The willingness of the convention delegates to entrust the production of a prototype to this committee was the most important single act of the entire four months. It would not only create practical boundaries for the resolution of all the contentious specifics with which the delegates had yet to deal, but it would also remove any remaining vestiges of the philosophical symposium that Madison and his allies preferred. That the delegates understood precisely the task at hand and the type of product they expected can be discerned from the men they chose for the assignment.
The five were elected by secret ballot. Rutledge was chosen to chair, with Ellsworth, Gorham, Wilson, and Randolph the remaining members. A strong nationalist bent was unmistakable and, except for Randolph, all were also powerful negotiators and pragmatic deal makers.2 The Committee of Detail was equally notable for who was not selected. Anyone who might descend into theory or stall the committee's progress was left off. Madison was not chosen, nor were Gouverneur Morris, Gerry, or Mason.
From these choices and nonchoices, the delegates made it clear that they were, from this point on, interested only in results. This was not so much colloquium as cabal. For weeks, Ellsworth and Rutledge had been supporting each other in the debates and it was no secret that, along with Sherman, they had been meeting on the sidelines. Rutledge and Wilson, living under the same roof, spoke every evening. Gorham and Wilson came down on the same side of almost every issue. As for Randolph, any important committee had to have a representative from the largest state in the Union (three-fifths of the slaves included). By selecting Randolph over Mason or Madison, the delegates gave Rutledge and the rest an eager and malleable nationalist who lacked the intellect or temperament to successfully outflank the other four.
Nathaniel Gorham
There is also no mistaking the significance of Rutledge as chair. His fellow delegates could not have had a scintilla of doubt that when they elected Dictator John, they were guaranteeing that the document that emerged from the committee would be strongly proslavery. The convention contained no more unabashed a defender of slavery, nor anyone better equipped to wield power. By appointing a weak member for Virginia and none at all from either Maryland or North Carolina, any compromises that were forthcoming would most certainly favor Lower South planters and northern capitalists.
To allow the committee members even more latitude, they were given a charter that was left intentionally broad. Before it began its work, the committee was provided with an outline titled "Proceedings of the Convention, June 19-July 23,"3 in which many of the key compromises that had been hammered out over the previous weeks were not even included. For example, in its resolution on representation in the lower house, the three-fifths clause was omitted. Instead it read, "That the Right of Suffrage in the first Branch of the Legislature of the United States ought not to be according to the Rules established in the Articles of Confederation but according to some equitable Ratio of Representation." Rutledge was therefore free once again to try to include a full counting of slaves, or at least use it as a bargaining chip with the northerners. The convention then called an eleven-day recess to allow the committee to complete its task.4
Edmund Randolph
There are no notes or minutes from the meetings of the Committee of Detail. True to the spirit of the endeavor, many of the "meetings" were informal sessions in the evening at the Indian Queen or at Wilson's home. A number of surviving work papers, however, provide substantial insight into the committee's progress and the evolution of the product the members were to distribute to the convention on August 6.
Rutledge appears to have asked Randolph to play the same role for him as Randolph had earlier played for Madison, to produce an outline from which the committee might work."5 At the very start, Randolph included a "how-to" on the writing of the draft Constitution. "Two things deserve attention," he wrote. "1. To insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable . . . 2. To use simple and precise language, and general propositions, according to the example of the several constitutions of the several states."6
Even as he assigned this task to the young Virginian, Rutledge was aware that Wilson was working on a plan of his own, this one not an outline, but a fully fleshed-out series of proposals for government.7 Wilson's draft survives as well and also contains corrections and additions in Rutledge's hand. There is substantial overlap between Randolph's outline and Wilson's draft, so much so that Rutledge likely shuttled back and forth between the two, drawing on the ideas of one to make suggestions to the other. By the time the two versions reached the full committee, most of the provisions were therefore pretty well agreed upon.
How much Gorham and Ellsworth actually contributed is unknown, but the draft that emerged contained at least one key provision threatening northern profits that each of them found sufficiently unacceptable to have compelled them to reject the plan unless it was changed. Neither of these two men was known for reticence or political naivete, so possibly they allowed the provision to emerge from the committee knowing that it would be rejected in the debates.
Whether or not Rutledge discussed the committee's progress with any delegates not on the committee is also unclear. General Pinckney had gone into the countryside during the recess and Butler had left town, but Charles Pinckney remained in Philadelphia. There were reports that other delegates who were still in Philadelphia wandered in and out of the committee's official sessions at the State House, although specific evidence for this is scant.
By August 4, the committee had completed its work. The final product, a corrected draft by Wilson, was taken to John Dunlap, a Market Street printer who also published the Pennsylvania Packet and would later be engaged to print the completed Constitution. Dunlap produced a proof that the committee further corrected (the corrections are in Randolph's handwriting) from which a final draft was printed. Dunlap produced about sixty copies of the report. On Monday, August 6, the convention reconvened and Rutledge handed each of the delegates a printed copy. The delegates immediately adjourned for the day to read the report.
