Dark Bargain

by Lawrence Goldstone

  If the convention fell apart, the New Englanders knew, the Lower South had the most to lose—it had been successful on virtually every point—but even Virginia, despite the loss on both ends of this latest deal, had made enormous gains in the ability to protect the plantation system. If the North walked out now, all those gains would be lost. Gorham's ultimatum was a risk worth taking for the shippers.

  Pinckney's motion was defeated 7-4, South Carolina joining a solid North in voting nay. Thus the remaining three members of the South Carolina delegation must have joined in a rebuff of Charles Pinckney, sticking to the deal they had cut with the northern shippers. Immediately afterward, the motion to strike out entirely the section requiring a two-thirds majority to pass navigation acts was approved without dissent.

  There was one more item on the slavery agenda. At the end of the previous session, "Mr. Butler and Mr. Pinckney moved 'to require fugitive slaves and servants to be delivered up like criminals.'" This was an important piece of the slaveholders' agenda. Although there was a fugitive slave provision in the Articles of Confederation, practically speaking, it was unenforceable. Congress had no real power to compel abolitionist Pennsylvania Quakers, for example, to return a fugitive slave, or even to prevent them from enticing slaves to flee to their protection. Under the new system, however, a fugitive slave provision would have teeth.

  Wilson had protested against such a clause. "This would oblige the Executive of the State to do it at the public expence," he noted. Sherman added that he "saw no more propriety in the public seizing and surrendering a slave or servant, than a horse." Butler had then withdrawn his proposition "in order that some particular provision might be made apart from this article."

  With the North comfortable with the navigation acts provision, Butler tried again. He "moved to insert . . . 'If any person bound to service or labor in any of the U States shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor.' "

  Wilson, Sherman, and the other northerners quickly agreed to this wording without debate or dissent. With the compromise set and the fugitive slave clause in place, the business of slavery was complete. From that day forward, there was no more talk of slaves in Philadelphia.

  16. CLOSING THE DEAL: SEPTEMBER

  Compromises are based on perception. When successful, both parties believe that what they have attained outstrips that which they have given up. They become very possessive of the deal and are willing, even eager, to resolve any remaining differences in order to avoid jeopardizing their gains. An unsuccessful compromise is just the opposite. Under what might be precisely the same terms, one or both parties believe that what they have given up is unacceptable compared to whatever minimal advantages may have been secured. Further conciliation becomes impossible. They tend to become stubborn and unreasonable, even about seemingly minor points, because they have decided that they have little or nothing to lose if the deal collapses, and are perhaps even looking for an excuse to make it collapse.

  As the federal convention moved into September, many of the delegates had seen their views evolve from the latter to the former. Opponents who had been prepared to scotch the entire idea in May and June had come to see the new Constitution as a source of critical achievement. Small states had secured equal representation in the second house; large states had introduced the notion of proportional representation in the population-based first. Creditors saw the potential for a stable monetary system; debtors realized that the states would retain substantial power to enforce—or not enforce—contracts and financial obligations on an individual basis. Everyone saw a government pledged to put down insurrection, either black or white.

  While northerners saw a new government that would encourage and protect commerce and shipping, slaveowners in particular had realized enormous benefits. Counting three-fifths of their slave population in the apportionment of seats in the first house was an incalculable victory, one that promised the southern states a huge disproportion of power in that chamber, not only for the present, but in perpetuity. With no plans in place to initiate a levy on the states, apportioning a similar percentage for taxation had no immediate impact and was therefore only a hypothetical.* The restrictions in the Northwest Ordinance on the number of new states north of the Ohio gave the South every reason to expect that it would also dominate in any chamber in which the states voted equally. These provisions, as well as those covering treason and fugitive slaves, benefited all the slave states equally. The extension of the slave trade was a victory for the rice planters of South Carolina over the tobacco growers of Virginia, but for most of the Upper South planters, the extension of the slave trade and the concessions to the North over commerce did not override the protections that the new government offered slaveowners in general.

  Ellsworth, Sherman, and Rutledge, all reluctant nationalists in May, had become among the most ardent supporters of the new government.1 The two delegates from Connecticut had been the authors of the two most significant compromises of the entire four months, and Rutledge had been able to secure almost every advantage that South Carolina had sought.2

  Among the nationalists, the Annapolis triumvirate of Dickinson, Hamilton, and Madison, despite some setbacks, all viewed the new Constitution as a vast improvement over the Confederation. (Dickinson would leave early because of ill health but asked a fellow delegate, George Read, to sign the Constitution for him by proxy.) The Robert Morris surrogates, Gouverneur Morris and James Wilson, were enthusiastic supporters, as were the Massachusetts capitalists, king and Gorham. The quixotic Elbridge Gerry was a holdout, but since he was considered the convention's oddball (no mean feat with Luther Martin present), he was unlikely to influence anyone else.3 Luther Martin, the new Constitution's most vocal and intractable opponent, had gone home in disgust.

