The delegates must have been stunned. Although both Morris and king had also enumerated practical reasons for rejecting slavery, here, for the first time, two members of the convention had plainly challenged the convention to place morality over pragmatism.
Sherman once again tried to soften the rhetoric and Charles Pinckney attempted to enumerate northern parochial interests that also placed a dram on the nation's resources, but no one else dared speak, not Mason, not Madison, not Dickinson, who had written of conscience on July 9- Even Rutledge sat in silence.
Morris's motion came to a vote. How would the delegates handle this call to principle, this test of their integrity as champions of democracy and the rights of man?
They voted Morris down. Ten states, including Massachusetts, Connecticut, Pennsylvania, and New Hampshire, refused to insert "free" before inhabitants. Only New Jersey voted "aye." After that vote, any pretense of an appeal to higher morality was done.
August 1787 has been labeled "special interests month," but it was also "unlikely brotherhoods month."12 Even during the recess, groups of delegates had stepped up their intrigues, although alliances were difficult to conclude since the particulars of the plan were not yet clear. With the distribution of the Committee of Details' draft, groups could easily form around specific issues.
One of the most significant—and strangest—of these groups was headed by Luther Martin. A few days after the report was distributed, Martin began convening a nightly conclave in his rooms. The participants varied. A number of delegates from the republican states of New Jersey, Delaware, and Martin's Maryland drifted in and out, but the core group was not republican at all, consisting of Charles Pinckney, Edmund Randolph, Elbridge Gerry, and George Mason.
A more unlikely crew could not be imagined. Mason, Randolph, and Pinckney were slaveholders, while Martin and Gerry tenaciously opposed slavery. 13 Mason, Randolph, and Gerry were later to become the three most prominent nonsigners of the Constitution (Martin went home at the end of August), while Pinckney would be one of its most vocal proponents.
The only thing these men had in common was dissatisfaction at the turn of the proceedings, although the reasons for their unhappiness differed greatly. Luther Martin had a genuine dread of centralized authority. He found anathema the entire notion of abandoning a by-state system of representation for one in which the more populous states could, in his view, wield almost unlimited power. Gerry, who many had thought of as a nationalist going in, disliked enough specifics of the new plan that he had come to oppose it altogether. Both he and Mason announced that their opposition was in large part a response to the lack of a Bill of Rights, but in each case that was at best a half-truth.14 Pinckney had no problem with the system of government—he was upset because he had not been either granted a more significant role or given sufficient credit in designing it. Mason and Randolph, both strongly in favor of redesigning the government when they had arrived in May, saw from the Committee of Detail report that Virginia was going to be squeezed between the North and the Lower South.15
Where Luther Martin went, so went alcohol, and there was no one, perhaps in the whole of American history, who could drink with Luther Martin* Each night, the spirits flowed, and Martin, who was desperate to defeat the plan on philosophical grounds, had no trouble inciting the assembled malcontents. As the evenings wore on, inhibitions disappeared and tongues loosened. Every tongue, that is, except the host's. Martin's notion was to so divide the convention that it would break apart. He almost succeeded.16 That he did not was the doing of an equally clever adversary, one whose powers of persuasion and negotiation were reliant on guile, not alcohol.
That adversary was John Rutledge, who was busy in another part of town cementing the unlikely bond between the Yankees and the rice planters. Roger Sherman had gone home during the recess, but as soon as he returned, he resumed his meetings with the South Carolinian. Ellsworth doubtless joined them on many occasions. Whether or not the three came to a tacit understanding or cut an actual deal, by the second week in August, Rutledge (and by association Butler and General Pinckney) and the two delegates from Connecticut had come to an agreement that would not only blunt Martin's attack, but also save the Constitution. The price would not be cheap, however, and to achieve success they would split the South apart and push the entire convention to the verge of collapse.
*One can only wonder how much Rutledge saw himself in the role.
* Although initially suffrage throughout the nation had been limited to freeholders, by the time of the convention, nine of the states had broadened their criteria to extend beyond real property and the remaining four were on their way to doing so.
*Both speeches are included in their entirety. They are crucial to an overall understanding of the dynamic of the convention.
*Much later in his career, Martin was representing a Quaker in a property action. At the Quaker's insistence, Martin promised "not to drink a drop" for the duration of the trial. Martin discovered that he couldn't stand the strain, and sober he was sure to lose the case. And so the dilemma—to keep his word and lose for his client, or to break it and win. At the lunch break, Martin purchased a bottle of brandy and a loaf of bread. He poured the brandy over the bread and ate the 9 0 proof delicacy with a knife and fork. Having kept his word, he then walked back into court and won the case (Clarkson and Jett, Luther Martin, 280).
