Madison continued, in his notes:
He [Madison] was so strongly impressed with this important truth that he had been casting about in his mind for some expedient that would answer the purpose. The one which had occurred was that instead of proportioning the votes of the states in both branches to their respective numbers of inhabitants computing the slaves in the ration of five to three, they should be represented in one branch according to the number of free inhabitants only; and in the other according to the whole n[umber] counting the slaves as (if) free. By this arrangement the southern scale would have the advantage in one House, and the northern in the other. He had restrained from proposing this expedient by two considerations; one was his unwillingness to urge any diversity of interests on an occasion when it is but too apt to arise itself—the other was the inequality of powers that must be vested in the two branches, and which would destroy the equilibrium of interests.32
The thrust of Madison’s proposal—that the two houses of Congress could be based on different principles of representation—was a striking departure from the original Virginia plan that relied on a single principle of representation in both houses.33 But there was a problem: in one house he would count slaves as free men, upping the ante from three-fifths to counting all slaves the same as free people. Nevertheless, Madison’s analysis that the basic difference between the states was over slavery gave rise to the possibility of different ways to achieve a balance between these interests.
Ben Franklin pounced immediately on the possibilities of a new framework based on the Ellsworth and Madison statements:
The diversity of opinions turns on two points. If a proportional representation takes place, the small states contend their liberties will be in danger. If an equality of votes is to be put in place, the large states say their money will be in danger. When a broad table is to be made, and the edges (of the planks do not fit) the artist takes a little from both and makes a good joint. In like manner here both sides must part with some of their demands, in order that they may join in some accommodating proposition.34
He proposed equal numbers of delegates from each state to the Senate and that states have “equal suffrage” on three issues, all of which related directly to the ever-present concern of the South to protect slavery: (1) those issues involving individual state sovereignty; (2) where state authority over their own citizens might be diminished or augmented; and (3) where appointments to federal offices were subject to Senate confirmation.
Franklin may have urged prayer on Wednesday, but once Madison’s analysis had created the opportunity he was quick to seek a practical compromise on Saturday. His proposal was only partially followed up.35 Nevertheless, Madison’s and Franklin’s proposals initiated a search for a compromise that took account of how slavery in the territory would affect the future growth of the nation.
The question of how the western lands would evolve into states was already an issue before both the Convention and the Continental Congress. The North had been seeking a slave-free area where its citizens could expand since Pickering’s proposal in 1783, but had been rebuffed by the South at every turn. The South wanted to develop the western territory by using slaves to do the heavy work of clearing and planting.
The western territory was an enormous reservoir for future growth. Discussion at the Convention made clear that the West would inevitably gain increased political influence as the territory was settled and achieved statehood under the “equal footing” doctrine.36 This meant that the West would affect the political balance concerning slavery as well as many other issues.37
The assumption of many at the Convention was that expansion of the country would be to the southwest and therefore pro-slavery. This assumption was in part based on Monroe’s negative report on the soil in the northwest.38 Southerners using slave labor could clear land more cheaply than northerners using either paid labor or the “sweat equity” of new settlers. Moreover, southerners—despite being discouraged by both the British and American governments from settling west of Appalachians—were already on the move.39 Historian Lance Banning writes:
In 1786, the West was everywhere perceived as an extension of the South. Western settlement was still almost exclusively on lands south of the Ohio, and as population moved increasingly into the old Southwest, it was becoming ever more apparent that admission to the union of new southwestern states would fundamentally affect the federal balance.40
The Massachusetts men—particularly Timothy Pickering —had been urging the development of a slave-free northwest territory for years.41 It was understood that the northern territory would be developed by people from New England who would bring their antislavery politics with them. They expected prompt settlement activity as soon as land became available in the northwest, without competition from plantation owners using slave labor.
Land developers, particularly the energetic Manasseh Cutler and the persistent Samuel Parsons from Massachusetts, were pressing hard for a national settlement policy that would unleash this pent-up demand and make great fortunes for the developers. The rapid population increase in the colonies was creating these pressures for more land up and down the east coast.42 Speculators believed that the system of government might be changed, and wanted to seal their arrangements before that happened.
On Monday, July 2, the Convention voted on Ellsworth’s motion to allow each state one vote in the Senate. It split the convention, 5-5-1.43 In support were Connecticut, New York, New Jersey, Delaware, and Maryland. Opposed were Massachusetts, Pennsylvania, Virginia, and the Carolinas. Georgia, which would have voted against the motion along with the other southern states, was divided and therefore its vote did not count. The delegate who created this situation in Georgia was Abraham Baldwin, a transplant from Connecticut. Welleducated, he had been a chaplain in the Revolutionary Army. After the war he moved to Georgia, became a lawyer, and a two-term congressman. He created the deadlock by supporting the motion for equal representation because he thought the North would split the union rather than lose its equality in the Senate.44 Baldwin’s switch was critical because it meant that Georgia’s vote—which would have been against equal votes in the Senate—did not count. Convention rules prohibited counting a state’s vote unless a majority of its delegates supported it. Baldwin thought that a deadlock was preferable to a six to four vote against the equality of states in the Senate and a walk out by the smaller states.
