was not. He proposed "that the rule of contribution by direct taxation for the support of the Government of the U. States shall be the number of white inhabitants, and three fifths of every other description in the several States, until some other rule that shall more accurately ascertain the wealth of the several States can be devised and adopted by the Legislature."
Ellsworth's bargain was an agreement to accept three-fifths of the South's slaves for apportionment in return for a rule that the census remain nonspecific. Ellsworth evidently hoped that the Virginians would look more favorably on such a bargain in the face of what Morris and the Carolinians were discussing. But this deal had been rejected before and it was rejected again here. The North, the Virginians knew, would never give up congressional control unless it was forced to, and that could ultimately result in the loss of everything that all the slaveholders had gained at the convention. Randolph responded. "The danger will be revived that the ingenuity of the Legislature may evade or pervert the rule so as to perpetuate the power where it shall be lodged in the first instance."
Randolph then proposed his own version. "In order to ascertain the alterations in Representation that may be required from time to time by changes in the relative circumstances of the States, a census shall be taken with in two years from the 1st. meeting of the Genl. Legislature of the U.S., and once with in the term of every year afterwards, of all the inhabitants in the manner & according to the ratio recommended by Congress in their resolution of the 18th day of Apl. 1783; (rating the blacks at 3/5 of their number) and, that the Legislature of the U.S. shall arrange the Representation accordingly." As an addendum, he "urged strenuously that express security ought to be provided for including slaves in the ratio of Representation."
Randolph "lamented that such a species of property existed. But as it did exist the holders of it would require this security. It was perceived that the design was entertained by some of excluding slaves altogether; the Legislature therefore ought not to be left at liberty."
Ellsworth, unable to get any further, withdrew his motion and seconded Randolph's, and that, more or less, was that. Wilson, who often functioned as the North's lawyer—as his houseguest Rutledge did for the Lower South— tightened the language by proposing that the clause read "that the representation ought to be proportioned according to direct taxation."
With the matter almost closed, Rufus King took the floor and wondered if the North had not just given up too much. "He must be shortsighted indeed who does not foresee that whenever the Southern States shall be more numerous than the Northern, they can & will hold a language that will awe them into justice. If they threaten to separate now in case injury shall be done them, will their threats be less urgent or effectual, when force shall back their demands?"
Rufus King
Then King tried once more to gain a quid pro quo from the Lower South for agreeing to count slaves for apportionment. He again asked that rules for the taking of a census remain undefined, urging that southerners acknowledge that "confidence" must be placed "to a certain degree in every Govt." and that such confidence should extend to "periodical readjustment."
Again a Pinckney countered, this time Charles. He "moved to amend Mr. Randolph's motion so as to make 'blacks equal to the whites in the ratio of representation.' This he urged was nothing more than justice. The blacks are the labourers, the peasants of the Southern States . . . It will also be politic with regard to the Northern States, as taxation is to keep pace with Representation."
Given the choice, the North preferred counting slaves as three-fifths with specified rules for a census more desirable than counting them in full without such rules. After rejecting a northern attempt to set the interval between censuses at twenty years, the census passed with ten-year intervals. Pinckney's motion to include the full number of slaves was defeated, with only South Carolina and Georgia voting in the affirmative.
So three-fifths it was and, after that final vote, the convention adjourned for the day.
Just because a compromise had been reache
d did not mean the sectional division had been dissolved and trust restored. On the next day—Friday the 13th, as it turned out—what began as a housekeeping measure prompted a heated and revealing exchange.
"By common consent," according to Madison, the census provision was once again taken up with the notion of striking out "wealth" from the formula "wealth and number of inhabitants."4 With the three-fifths formula agreed to, "wealth" was now a superfluous and potentially distracting entry.
Still, in order to compute three-fifths of the slaves, all of them had to be counted. Since South Carolina and Georgia had in no way abandoned their desire to have slaves counted in full, a full census of slaves could lead to mischief down the road. It would have been a singular irony if because of the expected migration to the Southwest, counting three-fifths of the slaves allowed slaveholders in the legislature to vote at some point to count all of them, and even perhaps to eliminate the direct taxation provision in the bargain.
Gouverneur Morris rose to speak. "The Southn. Gentlemen will not be satisfied unless they see the way open to their gaming a majority in the public Councils," he said. "It has been said that N.C , S.C , and Georgia only will in a little time have a majority of the people of America... If the Southn. States get the power into their hands, and be joined as they will be with the interior Country, they will inevitably bring on a war with Spam for the Mississippi. He wished to know what security the Northn. & middle States will have agst. this danger.
"There can be no end of demands for security if every particular interest is to be entitled to it. The Eastern States may claim it for their fishery, and for other objects, as the Southn. States claim it for their peculiar objects." If the South could not bend, Morris insisted, "instead of attempting to blend incompatible things, let us at once take a friendly leave of each other."
Pierce Butler replied instantly. The South, he assured the convention, had some concerns of its own. "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."
In this atmosphere of good fellowship, the motion to strike "wealth" passed 9-0.
*She would have, of course, if slaves had been counted in full for apportionment.
12. BALANCING ACT: TWO GREAT COMPROMISES
With the problem of apportionment in the first house solved, the delegates moved on to the seemingly insoluble question of the second house. Ellsworth and Sherman had tried their Connecticut Compromise a number of times with no success, and Madison's suggestion that both houses be based on population, one counting slaves in full, the other not at all, had not even rated debate. Other formulas for proportional representation had likewise been rejected.1 Apportionment of what would become the Senate was a complex problem because of an overlap of three separate issues: sectional divisions were blurred by both the insistence of small northern states to have an equal voice in the legislature and the uncertain status of potential new states in the West.2 The question of terms under which new states would be admitted had emerged during the census debates and had become more dominant as the days progressed.