15. DARK BARGAIN: THE SLAVE TRADE AND OTHER COMMERCE
The episode began innocuously enough on August 16, with a debate over the power to tax exports. While no one disputed the need to raise revenue with a tax on imports, exports were a different matter. The southern states were opposed to such a provision, because their prosperity flowed directly from agricultural products that were exported to Europe. Not only would a tax on exports raise prices without raising profits, but it would also serve to subsidize the northern shippers who carried those goods across the Atlantic. As a result, Rutledge had specifically excluded taxes on exports in the Committee of Detail's draft.
Few northern delegates actually expected taxes on exports to pass—there was more than a little dissent about this question even with in their own ranks—but the symbolic importance of the issue was unmistakable. The provision on export taxes was the first specific measure to come to the floor relating to the power of the new national government to regulate commerce and shipping, the first skirmish of what promised to be an intense battle over the vital and combustible issue of navigation acts.
If the new plan was adopted, the South, in a minority, would lack the votes to prevent the North from authorizing exorbitant rates or onerous restrictions on shipping. Richard Henry Lee had written to James Madison, "It seems clear to me that giving the congress the power to legislate over the trade of the union would be dangerous in the extreme to the five Southern or staple States whose want of ships and seamen would expose their freightage and their produce to a most pernicious and destructive monopoly."1 The South's only recourse was to require an excessive majority to enact navigation or commercial legislation. Most southerners backed a two-thirds majority, although some suggested three-quarters.
But the Yankees hadn't spent three months mollifying the planters only to lose their ability to generate profits. As Gorham would note later, "The eastern states had no motive to union but a commercial one."
For the northern merchants, then, it was vital that navigation acts require only a simple majority in order to prevent the southern veto that the five slave states could easily muster. As Alexander Hamilton later observed in the New York ratifying convention, "The Southern [states] appear to possess neither the means nor the spirit of navigation. [They] wish to impose a restraint on the North, by requiring that two-thirds in Congress should be requisite to pass an act in regulation of commerce. They were apprehensive that the restraints of a navigation law would discourage foreigners, and, by obliging them to employ the shipping of the Northern States, would enhance their freight. This being the case, they insisted str
enuously on having this provision ingrafted in the Constitution, and the Northern States were anxious in opposing it."2
While the draft plan called for the national government to have sole power over foreign and interstate commerce—inevitable, since commercial chaos was one of the key issues that had brought everyone to Philadelphia in the first place—it had also recommended the two-thirds majority in both houses to pass navigation acts.
Nonetheless, instead of the fiery rhetoric that many had expected when the trial balloon of export taxes came up, the August 16 discussion was brief, calm, and understated. Two asides, however, hinted that more rancorous debate was to come. The first was by George Mason. Fresh from Luther Martin's nightly get-togethers and imbued with a heightened fear of central authority, Mason thought the Committee of Detail's draft, which merely stated that "no tax or duty shall be laid by the Legislature on articles exported from any State," was not sufficiently specific to prevent the national legislature from finding a loophole and imposing such a tax. He moved to have the language strengthened by adding, "provided that no tax duty or imposition shall be laid by the Legislature of the U. States on articles exported from any State." Mason said that he "hoped the Northn. States did not mean to deny the Southern this security [to not tax exports]. It would hereafter be as desirable to the former when the latter should become the most populous."3
But the North needed no reminder. How to deal with the effects of a population shift had been the great conundrum for the New England merchants. Soon after Mason's pronouncement, Rutledge played his opening card and gave the Yankees—excepting Ellsworth and Sherman who doubtless already knew— a hint as to how it might be done.
The committee's draft had conveniently linked exports with slavery by adding after "No tax or duty shall be laid by the Legislature on articles exported from any State," the further stipulation, "nor on the migration or importation of such persons as the several States shall think it proper to admit; nor shall such migration or importation be prohibited."
"He should vote for the clause as it stood," Rutledge said, meaning without Mason's changes, "but on condition that the subsequent part relating to negroes should also be agreed to."
The slave trade, as the northern delegates already knew, was the one great issue where the South could not speak with one voice. Rutledge's comment, linking a rejection of Mason's restrictive language with the continuation of the slave trade, was the first public indication that the South Carolina planters would consider a quid pro quo with the northern merchants.4
Ellsworth and Sherman might have agreed in private, but would the other northerners go along? The inhumanity of slaving had become an open sore on the conscience of much of the nation. Rufus king and Gouverneur Morris knew that they were reflecting public sentiment in their harangues of August 8. Madison later wrote, "The African trade in slaves had long been odious to most of the states."5 Most of the civilized world condemned the practice as well (although not so acutely that European shippers eschewed the profits).
There were practical considerations that had emerged as well. With the passage of the three-fifths clause, the slave trade had become a means by which Southern states could supplement their population and thus increase their power in the first house of the legislature. Then there was the issue of public safety. king and Morris had tried to exploit the very real fear of many northerners that continued imports of slaves would render the entire nation weaker, thereby increasing the danger of insurrection from with in and invasion from without.