The deadlock shocked delegates from every quarter. Madison noted that Charles Pinckney from South Carolina immediately saw its seriousness. He was:
extremely anxious that something should be done, considering this as the last appeal to a regular experiment. Congresses have failed in almost every effort for an amendment of the federal system. Nothing has prevented a dissolution of it, but the appointment of this Convention; and he could not express his alarms for the consequences of such an event.45
He added, “Some compromise seemed to be necessary; the states being exactly divided on the question of an equality of votes in the second branch.” He proposed a committee of one from each state to recommend a way out of the impass.46
Roger Sherman of Connecticut: “We are now at a full stop, and nobody...meant that we should break up without doing something.”47 He supported the committee concept.
Edmund Randolph of Virginia: “favored the commitment [to a committee] though he did not expect much benefit from the expedient.”48
Hugh Williamson of North Carolina: “If we do not concede on both sides, our business must soon be at an end.”49
Elbridge Gerry of Massachusetts:
Something must be done, or we shall disappoint not only America but the whole world. He suggested a consideration of the state we should be thrown into by the failure of the union. We should be without an umpire to decide controversies and must be at the mercy of events. What too is to become of our treaties—what of our foreign debts, what of our domestic? We must make concessions on both sides. Without these the const
itutions of the several states would never have been formed.50
The enormity of a failure of the Convention and its impact on the lives and futures of the delegates, their families, their prosperity, and indeed the independence for which many of them had fought, was sinking into the delegates’ consciousness. They were all men who had prospered under the admittedly creaky and ineffective Articles of Confederation; many had helped create them. Even if they thought the group of like-minded states could go it alone, they must surely have feared being torn apart from internal dissension and outside forces.
Shays’s Rebellion of 1786 and similar evidences of discontent up and down the continent showed that white colonists could disturb a domestic government as well as a British one. In addition, slave revolts were always on the minds of the southerners. Britain, Spain, and Native American tribes surrounded them on all sides. As Gerry said, amidst a growing sense of anarchy and unbridled selfinterest among the people, they had come to strengthen the national government to increase security and stability. The results of their deliberations, however, were heading toward the dissolution of the union.
The issue was sharply drawn. It was about slavery.51 The South wanted slaves to count in their representation in order to preserve slavery; the North would not stand for a government where whites, with the advantage of votes assigned because they had slaves, would create a slave nation.
The committee recommended by General Pinckney was established by a vote of nine states to two.52 The committee met and voted on Tuesday, July 3.53 It recommended that the House have one representative for each forty thousand inhabitants, counting slaves as three-fifths; and that each state should have equal votes in the Senate.54 This recommendation was the death knell for the Virginia plan that had sought a single principle of representation, but it assured southern power in the House by counting of threefifths of the slaves to determine representation.55 By July 3, it appeared that each state would have equal votes in the Senate and that slaves would count in the South’s representation in the House.
The North would not accept the results of the vote even though they had won equal votes in the Senate. Delegates realized that with growth to the west, southern votes in the house would increase more rapidly than northern votes; inevitably the South would dominate the Congress and slavery would become a nation-wide phenomenon, with a northern enclave of free labor. The deadlock seemed impenetrable. Neither Madison’s proposal nor Franklin’s were acceptable because neither addressed the North’s basic concerns. Although Madison had made the first breakthrough in publicly recognizing that the issue of slavery was important, he was so strongly against the “equal votes” principle that he was unlikely to envision a solution that accepted it.56
The cluster of ideas circulating at the Convention included (1) Madison’s idea that the slavery difference had to be resolved, (2) Ellsworth’s threat to split the union at the Delaware, (3) Monroe’s recommendations to reduce the maximum number of northern states possible in the territory from ten to five, and his view that much of the land there was useless, (4) the North’s demand for slave-free territory and equal state votes in the Senate, (5) the Ohio Company’s pressure for a land sale, (6) the recognition that slavery in the future would be determined by the position of those states that would be formed in the West, and (7) the South’s demand for “security in their slaves.”