The document they received was a detailed formulation, in "simple and precise language" of the powers, limitations, and makeup of the three branches of the new government. The executive, called the "President of the United States," was to be elected for a seven-year term by the national legislature (thus allowing the slave states maximum influence) with no eligibility for reelection. He was to be called "Your Excellency."* The legislature was assigned a list of eighteen distinct powers, most of which had been either specifically discussed or alluded to in the debates. Some, however, were new. The last of the eighteen stated, "And to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested, by this Constitution, in the government of the United States, or in any department or officer thereof."8 Called the "elastic clause" or the "necessary and proper clause," it seemed innocuous at the time, but was to cause no shortage of mischief in the coming years since it effectively gave the central government almost unlimited lawmaking powers. That Rutledge would allow the inclusion of an enabling clause that granted the central government sweeping, unspecified powers indicates that he was, by this time, fully in the nationalist camp and saw the government as a benefit to slaveholders rather than a threat.
Report of the Committee of Detail
After the enumeration of powers, prohibitions were listed, some of which were also new. Section 4 stated, "No tax or duty shall be laid by the Legislature on articles exported from any State; nor on the migration or importation of such persons as the several States shall think proper to admit; nor shall such migra tion or importation be prohibited." Export taxes had come up, but no one had agreed to guarantee continuation of the slave trade. That section promised to be unpopular with northerners (except shippers) and even more unpopular in Virginia.9 Section 6 then stated, "No navigation act shall be passed without the assent of
two thirds of the members present in each House." This provision promised to be particularly disagreeable to northerners (particularly shippers).
Section 2 was also original. It began, "Treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them."
Treason had not been discussed in the convention before the Committee of Detail's report—neither the New Jersey nor the Virginia plans had addressed it—but the subject had certainly crossed everyone's mind. By including the phrase "or any of them," Rutledge and the committee were proposing that each state be left free to define treason and that each definition had to then be accepted by the other states. Rutledge doubtless had in mind another provision of the committee's report, Article XV, adapted from the fugitive slave provision in the Articles of Confederation. It read, "Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence."
Treason as thus defined would not be confined to runaway slaves but could be applied equally to whites who were seen to incite slaves, or who allowed them privileges contrary to the Negro Act of 1740. There were no restrictions on state definitions of treason. As a result, according to this statute, the national government would be forced to respect an indictment for treason in, say, South Carolina, which might consist of nothing more than opposing slavery. By incorporating a state definition of treason into the Constitution, Rutledge was seeking a guarantee that the central government would become party to maintaining order with in the slave states.
When the delegates returned on August 7, no one expected the commit tee's plan to simply be rubber-stamped, and there was certain to be debate on specifics, but neither did any of the delegates expect this report to be scrapped and the convention to return to square one. Whatever they decided in the coming weeks, whichever provisions of this report were accepted, rejected, or altered, would form the plan for a new government of the United States. With the sense of urgency inside the chamber apparent, the rhetoric quickly became even more contentious. The delegates began with the most fundamental and controversial issue of all, suffrage, and spent two acrid days hammering it out.
In the committee's report, individual states would decide who could vote for members of the lower house as long as qualifications for voting for congressmen were the same as those for voting for state legislators. Gouverneur Morris moved that voting be restricted to freeholders, those who owned land or other property.
Morris had proposed the same standard in voting for the executive. If the motion had been adopted, a large number of tenant farmers in slave states—and a lesser number in free states—who could vote in state elections would have been ineligible to vote nationally, unless they owned some land or buildings on the side.* But the rule would also have disenfranchised commercially powerful merchants and artisans, in this case overwhelmingly northerners. "Give the votes to people who have no property," Morris said, "and they will sell them to the rich who will be able to buy them. We should not confine our attention to the present moment. The time is not distant when this Country will abound with mechanics & manufacturers who will receive their bread from their employers. Will such men be the secure & faithful Guardians of liberty? Will they be the impregnable barrier agst. aristocracy?"10
Delegates as diverse as Sherman, Mason, Franklin, Gorham, and Pierce Butler lined up against Morris, but Madison, whose democratic bent was often difficult to quantify, supported Morris's view. The motion to enfranchise freeholders only was defeated, with Delaware alone voting in favor.
The following day, the delegates stayed on the issue of who could vote and who could run for office. They debated residency of potential representatives and how long a person needed to have resided in a state to be eligible for office. Then they got to apportionment.
