Slave Nation

by Alfred W. Blumrosen

  These sweeteners were not enough to accommodate the South. The southern opposition to the freedom principle was as strong in 1785 as it had been in 1776. King did not submit this amended proposal to a vote. He must have concluded that he would suffer the same defeat as had Jefferson in 1784.38 King’s failure to press his motion to a vote strengthened the inference that slavery was permitted in all U.S. territory.

  The boldface clause is evidence that the defeat of Jefferson’s 1784 antislavery proposal was viewed by lawyers as authorizing slavery in all the territories. The only purpose of the clause is to rebut that inference once the year 1800 arrived. This is strong evidence that the lawyers understood that language in the 1784 ordinance meant that slavery was permitted in the entire territory.39 In an era where there was no federal supremacy clause and no full federal court system, the lawyers’ understanding was law.

  The next major step in developing a program to govern the territory was a report by James Monroe who had visited the northwest territory. He concluded that Jefferson’s proposed division of the area in the 1784 legislation would produce states that were so small that they would be unlikely to obtain a population entitled to statehood. Monroe had a low opinion of the area:

  A great part of the territory is miserably poor, especially that near Lakes Michigan and Erie; and that upon the Mississippi and Illinois consists of extensive plains which have not had from appearances and will not have a single bush on them for ages.40

  Monroe recommended asking the states which had ceded lands conditioned on the creation of nine to ten states provided in the 1784 ordinance to amend their cession agreements to permit fewer states north of the Ohio River.41 In July 1786, Congress asked Virginia to modify its act of cession to permit the establishment of three to five states in that area.42 The ten states that Jefferson had proposed—if settled by northerners—would have given the North a more decided advantage over the South in any future government which, it was thought, might give an equal votes to each state. On the other hand, an increase in four states to the north would be balanced by an equal number of slave states east of the Mississippi. Was Monroe not much of a farmer, or was he a far-sighted politician who did not want to give the North such a voting advantage?43

  On September 19, 1786, another bill concerning the governance of the territories was proposed to Congress.44 It recommended a more formal governmental structure than had the 1784 ordinance and adopted most of the proposals in the report Congress had considered.45 This bill reflected both a distrust of what the settlers might do if left to themselves and a desire for greater congressional supervision of the territorial government than Jefferson had planned. The bill passed its second reading on May 9, 1787.46

  The same day, Congress received a petition from the Ohio Company seeking land at a convenient place for officers and soldiers. This was the same group of veterans that Timothy Pickering had been working with since 1783, seeking a slave-free area.

  Congress then lost its quorum and was unable to do business, because fifteen of its members were also delegates to the Constitutional Convention that convened in late May in Philadelphia. The Congress could not reconvene until enough delegates returned to create a quorum. Around July 6, five delegates from Virginia, North Carolina, and Georgia reached New York. To understand the extraordinary events that occurred after their arrival in New York, we must examine what happened at the Constitutional Convention in Philadelphia during the last week in June and the first two weeks in July. As Historian H. J. Henderson wrote:

  Only by perceiving the Northwest Ordinance in the context of the proceedings of the Constitutional Convention can one properly understand its passage, and only by viewing the debates of the Convention as an extension of Congressional factionalism can we understand why the Convention had such a vital influence on the ordinance.47

  Chapter 10

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  Deadlock over Slavery in the Constitutional Convention

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  The alliance of states that had fought the Revolution was weakened once the war ended. The Continental Congress had deliberately created a frail central government in the Articles of Confederation.1 There was no executive branch. Each state had one vote, and could veto any changes to the Articles. The Congress had no taxing power, and could raise money only by begging the states for it. It had no power to prevent the states from taxing goods exported to other states. Thus New Jersey, whose goods were taxed at port cities of both New York and Philadelphia, was “like a cask tapped at both ends; and North Carolina, between Virginia and South Carolina...a patient bleeding at both arms.”2

  After disbanding the army, the Congress had no federal military force. In Massachusetts during the recession of 1786, war veteran Daniel Shays led a crowd of disgruntled former soldiers in a “rebellion.” They had been paid with paper that was growing worthless, causing the loss of their farms to foreclosures and leaving them facing imprisonment for debt. They closed the courts in several towns and headed toward the arsenal in Springfield. Local militia dispersed them. The discontent was not limited to Massachusetts, however. Up and down the eastern seaboard, courts with the power to imprison debtors were closed by mob violence.3 To the political and economic leadership, the impotence of the federal government was proving a disaster. The state governments looked no better, printing paper money that rapidly became worthless, thus contributing to the general collapse of the economy. Finally, twelve states agreed to a call by Virginia for a convention in Philadelphia in May 1787, to consider amending the Articles of Confederation to strengthen the powers of the federal government.

