"THE COMPROMISES"
The question with the North was, how far could it yield; with the South,
how far could it encroach. It turned mainly on representation,--on "the
unimportant anomaly," as Mr. George Ticknor Curtis calls it in his
"History of the Constitution," "of a representation of men without
political rights or social privileges." However much they differed upon
the subject in the convention, there was nobody then and there who
regarded the question as "unimportant;" nor was there a political event
to happen for the coming eighty years that it did not influence and
generally govern. There were some who maintained at first that the slave
population should not be represented at all. Hamilton proposed in the
first days of the convention "that the rights of suffrage in the
national legislature ought to be proportioned to the number of free
inhabitants." Madison was willing to concede this in one branch of the
legislature, provided that in the representation in the other house the
slaves were counted as free inhabitants. The constitution of the Senate
subsequently disposed of that proposition.
But why should slaves be represented at all? "They are not free agents,"
said Patterson, a delegate to the convention from New Jersey; they "have
no personal liberty, no faculty of acquiring property, but, on the
contrary, are themselves property, and, like other property, entirely at
the will of the master. Has a man in Virginia a number of votes in
proportion to the number of his slaves? And if negroes are not
represented in the States to which they belong, why should they be
represented in the general government?... If a meeting of the people was
actually to take place in a slave State, would the slaves vote? They
would not. Why, then, should they be represented in a federal
government?" There could be but one reply, but that was one which it
would not have been wise to make. It was slave property that was to be
represented, and this would not be submitted to among slaveholders as
against each other, while yet they were a unit in insisting upon it in a
union with those who were not slaveholders. Among themselves slavery
needed no protection; their safety was in equality. But to their great
interest every non-slaveholder was, in the nature of things, an enemy;
and prudence required that the power either to vote him down or to buy
him up should never be wanting. It was as much a matter of instinct as
of deliberation, for love of life is the first law. The truth was
covered up in Madison's specious assertion that "every peculiar
interest, whether in any class of citizens or any description of
States, ought to be secured as far as possible." The only "peculiar"
interest, however, belonging either to citizens or States, that was
imbedded in the Constitution, was slavery.
So Wilson of Pennsylvania asked: "Are they [the slaves] admitted as
citizens--then why are they not admitted on an equality with white
citizens? Are they admitted as property--then why is not other property
admitted into the computation?" He was willing, however, to concede that
it was a difficulty to be "overcome by the necessity of compromise."
Never, probably, in the history of legislation, was there a more serious
question debated. Compromise is ordinarily understood to mean an
adjustment by mutual concessions, where there are rights on both sides.
Here it meant whether the side which had no shadow of right whatever to
that which it demanded would consent to take a little less than the
whole. It was the kind of compromise made between the bandit and his
victim when the former decides that he will not put himself to the
trouble of shooting the other, and will even leave him his shirt. It was
not difficult to understand that horses and cattle could be justly
counted only where property was to be the basis of representation. Yet
the slaves, who were counted, were, in the eye of the law, either
personal property or real estate, and were no more represented as
citizens than if they also had gone upon all fours. Their enumeration,
nevertheless, was carried, and it so increased the representative power
of their masters that inequality of citizenship became the fundamental
principle of the government. This, of course, was to form an oligarchy,
not a democracy. Practically the government was put in the hands of a
class, and there it remained from the moment of the adoption of the
Constitution to the rebellion of 1860; while that class, including those
of so little consequence as to own only a slave or two, in its best
estate, probably never exceeded ten per centum of the whole people.
There was, if one may venture to say so, a singular confusion in the
minds of the venerable fathers of the republic on this subject. They
could not quite get rid of the notion that the slaves, being human,
ought to be included in the enumeration of population, notwithstanding
that their enumeration as citizens must necessarily disappear in their
representation as chattels. Slaves, as slaves, were the wealth of the
South, as ships, for example, were the wealth of the North; but, being
human, the mind was not shocked at having the slaves reckoned as
population in fixing the basis of representation, though in reality they
only represented the masters' ownership. But nobody would have been at a
loss to see the absurdity of counting three fifths of the Northern ships
as population. Even a Webster Whig of sixty-five years later could,
perhaps, have understood that that was something more than an
"unimportant anomaly." There was no clearer-headed man in the
convention than Gouverneur Morris; yet he said that he was "compelled to
declare himself reduced to the dilemma of doing injustice to the
Southern States or to human nature, and he must do it to the former." C.