  Mason and Randolph, however, were different. Both had arrived in May with enormous personal prestige, especially Mason, and had been among the strongest supporters of a new government. Both found themselves malterably opposed to the convention's product. In each case, despite some earlier misgivings, the August compromise ensured that opposition. Randolph's resistance would prove ephemeral—he supported the Constitution in the Virginia ratifying convention, doubtless having been persuaded to see the glass half-full by supporters of the plan like Madison/1 Mason, however, remained obdurate. He had been looking into the future for years and seeing catastrophe, and he was certain that the commerce-importation compromise could well provide the tinder to destroy the Virginia he knew. Even worse, the three-fifths rule, seemingly slavery's biggest victory, in his view would accelerate Virginia's downfall since, while it provided a boon to southern legislative clout, it would also encourage the continued propagation of the slave population. On the final day of debate, Mason would make one final effort to restore a two-thirds majority for navigation acts, but was summarily voted down. He thereafter announced that he would not put his name to the document.

  Mason's warnings were irrelevant to northerners and brushed off by his fellow southerners. So, with a new sense of purpose and cooperation, in that first week of September, the delegates tackled the last major unresolved issues— the powers and selection of a president, and how to admit new states.

  As of August 24, the working definition of the executive had still been, "The executive power of the U. S. shall be vested in a single person. His stile shall be 'The President of the LJ. S. of America' and his title shall be 'His Excellency.' He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years; but shall not be elected a second time." Few actually favored this wording but the delegates still could not agree on how to improve upon it. A motion to change "legislature" to "the people" failed miserably. After some squabbling, the delegates agreed to insert "joint" before "ballot," thus involving both houses of Congr
ess in the product.

  No one was terribly enthusiastic about this plan and Gouverneur Morris then objected to the entire notion of allowing the national legislature to choose the executive. "If the Legislature have the Executive dependent on them, they can perpetuate & support their usurpations by the influence of tax-gatherers & other officers, by fleets armies &c. Cabal & corruption are attached to that mode of election," he observed. Morris instead proposed that "to guard against all these evils . . . the President 'shall be chosen by Electors to be chosen by the People of the several States.' "5 The only aspect of the question enjoying even tentative acceptance was that the people should not choose the executive. Morris's motion failed 6-5, after which the provision was postponed again.

  By August 28, nothing had changed. The only thing the delegates could agree on was that every proposed means of selecting a president was unacceptable. This time, popular vote did not even come up, and no one was really comfortable assigning the task to either state legislatures or the national legislature. Once again, election and powers of the president were assigned to a committee of eleven, but when the matter was reported out, the best the convention could do was, upon a motion by Sherman, assign a new committee of eleven to try to find a solution. Shortly before, Mason had declared "that he would sooner chop off his right hand than put it to the Constitution as it now stands."

  On August 31, the committee presented its report, which did nothing to break the deadlock, so the delegates tried again, passing the question off to yet another committee of eleven.6 By then, however, the importation-commerce compromise had been completed and there was an eagerness to solve the problem of the executive that had not been present previously. As a result, this new committee was stocked with delegates who had a better chance of arriving at a workable solution, or at least a solution that might be accepted as workable. The members included King, Sherman, Gouverneur Morris (instead of the ineffectual Thomas Fitzsimmons), Dickinson, Madison (instead of the combustible Mason), and Butler. The committee incorporated the notion of a joint legislative ballot, while returning control of electors to the individual states. The result was in many ways a mirror of the Connecticut Compromise for the legislative branch.

  The executive, they proposed on September 4,

  . . . shall hold his office during the term of four years, and together with the vice-President, chosen for the same term, be elected in the following manner, viz. Each State shall appoint in such manner as its Legislature may direct, a number of electors equal to the whole number of Senators and members of the House of Representatives to which the State may be entitled in the Legislature. The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves; and they shall make a list of all the persons voted for, and of the number of votes for each, which list they shall sign and certify and transmit sealed to the Seat of the Genl. Government, directed to the President of the Senate—The President of the Senate shall in that House open all the certificates; and the votes shall be then & there counted. The Person having the great est number of votes shall be the President, if such number be a majority of that of the electors; and if there be more than one who have such majority, and have an equal number of votes, then the Senate shall immediately choose by ballot one of them for President: but if no person have a majority, then from the five highest on the list, the Senate shall choose by ballot the President. And in every case after the choice of the President, the person having the greatest number of votes shall be vice-president: but if there should remain two or more who have equal votes, the Senate shall choose from them the vice-President. The Legislature may determine the time of choosing and assembling the Electors, and the manner of certifying and transmitting their votes.7

  And so, the Electoral College was born.

