Dark Bargain

by Lawrence Goldstone

  Madison also attacked Mason's contention that the Constitution did not protect the condition of slaves already in the country. "Another clause secures us that property which we now possess," he proclaimed. "At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws; for the laws of the states are uncharitable to one another in this respect. But in this Constitution, 'no person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor shall be due.' This clause was expressly inserted, to enable owners of slaves to reclaim them."

  To sum up, he observed, "From the mode of representation and taxation, Congress cannot lay such a tax on slaves as will amount to manumission... This is a better security than any that now exists. No power is given to the general government to interpose with respect to the property in slaves now held by the states. The taxation of this state being equal only to its representation, such a tax cannot be laid as [Mason | supposes."

  Returning to the slave trade, Madison observed finally, "Great as the evil is, a dismemberment of the Union would be worse."18 That he could appear as an enemy of slavery on practical grounds in Philadelphia, morally repulsed in the Federalist, and an ally of the planters in Virginia is testament to Madison's deftness and skill as a politician.

  Madison has come to be known as the Father of the Constitution, because his vision and political philosophy are widely perceived to have set the mood for the convention and permeated the finished document. Certainly, no one was more involved with getting the convention called and setting its early tone. In the end, however, very few of Madison's major propositions were ultimately realized.

  While a bicameral legislature was adopted, Madison was hardly the only delegate who favored two houses. On the other hand, he was unwavering that both houses of Congress be population-based, and spoke for hours on the subject, trying one formula after another (including the half-baked idea of an all-slaves/ no-slaves division). Ultimately, however, he lost out to the Connecticut Compromise. He wanted the first branch to choose the second branch, but that idea failed as well. He wanted the executive chosen by the national legislature, but the convention opted to place the decision in the hands of electors from the individual states. He wanted a "council of revision" containing the executive and members of the judiciary to approve acts of the legislature, but the delegates granted a veto to the executive alone. He certainly favored neither the continuation of the slave trade nor the ceding of navigation legislation to the North.*

  As the convention wore on, Madison gave fewer and fewer speeches, and when he did offer one of his philosophical discourses, it tended to be disregarded by his colleagues. And Madison was not alone. The convention paid little attention to Gouverneur Morris's denunciation of slavery and even less to Mason's harangue against the slave trade. Hamilton, even after his return in August, never gave a speech to match his daylong address of June 18. After the Connecticut Compromise was adopted, Wilson read no more of Franklin's musings into the record until the very last day, when Franklin urged unanimity in accepting the convention's product, a wish that was ignored with regret by Gerry and Randolph, and likely with secret relish by Mason.

  If one man can truly be deemed Father of the Constitution, at least at the convention, it is Rutledge. Of course, an unrepentant slaveowner as the Father of the Constitution is far less appealing than a young and radiant philosopher and future president, but Rutledge simply had far more influence on the final product than did Madison. Moreover, Rutledge, by aligning with his fellow slaveholders of the Upper South in the apportionment debate, and then with the northerners in fashioning a compromise on the slave trade and navigation acts, put South Carolina on the winning side in both contests. Madison got his strong central government, it was true, but paid a significant price to do so. Rutledge paid nothing.

  If the Old Dictator is given patrimony, then Ellsworth and Sherman are certainly uncles.f One or both of them either thought up or participated in every important compromise, and thereby allowed the convention to avoid collapse.

  Rutledge's motivation in pursuing his agenda is apparent, as, for that matter, is Madison's and even Mason's. But what of Ellsworth and Sherman? Neither was a shipper or merchant, and Connecticut was not at the time a commercial power.19 What could have motivated two men of unquestioned integrity to put aside personal morality and forge bargains with slaveowners?

  The answer once again is to found in Michelet, who, it will be remembered, "always shows [remarkable men] in relation to the social group that has molded them and whose feelings they are finding expression for, whose needs they are attempting to satisfy." Ellsworth and Sherman were creatures of their upbringing, their values, and the society in which they lived. They were in Philadelphia to protect and promote a way of life and this, not personal gain, or even a specific commercial advantage for Connecticut, prompted them to act as they did. Both men genuinely believed that their actions, even their compromises with slavery, were for the betterment of the society they represented and, as such, were also for the betterment of the United States.

  The same is true of almost all the men who supported the Constitution. General Pinckney was not equivocating in his address to the South Carolina assembly. He urged his fellow slaveowners to support a system that ceded substantial powers to a central government over which they would have only one-thirteenth control because he saw that government as beneficial to South Carolina.

  It was very much a case of the blind men and the elephant. Ellsworth, Sherman, and other northern merchants looked at the commerce provisions and saw a government that was pro-business, while Rutledge, General Pinckney, and the other rice planters looked at the present and future apportionment of power and saw a government that was proslavery. Not one of the delegates, even Madison, returned to his home state and urged his fellows to ratify the Constitution on the basis of higher principles, despite its being unfavorable to his state. Madison, as demonstrated by his variant defenses of the slave trade extension, was every bit the salesman, both in the Federalist and in the Virginia ratifying convention.