In his rejoinder to Gouverneur Morris at the end of the July 13 session, Butler had said, "It was not supposed that N. C., S. C. & Geo. would have more people than all the other States, but many more relatively to the other States than they now have. The people & strength of America are evidently bearing South wardly & S. westwdly." Wilson had then added, "The majority of people wherever found ought in all questions to govern the minority. If the interior Country should acquire this majority, it will not only have the right, but will avail themselves of it whether we will or no."
Discussion of new states from the West resumed the next morning. Elbridge Gerry "wished . . . that the attention of the House might be turned to the dangers apprehended from Western States. He was for admitting them on liberal terms, but not for putting ourselves into their hands. They will if they acquire power like all men, abuse it. They will oppress commerce, and dram our wealth into the Western Country. To guard agst. these consequences, he thought it necessary to limit the number of new States to be admitted into the Union, in such a manner, that they should never be able to outnumber the Atlantic States."3 Rufus King seconded Gerry's motion.
Elbridge Gerry
Although they did not mention them specifically, Gerry and King, like Gouverneur Morris, seemed more focused on the Southwest territories below the Ohio, where accepted wisdom dictated that immigration would flow, than on those to the north. Still, why the two delegates from Massachusetts had suddenly become so reticent about expanding the Union was something of a mystery.
Objection to Gerry's motion to limit the number of new states came not from a southerner, but rather from Roger Sherman, who "thought there was no probability that the number of future States would exceed that of the Existing States." Sherman added, "We are providing for our posterity, for our children & our grand Children, who would be as likely to be citizens of new Western States, as of the old States. On this consideration alone, we ought to make no such discrimination as was proposed by the motion."
Gerry snapped back: "If some of our children should remove, others will stay behind, and he thought it incumbent on us to provide for their interests. There was a rage for emigration from the Eastern States to the Western Country, and he did not wish those remaining behind to be at the mercy of the Emigrants."
Despite his dire prediction, Gerry's motion failed 5-4, with Virginia, both Carolmas, and Georgia voting nay. The only northern state to vote no was obstructionist New Jersey. At least for the moment, any new states that might be admitted would enter the Union as equals.
The impact on the Senate of an equal admission of new states would depend on whether voting was by state or by population. If it turned out to be the former, the more states that were admitted, the more senators. From a sectional point of view, whether those senators aligned for or against slavery might determine the balance of power in the entire government. The North, already with the small states of Connecticut, New Hampshire, Delaware, and even absent Rhode Island, would enjoy a big initial advantage in such a configuration, while the slave states would have to find some way to ensure that more new states were admitted from the South than from the North.
All of which bore on the proceedings in Congress, ninety miles away in New York.
On July 13, the day after the three-fifths clause was approved in Philadelphia, Congress enacted "An Ordinance for the government of the Territory of the United States northwest of the River Ohio." The Northwest Ordinance, as it came to be known, was passed with only one congressman opposed, Abraham Yates Jr. of New York, the older brother of Robert Yates, who had tromped out of Philadelphia a week earlier.4
The Northwest Ordinance is a remarkable piece of legislation—all the more so for the near unanimity with which it was approved—and has often been called the single most noteworthy accomplishment of Congress before the adoption of the Constitution. Not only did the ordinance open up territory roughly equal to that of the thirteen original states, it was, until that time, perhaps the most progressive declaration ever issued by a governing body.
It included an article affirming freedom of religion, another guaranteeing habeas corpus and trial by jury, another that encouraged education, and still another that forbade the taking of Indian lands without their consent. The sanctity of contract was affirmed, as was the right of inheritance. But, most remarkable of all was Article VI, the final article, which explicitly stated, "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted."5 At the time that the Northwest Ordinance was enacted, not one of these provisions was part of the legal code of the nation at large.
That an ordinance with a provision that banned slavery was passed by Congress on a day when nine of the eighteen members present were southerners,6 over which a southerner was presiding, with
every southerner voting aye, has puzzled not only historians, but even the Massachusetts congressman who inserted Article VI into the plan. Couple that with the pronouncements of the southern delegates about slavery at virtually the same moment down the road in Philadelphia, and not surprisingly some have seen the Northwest Ordinance as one prong of a compromise with the other being agreement by northern delegates to the three-fifths clause.7
Solid reasons exist to suspect that the timing was more than a coincidence. Several delegates to the convention were also members of Congress,8 and they often shuttled back and forth between the two bodies. Travel between New York and Philadelphia was constant, and news was regularly relayed between the two most important cities in the United States. But most of all, suspicion that the three-fifths clause and the Northwest Ordinance were somehow related has revolved around the actions of one man, the Reverend Dr. Manasseh Cutler of Ipswich, Massachusetts, and the disposition of the rich and fertile country west of Pennsylvania and north of the Ohio River.
Cutler, part clergyman, part lawyer, part healer, part scientist, part social visionary, and part swindler, was another of those remarkable figures who seem to surface whenever a nation is in upheaval. He was born in Connecticut in 1742, the son and grandson of ministers. Instead of religion, which seemed too tame, he chose to attend Yale and study law. After graduation, he worked as a store clerk and schoolteacher in addition to trying his hand at legal work, but decided he didn't like any of those and returned to religion. He landed a position as minister in the Congregational Church in Ipswich in 1771, a post he held until his death fifty-two years later.
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