C. Pinckney of South Carolina declared that he was "alarmed" at such an
avowal as that. Yet had the question been one of counting three fifths
of the Northern ships in the enumeration of population, Morris would
have discovered no "dilemma," and Pinckney nothing to be "alarmed" at.
So palpable an outrage on common sense would have been merely laughed at
by both.
[Illustration: Charles Cotesworth Pinckney]
In reply to Pinckney, however, Morris grew bolder. "It was high time,"
he said, "to speak out." He came there "to form a compact for the good
of America. He hoped and believed that all would enter into such
compact. If they would not, he was ready to join with any States that
would. But as the compact was to be voluntary, it is in vain for the
Eastern States to insist on what the Southern States will never agree
to. It is equally vain for the latter to require what the other States
can never admit, and he verily believed the people of Pennsylvania will
never agree to a representation of negroes;" of negroes, he meant,
counted as human beings, not for their own representation, but, as ships
might be counted, for the increased representation of those who held
them as property. The next day he "spoke out" still more plainly. "If
negroes," he said, "were to be viewed as inhabitants, ... they ought to
be added in their entire number, and not in the proportion of three
fifths. If as property, the word 'wealth' was right,"--as the basis,
that is, of representation. The distinction that had been set up by
Madison and others between the Northern and Southern States he
considered as heretical and groundless. But it was persisted in, and "he
saw that the Southern gentlemen will not be satisfied unless they see
the way open to their gaining a majority in the public councils....
Either this distinction [between the North and the South] is fictitious
or real; if fictitious, let it be dismissed, and let us proceed with due
confidence. If it be real, instead of attempting to blend incompatible
things, let us at once take a friendly leave of each other."
But could they take "a friendly leave of each other"? Should a union be
secured on the terms the South offered? or should it be declined, as
Morris proposed, if it could not be a union of equality? The next day
Madison again set forth the real issue, quietly but unmistakably. "It
seemed now," he said, "to be pretty well understood that the real
difference of interests lay, not between the large and small, but
between the Northern and Southern States. The institution of slavery and
its consequences formed the line of discrimination." There is sometimes
great power, as he well knew, in firm reiteration. So long as slavery
lasted, the lesson he then inculcated was never forgotten.
Thenceforward, as then, "the line of discrimination," in Southern
politics, lay with "slavery and its consequences." One side would abate
nothing of its demands; there could be no "friendly leave" unless the
determination, on the other side, to overcome the desire for union and
take the consequences was equally firm.
When the question again came up, however, Morris had not lost heart. His
talk was the talk of a modern abolitionist:--
"He never would concur in upholding domestic slavery. It was a
nefarious institution. It was the curse of Heaven on the States
where it prevailed. Compare the free regions of the Middle States,
where a rich and noble cultivation marks the prosperity and
happiness of the people, with the misery and poverty which
overspread the barren wastes of Virginia, Maryland, and the other
States having slaves. Travel through the whole continent, and you
behold the prospect continually varying with the appearance and
disappearance of slavery.... Proceed southwardly, and every step
you take through the great regions of slavery presents a desert
increasing with the increasing proportion of these wretched beings.
Upon what principle is it that the slaves shall be computed in the
representation? Are they men? Then make them citizens, and let them
vote. Are they property? Why then is no other property included?