  In one of the great ironies of American history, after all the intrigues, all the machinations, and all the compromises, so much worked out differently than was expected. Congress never did vote to impose a direct tax on the states, and so the North gave up three-fifths for nothing. If Mason and the other Upper South planters had known, they would surely have supported the South Carolinians and might have gained representation for all their slaves.

  Population did not trend to the southwest, so the slaveholders never attained the majority in both houses that everyone expected. Only five new states from the Southwest entered the Union before the Missouri Compromise in 1820, against four from the North. Without a Southwestern majority to extend it, the slave trade was indeed outlawed in 1807, one year early. A government that was supposed to reside mostly in a southern-dominated legislature soon became executive driven, and the courts, thanks to John Marshall, assumed a much more active role in the government than anyone had foreseen. Slavery, of course, far from either withering away as the optimistic northerners expected, or attaining dominance as Rutledge intended, strangled and ultimately paralyzed the nation until a bloody war broke the deadlock.

  Regardless of how events played out, sectionalism and slavery are key to understanding the major debates and compromises in Philadelphia during the summer of 1787. Slavery, of course, did not precipitate every division at the convention, nor was every debate that did not include slavery trivial.

  But in the central role it played, the weight of evidence leads inescapably to the conclusion that the Constitution was drafted by highly pragmatic men who were pursuing limited and self-interested goals. Philosophical concerns seemed to play only a minor role in the proceedings, and only then with but a few of the
participants. Nonetheless, for all that, precisely because the delegates in Philadelphia were pragmatic, and were there to represent specific, parochial interests, they were able to draft a document that was workable, adaptable, and able to survive challenges that could never have been imagined in 1787. It is distinctly possible that had idealism dominated in Philadelphia, American democracy would have failed.

  * Mason's notes were warm and friendly, while Washington's replies were chilly. Washington never forgave Mason for opposing the Constitution for self-serving reasons. He wrote to a mutual friend that Mason had been done in by pride and exhibited "a lack of manly candor" (Rutland, Papers, iii: 179).

  * These defeats, among others, would cause Madison to famously break with the nationalists only four years later and "repudiate the arguments of the Federalist for a strong national government" (Elkins and McKitrick, The Age of Federalism, 224).

  † Charles Pinckney, if he indeed had as much to do with the end result as he later claimed, deserves similar mention.

  NOTES

  Prologue: Fulcrum

  1. Wright and MacGregor, Soldier-Statesmen, 119.

  2. Farrand, Records, iii:96.

  3. South Carolina was awash in Charles Pinckneys. The general's father was also named Charles, as was cousin Charles's father. Both earlier and later generations had their Charleses as well.

  4. South Carolina, New Hampshire, Delaware, and Pennsylvania were states with presidents. South Carolina changed the title to governor in 1779 during Lowndes's term, New Hampshire in 1786, Pennsylvania in 1790, and Delaware not until 1792. Georgia, New York, and Mary land had no chief executive after independence until they elected their first governors in 1777, nor did Massachusetts until 1780.

  5. The debate in the South Carolina legislature appears in Elliot, Debates, iv:271-86. Unless otherwise noted, all citations appear in those pages.

  6. Lowndes's opinions did not moderate over time. He asked that his tombstone be inscribed, "Here lies the man that opposed the constitution, because it was ruinous to the liberty of America."

  7. Unless Andrew Jackson, who claimed South Carolina as his native state, was actually born there. He may well have been born across the border in North Carolina. Georgia had to wait until 1976 for Jimmy Carter's election.

  8. Southerners often argued that divine revelation showed inequality to the order of the universe. The Scriptures, they said, demonstrated that "an inferior race must live under the domination of the superior" (Elkins, Slavery, 36).

  1. Devil in the Mist

  1. Cutler and Cutler, Life, Journals, i:267.

  2. Clarkson and Jett, Luther Martin, 193.

  3. Delaware is sometimes listed as a slave state but, although slavery was not uncommon, ac cording to the census of 1790, only 15 percent of the population was black, as compared to 40 percent in Virginia and 43 percent in South Carolina. Delaware also had a more thriving commercial economy than any of the five slave states to the south.

  4. Madison was the first to use the word "miracle" to describe the process in a letter to Jeffer son in October 1787 (Farrand, Records, 111:131). The term has since been applied by any number of analysts and historians.

  5. Abraham Lincoln was to say, "Slavery was hid away in the Constitution, just as an afflicted man hides away a wen or cancer, which he dares not cut out at once, lest he bleed to death" (quoted in Morris, Witnesses, 216).

  6. Farrand, Records, ii:10.

  7. Even those essays written by former delegates cannot be viewed as providing definitive evidence of the proceedings, since the authors were engaged in propagandizing and therefore took advantage of the secrecy of the convention to slant the facts in favor of their arguments. Of this, no one was more guilty than Madison.

  8. Bancroft's remarkable output included poetry, philosophy, literary criticism, Greek and Latin grammars, and translations, particularly of German philosophers, in addition to American history. For seven years, he was the American ambassador to Prussia.