  Debate on specific items relating to the executive ensued for the next three days. The only notable change came at the suggestion of Roger Sherman, that the House of Representatives, voting by state, rather than the Senate, choose the president if either of two candidates with a majority were tied or if no candidate received a majority.

  Of greater significance than the changes, was the atmosphere within which these debates were conducted. Where, in the past, one group of delegates or another had attacked every proposed change or alteration of the formula, delegates were now equally aggressive in rejecting changes. They refused to alter the manner of appointing electors, the number of electors, the percentage of the electors necessary to elect a president, and a number of other minor provisions—and this all in one day.

  Provisions for the admission of new states had been agreed to with the same dispatch. At the end of the August 29 session, immediately after agreement on the fugitive slave clause, the delegates had taken up the question of the admission of new states, and by early morning of the next day had resolved it. Even Gouverneur Morris was conciliatory. New states were to be admitted on an equal footing with the original thirteen, with the proviso that no new state could be carved from within the boundaries of another without the consent of both the national legislature and the state's legislature, a measure necessary to maintain balance of power in the Senate.

  All this newfound bonhomie did not mean that the delegates had ceased to pay attention. During discussion of one of the final issues, how to amend the Constitution, Madison proposed inserting the clause, "The Legislature of the U. S. whenever two thirds of both Houses shall deem necessary, or on the application of two thirds of the Legislatures of the several States, shall propose amendments to this Constitution, which shall be valid to all intents and purposes as part thereof, when the same shall have been ratified by three fourths at least of the Legislatures of the several States, or by Conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Legislature of the U.S." Hamilton seconded and it seemed that the motion would be quickly approved.8

  Rutledge, however, quickly asserted that "he never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it." So, he proposed adding the phrase "provided that no amendments which may be made prior to the year 1808, shall in any manner affect the 4 & 5 sections of the VII article," which the delegates inserted without debate.9

  By the end of the day on September 8, the delegates had covered the entire plan. A Committee of Style was appointed to compile all of the draft provisions and create a finished document. The convention was taking no chances at this late date and appointed five nationalists—Johnson of Connecticut, king, Madison, Hamilton, and Gouverneur Morris. The task of actually turning the working notes into a flowing document was given to Morris, considered the most graceful writer of all the delegates.

  He did not disappoint. On September 12, printed copies of the finished Constitution were distributed to the delegates. From the famous preamble, "We, the People of the United States, in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America," to the final Article VII, "The ratification of the conventions of nine States, shall be sufficient for the establishment of this constitution between the States so ratifying the same," the American Constitution is a stylistic masterpiece.

  As to clarity, however, history has demonstrated that interpreting the intent of the convention from the finished document has not been as easy as marveling over the prose. In fact, Morris's version sometimes muddied the intent of the men who agreed to the plan, but by the time they received it, most were too worn out to debate semantics.

  Morris also added a provision of his own. Perhaps as a favor to Robert Morris, in Article I, Section 10, which enumerates powers denied to the states, such as coining money, or entering into "any Treaty, Alliance,
or Confederation," he inserted that no state shall pass laws "altering or impairing the Obligation of Contracts." It passed unnoticed (except by Gerry), or at least unchallenged, at the time, but the contract clause would spawn a body of law all its own over the years. And in the end it did not even help Robert Morris, whose paper empire imploded despite the sanctity of contract.

  There were a number of minor changes to Morris's draft, most notably the reduction to two-thirds from three-fourths as the majority needed to override a presidential veto. The convention unanimously refused to authorize preparation of a Bill of Rights, deciding that the powers of the central government did not extend to questions like freedom of speech or the press— those were reserved for the individual states—and a Bill of Rights was therefore unnecessary*

  For the next three days, the delegates, straining to finish, moved with amazing speed through the Committee of Style's report, refusing to make all but a few minor changes.10 At the close of business on Saturday, September 15, the convention agreed to the product. It was returned on Monday, September 17, 1787, signed (except by Gerry, Mason, and Randolph) and sent on to Congress.†