What followed was a short exchange, crucial and intense, characterized by two denunciations and one vote that brought the convention's attitude toward slavery into sharp focus. Rufus King began.11*
The admission of slaves was a most grating circumstance to his mind, & he believed would be so to a great part of the people of America. He had not made a strenuous opposition to it heretofore because he had hoped that this concession would have produced a readiness which had not been manifested, to strengthen the Genl. Govt. and to mark a full confidence in it. The Report under consideration had by the tenor of it, put an end to all those hopes. In two great points the hands of the Legislature were absolutely tied. The importation of slaves could not be prohibited—exports could not be taxed. Is this reasonable? What are the great objects of the Genl. System? 1. defence agst. foreign invasion. 2. agst. internal sedition. Shall all the States then be bound to defend each; & shall each be at liberty to introduce a weakness which will render defence more difficult? Shall one part of the U. S. be bound to defend another part, and that other part be at liberty not only to increase its own danger, but to withhold the compensation for the burden? If slaves are to be imported shall not the exports produced by their labor, supply a revenue the better to enable the Genl. Govt. to defend their masters? There was so much inequality & unreasonableness in all this, that the people of the Northern States could never be reconciled to it. No candid man could undertake to justify it to them. He had hoped that some accommodation wd. have taken place on this subject; that at least a time wd. have been limited for the importation of slaves. He never could agree to let them be imported without limitation & then be represented in the Natl. Legislature. Indeed he could so little persuade himself of: the rectitude of such a practice, that he was not sure he could assent to it under any circumstances. At all events, either slaves should not be represented, or exports should be taxable.
This was the most unmitigated indictment of slavery to date and a call to both undo the three-fifths clause and outlaw the slave trade. King had even threatened to withhold approval unless slavery ceased to enjoy a favored position in bargaining. If other northerners had supported king, the convention could have cleaved in two.
Instead, Sherman quickly tried to mediate. He "regarded the slave trade as iniquitous; but the point of representation having been settled after much difficulty & deliberation, he did not think himself bound to make opposition." Slavery and the slave trade, then, were a price that Sherman was willing to pay to gain union.
Madison tried to change the subject, returning to the formula of one representative for every forty thousand inhabitants, advising that "the future increase of population if the Union shd. be permanent, will render the number of Representatives excessive." Gorham followed Madison's lead, and Ellsworth jumped in. Madison and Sherman then "moved to insert the words 'not exceeding' before the words '1 for every 40, 000 [inhabitants],'" which was unanimously agreed to.
But Gouverneur Morris could not let slavery pass that easily. He moved to insert "free" before the word inhabitants. He then proceeded to launch into a diatribe that made King's pale and still stands as perhaps the most ferocious condemnation of slavery in the nation's history.
He never would concur in upholding domestic slavery. It was a nefarious institution. It was the curse of heaven on the States where it prevailed. Compare the free regions of the Middle States, where a rich & noble cultivation marks the prosperity & happiness of the people, with the misery & poverty which overspread the barren wastes of Va. Maryd. & the other States having slaves. Travel thro' ye. whole Continent & you behold the prospect continually varying with the appearance & disappearance of slavery. The moment you leave the East. Sts. & enter N. York, the effects of the institution become visible, passing thro' the Jerseys &entering Pa. every criterion of superior improvement witnesses the change. Proceed south wdly & every step you take thro' ye. great region of slaves presents a desert increasing, with ye. increasing proportion of
these wretched beings.
Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them Citizens and let them vote. Are they property? Why then is no other property included? The Houses in this city [Philada.] are worth more than all the wretched slaves which cover the rice swamps of South Carolina. The admission of slaves into the Representation when fairly explained comes to this: that 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 & damns them to the most cruel bondages, shall have more votes in a Govt. instituted for protection of the rights of mankind, than the Citizen of Pa. or N. Jersey who views with a laudable horror, so nefarious a practice.
He would add that Domestic slavery is the most prominent feature in the aristocratic countenance of the proposed Constitution. The vassalage of the poor has ever been the favorite offspring of Aristocracy. And What is the proposed compensation to the Northern States for a sacrifice of every principle of right, of every impulse of humanity. They are to bind themselves to march their militia for the defence of the S. States; for their defence agst. those very slaves of whom they complain. They must supply vessels & seamen in case of foreign Attack. The Legislature will have indefinite power to tax them by excises, and duties on imports: both of which will fall heavier on them than on the Southern inhabitants; for the bohea tea used by a Northern freeman, will pay more tax than the whole consumption of the miserable slave, which consists of nothing more than his physical subsistence and the rag that covers his nakedness. On the other side the Southern States are not to be restrained from importing fresh supplies of wretched Africans, at once to increase the danger of attack, and the difficulty of defence; nay they are to be encouraged to it by an assurance of having their votes in the Natl. Govt. increased in proportion, and are at the same time to have their exports & their slaves exempt from all contributions for the public service. Let it not be said that direct taxation is to be proportioned to representation. It is idle to suppose that the Genl. Govt. can stretch its hand directly into the pockets of the people scattered over so vast a Country. They can only do it through the medium of exports imports & excises. For what then are all these sacrifices to be made? He would sooner submit himself to a tax for paying for all the negroes in the U. States, than saddle posterity with such a Constitution.
Dark Bargain Page 18