Nothing more was done that day. Rutledge's proposal engendered no additional comment and, after some minor squabbling with Gouverneur Morris, the question of taxes on exports was sent back to a committee of eleven for further consideration.
For the next four sessions, the delegates discussed a national treasurer, piracy on the high seas, counterfeiting, public debt, the makeup of the militia, and minor courts, but stayed away from both slavery and commerce. They also passed some interesting procedural motions. Apparently the citizens of Philadelphia were becoming impatient with the abbreviated length of the daily sessions—particularly since they were not allowed to know what was going on—and had expressed frustration at the sight of delegates sauntering in shortly before noon, only to leave in the early afternoon. Rutledge moved "that the Convention meet henceforward, precisely at 10 oC A. M. and that precisely at 4 oC P. M., the President adjourn the House without motion for the purpose, and that no motion to adjourn sooner be allowed."6 Only two states voted nay, one of them, curiously, Pennsylvania.7
On the afternoon of August 20, the convention debated the treason provision. Gouverneur Morris, who had become a prominent presence as Madison had receded, "was for giving to the Union an exclusive right to declare what shd. be treason. In case of a contest between the U. S. and a particular State, the people of the latter must, under the disjunctive terms of the clause, be traitors to one or other authority."8 All three delegates from Connecticut, as well as Wilson and Rufus king, supported this view. Mason was quick to disagree. "The United States will have a qualified sovereignty only," he noted. "The individual States will retain a part of the Sovereignty. An Act may be treason agst. a particular State which is not so agst. the U. States."
Morris continued to protest but, in the post-Shays environment, there was not much sentiment for weakening any clause pertaining to domestic security. The issue seemed to be breaking once again along sectional lines when Madison raised the specter of double jeopardy. "As Treason agst. the U. States involves treason agst. particular States, and vice versa," he observed, "the same act may be twice tried & punished by the different authorities."9 Gouverneur Morris went along and the article was amended to read simply, "Treason agst. the U. S. shall consist only in levying war against them, or in adhering to their enemies." When the new wording was approved, the southern states lost the ability to individually define treason, and as a result Rutledge was for once turned back.10
The next day, August 21, the question of taxing exports was taken up once more. This time the debate was neither brief nor calm. John Langdon, the shipper from New Hampshire, possibly not yet fully acclimated after only four weeks in Philadelphia, two of them during adjournment, opened the discussion with a curious reading. He contended that "by this section the States are at liberty to tax exports," and he did not want New Hampshire, with only a tiny stretch of coastline, to be at the mercy of its neighbors to the south and east. He proposed a two-thirds or three-quarters majority to tax exports, which he also generously noted would prevent the northern states from "[oppressing] the trade of the Southn."11
Ellsworth agreed and in the process demonstrated how sympathetic he had become to the slaveowners' cause. "There are solid reasons agst. Congs. taxing exports. 1. it will discourage industry, as taxes on imports discourage luxury. 2. The produce of different States is such as to prevent uniformity in such taxes. There are indeed but a few articles that could be taxed at all; as Tobo. rice & indigo, and a tax on these alone would be partial & unjust. 3. The taxing of exports would engender incurable jealousies."
Williamson added that the power to tax exports "would destroy the last hope of adoption of the plan." Gouverneur Morris tried to couch export taxes in the name of national government, stating that "local considerations ought not to impede the general interest," and Pierce Butler just as quickly shot it down, being "strenuously opposed to a power over exports; as unjust and alarming to the Staple-States." Sherman supported his new allies from South Carolina, agreeing that the legislature should be restrained in this area.
Madison, as always, tried to frame the discussion in philosophical terms of union. He noted, "As we ought to be governed by national and permanent views, it is a sufficient argument for giving the power over exports." Mason countered a bit later, "If we compare the States in this point of view the 8 Northern States have an interest different from the five Southn. States,—and have in one branch of the legislature 36 votes agst. 29 and in the other, in the pro
portion of 8 agst. 5. The Southern States had therefore good ground for their suspicions."
Immediately after the prohibition of taxes on exports passed by a vote of seven to four, with the five southern states united in the affirmative, Luther Martin rose to speak. Whether or not he knew that Connecticut and South Carolina were in cahoots or merely suspected it, Martin was never one to allow his fellow delegates to hide behind artifice. Anticipating the compromise to come, he tossed a bombshell into the mix.
He proposed "to vary the sect . . . so as to allow a prohibition or tax on the importation of slaves. 1. As five slaves are to be counted as 3 free men in the apportionment of Representatives; such a clause wd. Leave an encouragement to this traffic. 2. slaves weakened one part of the Union which the other parts were bound to protect; the privilege of importing them was thus unreasonable—3. it was inconsistent with the principles of the Revolution and dishonorable to the American character to have such a feature in the Constitution."12
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