  The Virginia delegation came to Philadelphia prepared to dominate the convention. The distinguished group was headed by George Washington, and included Governor Edmund Randolph, James Madison, George Mason (who had drafted the Virginia Constitution of 1776), and George Wythe (a judge, a mentor of Jefferson’s, and the first law professor in an American college).4 They planned to create a strong national government that would be controlled by the larger states, based on population—Virginia, Massachusetts, and Pennsylvania were the most populous at the time. They spent nearly two weeks preparing their proposal—known as the Virginia or Randolph plan. It was designed to create a strong federal government by giving the central government the power to tax, and weakening the states’ ability to prevent, delay, or interfere with federal government programs.

  Virginia’s governor, Edmund Randolph, presented the plan on May 29.5 It featured a two-part national legislature that was based on the single principle of representation. The number of representatives that each state would have in Congress was to be based on “the quotas of contribution,” meaning each state’s share of contributions to the federal budget. This proportion had been set in a political compromise by Congress in 1783 as counting each slave as three-fifths of a person for purposes of setting each state’s contribution to the federal government.6 An alternative proposal was to measure representation by the “number of free inhabitants” but Madison quickly moved to strike this alternative because he said, “it might occasion debates which would divert the Committee from the general question whether the principle of representation should be changed.”7

  Only one body, the House of Representatives, would be elected by the people of each state.8 The second and smaller body, the Senate, would be elected by the House of Representatives from among persons nominated by the state legislatures.9

  On June 11, James Wilson of Pennsylvania and Charles Pinckney of South Carolina proposed that the three-fifths formula be applied to determine membership in the House of Representatives.10 This would give the slave-holding states a greater representation in the House than they would have if only whites were counted. The proposal passed in the committee, nine to two,11 but only after Elbridge Gerry of Massachusetts asked, “Why should the blacks, who were property in the South, be in their rule of representation more than the cattle and horses of the North?”12

  Nevertheless, Massachusetts supported the
motion because the state would benefit. The result of this vote was that the states that contributed more to the federal budget would effectively dominate the House and the Senate because both were based on the same principle of representation. The large states and a few supporting states would control the Congress. The smaller states, foreseeing a loss of influence, immediately fought back.

  Roger Sherman and Oliver Ellsworth of Connecticut proposed that states have equal votes in the Senate. If not, “The smaller states would never agree to the plan.” Madison was adamant that giving the states equal voting power in any form would merely replicate the weakness of the Articles of Confederation. The Sherman-Ellsworth motion was defeated six to five. The larger free states plus the slave states ganged up on the smaller states.13 The small states obtained a day’s adjournment to consider what to do.

  On June 15, Patterson presented the New Jersey Plan on behalf of New York, New Jersey, Delaware, and Luther Martin of Maryland.14 It insisted on an equal vote for each state in a single legislative body, as was the case under the Articles of Confederation.

  This issue was debated until June 19, when the committee of the whole rejected the Patterson plan by seven votes—Massachusetts, Connecticut, Pennsylvania, Virginia, the Carolinas, and Georgia—to three—New York, New Jersey, and Delaware, those states that had originally proposed it.15 The committee recommended that the Virginia plan be adopted. For ten more days, the convention debated inconclusively. Tempers and temperatures rose as the debate grew more heated inside the hall, as did the weather outside.

  On June 28, Hugh Williamson of North Carolina added a new dimension to the debate. He:

  begged that the expected addition of new states from the westward might be kept in view. They would be small states, they would be poor states, they would be unable to pay in proportion to their numbers; their distance from market rendering the produce of their labor less valuable; they would consequently be tempted to combine for the purpose of laying burdens on commerce and consumption which would fall with greatest weight on the old states.16

  On the same day, Benjamin Franklin, whose experience and judgment, according to historian Walter Isaacson, “exemplified qualities of enlightenment, tolerance and pragmatic compromise,” expressed the frustration of the convention:17

  The small progress we have made after four or five weeks close attendance and continual reasonings with each other—our different sentiments on almost every question, several of the last producing as many noes as ayes, is methinks a melancholy proof of the imperfection of the human understanding.…

  In this situation of this assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, Sir, that we have not hitherto once thought of humbly applying to the father of lights to illuminate our understandings?

  Franklin recommended prayer. When delegate Hugh Williamson of North Carolina pointed out that the Convention had no funds to pay a minister, the proposal was dropped.18

  On Friday, June 29, the debate continued, culminating in a six to four vote rejecting the equality of states principle of the Articles of Confederation in the House and proposing that it be “according to some equitable ratio.”19 The six states voting against equal representation were Massachusetts, Pennsylvania, Virginia, the two Carolinas, and Georgia; the three largest states by population and the four slave states. The Convention was precisely at the same point it had been on June 14, before the Patterson plan for equal votes in the state legislature had been proposed. The Patterson plan was dead and at that point, small state representatives fought back to save equal representation for states in the Senate with their strongest weapon.