  9. Bancroft, History, ii:75.

  10. Wood, Creation, 131.

  11. Farrand, Framing of the Constitution, 110.

  12. Dictionary of American Biography, supplement 11:262.

  13. In 1987, an equally prodigious five volume effort, The Founders' Constitution, was produced by Philip B. Kurland and Ralph Lerner, two University of Chicago professors. Drawing on the correspondence of delegates and nondelegates alike, pamphlets and other public documents of the period, and records of various debates and public statements, Kurland and Lerner divided their material by its pertinence to a particular clause or phrase in the Constitution and ereated what has been called the "Oxford English Dictionary of American constitutional history."

  14. Farrand himself called it "my immortal work."

  15. Beard was far from inactive, however, helping to found the New School for Social Research and serving terms as president of both the American Political Science Association and the American Historical Association.

  16. While an improvement over Beard's, McDonald's focus on economics caused him to omit planters to whom slavery had become a burden but was nonetheless necessary to maintain a carefully constructed lifestyle. These men, centered in the tobacco growing states of Virginia, Maryland, and North Carolina, would need to go against their own economic interests in order to maintain their way of life.

  17. Slavery has not gone completely unnoticed. Jack Rakove in his Pulitzer Prize-winning Original Meanings seems so cognizant of the role of slavery that one wonders why he didn't make more of it. Only Paul Fmkelman among modern historians has been unflagging in his insistence that slavery played more than a coincident role in the genesis of the Constitution.

  18. Wilson, To the Finland Station, 5-6.

  19. Ibid., 22.

  2. Reluctant Nation: The Articles of Confederation

  1. John Adams later said that the Connecticut proposal was written by Roger Sherman.

  2. Dickinson was born in Delaware, but spent a good deal of his professional life in Pennsylvania. He would eventually serve as president of both states. He represented Pennsylvania in the Continental Congress and Delaware at the Constitutional Convention.

  3. Slavery figured in no small part in the debates in Congress over the Articles, often in much the same way as it would in Philadelphia. See, tor example, John Adams, Papers, n:245-48.

  4. Wood, Creation, 357.

  5. Ibid.

  6. Maryland would not have agreed that it was landless, asserting claims to a large block of territory that almost everyone else agreed belonged to Virginia, or perhaps Pennsylvania, or maybe even Connecticut.

  7. See Clarkson and Jett, Luther Martin, 63.

  8. Fiske, Critical Period. Fiske, who coined the phrase Critical Period, is of course referring to the American general Nathaneal Greene and Charles, Lord Cornwallis, of Britain.

  9. Connecticut did not adopt a formal constitution until 1818 and Rhode Island until 1843, but each operated under extensions of colonial charters or laws unique to each state.

  10. Boardman, Roger Sherman, 165-

  11. Closing off the Southwest did not please land speculators either.

  12. It had taken over two years to replace Livingston, an indication of just how ineffectual the government had become.

  13. The Jay Gardoqui affair is related in Jensen's New Nation and again, with typical sarcasm, in McDonald's E Pluribus Unum.

  14. Jay's infatuation with Spain, ruled by "His Most Catholic majesty," was odd indeed. Jay's family were Huguenot émigrés who had fled Catholic persecution in France and Jay himself had proposed denying Catholics equality in the new United States. He had been dissuaded from pressing the issue by Gouverneur Morris.

  15. For the debate on the Jay-Garodqui treaty, see Ford, Journals of the Continental Congress, XXXI:574-613.

  16. It would be reinstituted in 1795, eight years before Napoleon and the Louisiana Purchase rendered it moot.

  17. Madison claimed not to hold out a great deal o
f hope that his fellow Americans would re spond with enthusiasm but considered this "better than nothing."

  18. Massachusetts did actually appoint delegates but, although the date of the meeting had been public knowledge for months, its delegation, after a leisurely trip south, did not arrive in time.

  19. Hamilton wrote the first draft, which, not surprisingly, was considered too radical by his colleagues, so Madison and Randolph helped him tone it down.

  20. Quoted in Boardman, Sherman, 223.

  21. Rakove, Original Meanings, 33.

  3. Rabble in Black and White: Insurrection

  1. For a description of the tensions between eastern and western Massachusetts, Szatmary's Shays' Rebellion is by far most comprehensive source. More cursorily, see Fiske, Critical Period; McDonald, £ Pluribus Unum; and Jensen, New Nation.

  2. Szatmary, Shays' Rebellion, 86-87.

  3. The spot is now marked by a tiny stone tablet on a road frequented by wealthy second-home owners from New York City.

  4. Most of the leaders were pardoned almost immediately, and Shays was finally pardoned in June 1788.

  5. Knox. was married to his beloved and similarly rotund Lucy, and the Knoxes were perhaps the most corpulent couple in America. The general, who was not tall, weighed close to three hundred pounds, and Manassah Cutler described Knox's wife as "very gross" with a "military style, which to me is disgusting in a female."

  6. Knox to Washington, December 1, 1786; quoted in Zmn, History, 95.

  7. Herbert Aptheker wrote, "While there is a difference of opinion as to the prevalence of dis content among slaves, one finds nearly unanimous agreement concerning the widespread fear of servile rebellion" (American Negro Slave Revolts, 18).

  8. Two whites known to be kind to their slaves were spared.