The houses in this city [Philadelphia] are worth more than all the
wretched slaves who cover the rice swamps of South Carolina.... And
what is the proposed compensation to the Northern States for a
sacrifice of every principle of right, of every impulse of
humanity? They are to bind themselves to march their militia for
the defense of the Southern States, for their defense against those
very slaves of whom they complain. They must supply vessels and
seamen in case of foreign attack. The legislature will have
indefinite power to tax them by excises and duties on imports, both
of which will fall heavier on them than on the Southern
inhabitants; for the Bohea tea used by a Northern freeman will pay
more tax than the whole consumption of the miserable slave, which
consists of nothing more than his physical subsistence and the rags
that cover his nakedness.... Let it not be said that direct
taxation is to be proportioned to representation. It is idle to
suppose that the general government can stretch its hand directly
into the pockets of the people scattered over so vast a country....
He would sooner submit himself to a tax for paying for all the
negroes in the United States than saddle posterity with such a
Constitution."
So much of this as was not already fact was prophecy. Yet not many weeks
later this impassioned orator put his name to the Constitution, though
it had grown meanwhile into larger pro-slavery proportions. There was
undoubtedly some sympathy with him among a few of the members; but the
general feeling was more truly expressed a few days later by Rutledge of
South Carolina, in the debate on the continuance of the African slave
trade. "Religion and humanity," he said, "had nothing to do with this
question. Interest alone is the governing principle with nations. The
true question at present is, whether the Southern States shall or shall
not be parties to the Union. If the Northern States consult their
interest, they will not oppose the increase of slaves, which will
increase the commodities of which they will become the carriers." The
response came from Connecticut, Oliver Ellsworth saying: "Let every
State import what it pleases. The morality or wisdom of slavery are
considerations belonging to the States themselves. What enriches a part
enriches the whole,"--especially Newport and its adjacent coasts, he
might have added, with its trade to the African coast.
But a Virginian, George Mason, had another tone. He called the traffic
"infernal." "Slavery," he went on, "discourages arts and manufactures.
The poor despise labor when performed by slaves. They prevent the
emigration of whites, who really enrich and strengthen a country. They
produce the most pernicious effect on manners. Every master of slaves is
born a petty tyrant. They bring the judgment of Heaven on a country. As
nations cannot be rewarded or punished in the next world, they must be
in this. By an inevitable chain of causes and effects, Providence
punishes national sins by national calamities."
These were warnings worth heeding. But Ellsworth retorted with a sneer:
"As he had never owned a slave, he could not judge of the effect of
slavery on character." He said, however, that, "if it was to be
considered in a moral light, we ought to go farther, and free those
already in the country." But, so far from that, he thought it would be
"unjust toward South Carolina and Georgia," in whose "sickly rice
swamps" negroes died so fast, should there be any intermeddling to
prevent the importation of fresh Africans to labor, and, of course, to
perish there. Perhaps it was this shrewd argument of the Connecticut
delegate that suggested, half a century afterward, to a Mississippi
agricultural society, the economical calculation that it was cheaper to
use up a gang of negroes every few years, and supply its place by a
fresh gang from Virginia, than rely upon the natural increase that would
follow their humane treatment as men and women. His colleague, Roger
Sherman, came to Ellsworth's aid. It would be, he thought, the duty of
the general government to prohibit the foreign trade in slaves, and,
should this be left in its power, it would probably be done. But he
would not, if the Southern States made it the condition of consenting to
the Constitution that the trade should be protected, leave it in the
power of the general government to do that which he acknowledged that it
should and probably would do.
Delegates from Georgia and the Carolinas declared that to be the
condition,--among them C. C. Pinckney of South Carolina. "He should
consider," he said, "a rejection of the clause as an exclusion of South
Carolina from the Union." Nevertheless he said to the people at home,
when they came together to consider the Constitution: "We are so weak
that by ourselves we could not form a union strong enough for the
purpose of effectually protecting each other. Without union with the
other States, South Carolina must soon fall." On the part of that State
it had been a game of brag all along. The first lesson in the South
Carolinian policy was given in the Constitutional Convention. Of the
result, this was Pinckney's summing up to his constituents:--
"By this settlement we have secured an unlimited importation of
negroes for twenty years; nor is it declared that the importation
shall be then stopped; it may be continued. We have a security that
the general government can never emancipate them, for no such
authority is granted.... We have obtained a right to recover our
slaves, in whatever part of America they may take refuge, which is
a right we had not before. In short, considering all circumstances,
we have made the best terms, for the security of this species of
property, it was in our power to make. We would have made better if
we could, but on the whole I do not think them bad."