  On Friday, June 29, Oliver Ellsworth of Connecticut moved to save some influence for the states. This time he moved that each state should have an equal vote in the Senate, and accepted a two house legislature as in the Virginia plan. Madison reported Ellsworth’s speech:

  The proportional representation in the first branch was conformable to the federal principle and was necessary to secure the large states against the small. An equality of voices was conformable to the federal principle and was necessary to secure the small states against the large. He trusted that on this middle ground a compromise would take place. He did not see that it could on any other. And if no compromise should take place, our meting would not only be in vain but worse than in vain. To the eastward, he was sure that Massachusetts was the only state that would listen to a proposition for excluding the states as equal political societies, from an equal voice in both branches. The others would risk every consequence rather than part with so dear a right. An attempt to deprive them of it was at once cutting the body (of America) in two, and, as he supposed would be the case, somewhere about this part of it.20

  Ellsworth may have used much more colorful language. Rufus King of Massachusetts reported that he had said, “the political body must be cut asunder at the Delaware.”21 Abraham Yates of New York reported that he said, “If the great states refuse this plan, we will be forever separated.”22

  This was the strongest threat to split the country made by a northerner at the Convention. Ellsworth demanded an equal vote in both House and Senate for the states, but if the larger states insisted on proportional representation in both houses, he was willing to compromise on equality in one and proportionality in the other.

  Suddenly, the entire convention was facing an abyss. They had come together to strengthen the union; now they were coming perilously close to dissolving it. They were all men of business, law, and politics. Division of the union threatened the economic and social stability of the states they represented, and of their own generally prosperous lifestyles.23

  Southerners—who frequently used the threat themselves —had to take this threat seriously.24 They could ill afford to be cut loose from the northern states. They had not recovered from the brutal warfare in the later years of the war or the loss of a quarter of their slaves who had been liberated by the British. The South was economically and militarily weaker than it had been in 1774, compared to the North. It had been devastated by the later years of the war. It had no navy and it was exposed to hostile Native Americans, possible British meddling to the west, and the Spanish to the south. A division of the nation would have left it prey to external forces as well as to the risk of slave uprisings and poor white protests over debts as in Shays’s Rebellion.25

  The next day, June 30, Madison responded to Ellsworth’s threat to split the union. His speech was the analytical and thoughtful Madison at his best. He had reached a new understanding of the real issue before the Convention. Since the beginning of the Convention, the dispute had appeared to be between small and large states. But it was really about slavery.

  The States were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from (the effects of) their having or not having slaves. These two causes concurred in forming the great division of interests in the U. States. It did not lie between the large and small states; it lay between the northern and southern. And if any defensive powers were necessary, it ought to be mutually given to these two interests.26

  This powerful analysis from the most respected thinker at the Convention constituted the first public acknowledgment of the central role of slavery at the Convention. Even if it was overstated, it sank into the collective consciousness of the Convention. By July 14, Madison could report that his analysis had been accepted.

  It seems now to be pretty well understood that the real difference of interests lay, not between the n(orthern) and southern states. The institution of slavery and its consequences formed the line of discrimination. There were five states in the South, eight on the northern side of this line.27

  Madison may have exaggerated the slavery issue by suggesting it was the only difference between the states. But he made his point that it was the important issue b
efore the Convention. The Convention had heard little concerning slavery prior to this time. Gerry’s statement of June 11—that if slaves were property, they should have no more votes than cattle and horses—is the only direct critical statement concerning slavery made between May 28 and June 30.28 Either Madison and the other note takers did not report such statements, or, more likely, they were made off the floor in social contacts between the delegates.29

  We assume that most of the comments which were made on the record—everyone knew that Madison was taking copious notes—had first been discussed off the floor. We know that the delegates had a busy social life but we know little of the content of the conversations and discussions that took place because the delegates were sworn to secrecy. Particularly since some of the delegates did not know each other well it was likely that comments made on the record had been carefully thought out beforehand.30

  Those informal antislavery comments must have been sufficiently strong that the southerners had to mount a major defense of their states’ rights position. These southern responses began on May 30, shortly after the convention convened.31 If the discussions about large versus small states scattered throughout the record really described differences between slave and free states, then there was extensive deliberation on the issue. Ellsworth’s threat to “cut the political body asunder” on June 29, along with Madison’s the next day that slavery was the central issue between the North and the South, forced the Convention to face the reality that the union of the colonies was likely to break up at the Convention.

  Madison’s comment was a result of careful reflection, not a spontaneous expression. As the concluding lines of his statement indicated, he was searching for a balanced approach to the issue of slavery: “If any defensive powers were necessary, it ought to be mutually given to these two interests.”