Who among the delegates in Philadelphia could make the creative link that would absorb these often conflicting ideas and conceive a solution that would satisfy both northern and southern interests in the slavery issue, and then manage its adoption?57
Our hypothesis, and that is all it can be, is that there were two men at the Philadelphia Convention who played roles in the solution. Benjamin Franklin had the breadth of experience, temperament, history, and perspective to perceive that creating a slave-free area north of the Ohio would address the real and immediate concerns of the northern states. Historian Walter Isaacson’s penetrating portrait of Benjamin Franklin at the Convention, suggests a man, even in old age, still able to sense the perhaps unexpressed but nonetheless real needs of parties in conflict, and able to nudge them toward a solution.58 He had already proposed ideas that the committee had incorporated into its report.59
Over the years, Franklin had become more and more hostile toward slavery.60 This led him to accept the presidency of the Pennsylvania Society for the Abolition of Slavery in 1787, while still governor of Pennsylvania. The society wanted him to present a petition against slavery to the convention, but he declined.61 He was able to think his way through the web of ideas that had led up to the deadlock of July 2 and by being silent about slavery at the Convention, maintain his credibility with all parties. In 1789 and 1790, he would make proposals with respect to slavery that made him the founding godfather of modern day affirmative action.62
Whether it was Franklin or someone else who thought through the haze of ideas to the solution to the deadlock at the convention, the result was elegant, simple, and Solomon-like. It involved cutting the new territory of the United States in half. That part north of the Ohio River would be without slavery; that part south of the Ohio River would continue to maintain slavery. This would satisfy the northern wish to expand into lands to their west, confident that they would not have to compete with slave labor or live in a slave state. The states north of the Ohio would be free, and give the North a balance with the South in the Senate.
In addition, the solution would prevent the operation of the three-fifths rule in the northwest. At the same time, it would also satisfy the southern wish to expand slavery further into the western lands where they had already moved, whereas slavery had only gained a limited foothold on the north bank of the Ohio. It was, in short, a way of “cutting the nation asunder” as Ellsworth had threatened on June 29, but doing so without destroying it.
But the Convention alone could not achieve that result. Not only did it lack authority to solve this particular problem, but if it tried to do so, it would foster a huge public debate about slavery which would not have assisted in the continuance of the union, and might have hastened its demise—as the secret debate nearly did at the Convention. On the other hand, the Continental Congress waiting in New York because it lacked a quorum could address the issue. It had asserted its authority to regulate the territory in 1784, as we have seen in Chapter Nine. Once this idea had been formulated, the question became how could it be brought to fruition in time to save the Convention and perhaps the union itself? We can only speculate about the details, but the consequences tell the story.
First, would the southern representatives to the Convention and the Congress go along with the idea of a noslave zone? It ran counter to their fiercely held position during the last thirteen years. They would have to be made to understand that this concession was necessary to save the union. Who could persuade them?
Second, would the northerners accept the promise of southerners at the Convention to try to accomplish this task as a reason to drop their threat of separation? Probably not. After all these years of protecting slavery, why should the northerners believe a promise of a southern change of heart? But if the southerners could actually foreclose slavery in the northwest, what would the North do? Would it still walk out and guarantee a separation, or would it settle for the solution to its constituents’ immediate problems, and let the future take care of itself? Did Franklin discuss these questions in his comfortable house near the Convention with some of his Virginia friends, or northern friends, or both? Or did he decide to act without consulting the North, presenting it with a fait accompli? We do not know, but we do know the outcome.
Franklin was eighty-one and infirm. Although he lived nearby, it was difficult for him to attend all the convention meetings of the because of his health. He wrote out some of his comments, rather than delivering them himself. He could not have converted this idea into legislative action. He had to find other delegates who had the physical energy, the talent at persuading legislators,
the breadth of vision, and the respect of the legislators at the Convention and at the Congress in New York to make the concept work. Franklin’s home was only a few doors away from the hall where the Convention met, and it would require little energy to discuss the prospect with men like Richard Henry Lee. It is likely that it was Richard Henry Lee who carried out Franklin’s plan because of his standing among the southerners in both Philadelphia and in New York. Richard Henry Lee was a member of Congress, but not the Convention. He had appeared in Philadelphia at the end of June en route to the Congress in New York just as the Convention appeared to be deadlocked.63 It is possible that Lee never knew it was Franklin’s plan. While appearing all innocence, Franklin was wise in devious ways of proceeding.64
One difficulty with this analysis is that Lee and Franklin were not friends. Both Walter Isaacson and Gordon Wood, who have recently published books about Franklin, trace the strained relationship back to Arthur Lee, Richard Henry’s brother, who invoked family support in pursuit of his dislike of Franklin.65 Historian J. Kent McGaughy attributes the hostility to the fact that Franklin had sided with Pennsylvanians in a conflict with Virginians over expansion into western lands.66 Isaacson does say that “on rare occasions, Lee and Franklin put aside their animosity as they discussed their common cause.”67 Saving the union from dissolution at the Convention could have qualified as one of those “rare occasions.”
Now we leave the realm of speculation for facts. Shortly after the Grand Committee had voted for equal representation in the Senate and population plus three-fifths of slaves in the House, five members of the Continental Congress rode north from Philadelphia and joined the proceedings of the Continental Congress in New York. On July 3 or 4, William Blount and Benjamin Hawkins of North Carolina and William Pierce and William Few of Georgia left for New York City. These four were members of both the Convention and the Congress.
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