A more moderate and a more significant statement could hardly have been
made.
On the foreign slave trade Madison had little to say, but, like most of
the Southern delegates north of the Carolinas, he was opposed to it.
"Twenty years," he said, "will produce all the mischief that can be
apprehended from the liberty to import slaves. So long a term will be
more dishonorable to the American character than to say nothing about
it in the Constitution." The words are a little ambiguous, though he is
his own reporter. But what he meant evidently was, that any protection
of the trade would dishonor the nation; for at another point of the
debate, on the same day, he said that "he thought it wrong to admit in
the Constitution the idea that there could be property in men." Such
property he was anxious to protect as the great Southern interest, so
long as it lasted; but he was not willing to strengthen it by permitting
the continuance of the African slave trade for twenty years longer under
the sanction of the Constitution. But he held it to be, as he wrote in
"The Federalist," "a great point gained in favor of humanity that a
period of twenty years may terminate forever within these States a
traffic which has so long and so loudly upbraided the barbarism of
modern policy." He added, "The attempt that had been made to pervert
this clause into an objection against the Constitution, by representing
it as a criminal toleration of an illicit practice," was a
misconstruction which he did not think deserving of an answer.
It was, in fact, a bargain which he had not approved of, and did not now
probably care to talk about. It was made at the suggestion of Gouverneur
Morris, who moved that the foreign slave trade, a navigation act, and a
duty on exports be referred for consideration to a committee. "These
things," he said, "may form a bargain among the Northern and Southern
States." When the committee reported in favor of the slave trade, C. C.
Pinckney proposed that its limitation should be extended from 1800 to
1808. Gorham of Massachusetts seconded the motion, and it was carried by
the addition of the votes of New Hampshire, Massachusetts, and
Connecticut to those of Maryland, North Carolina, South Carolina, and
Georgia.
The committee also reported the substitution of a majority vote for that
of two thirds in legislation relating to commerce. The concession was
made without much difficulty, a Georgia delegate and three of the four
South Carolina delegates favoring it, two of the latter frankly saying
they did so to gratify New England. It was, C. C. Pinckney said, "the
true interest of the Southern States to have no regulation of commerce;"
but he assented to this proposition, and his constituents "would be
reconciled to this liberality," because, among other considerations, of
"the liberal conduct [of the New England States] towards the views of
South Carolina." There was no question of the meaning of this sudden
avowal of friendly feeling. Jefferson relates in his "Ana," on the
authority of George Mason, a member of the convention, that Georgia and
South Carolina had "struck up a bargain with the three New England
States, that if they would admit slaves for twenty years, the two
southernmost States would join in changing the clause which required two
thirds of the legislature in any vote."
The settlement of these questions was an opportune moment for the
introduction of that relating to fugitive slaves. Butler of South
Carolina immediately proposed a section which should secure their return
to their masters, and it was passed without a word. As Pinckney said in
the passage already quoted, when he went back to report to his
constituents, "it is a right to recover our slaves, in whatever part of
America they may take refuge, which is a right we had not before."
It is notable how complete and final a settlement of the slavery
question "these compromises," as they were called, seemed to be to those
who made them. They were meant to be, as Mr. Madison called them,
"adjustments of the different interests of different parts of the
country," and being once agreed upon they were considered as having the
binding force and stability of a contract. The evils of slavery were set
forth as an element in the negotiation, but no question of essential
morality was raised that brought the system within the category of
forbidden wrong. Whatever results might follow would be limited, it was
thought, by the terms of the contract; whereas, in fact, the actual
results were not foreseen, and could not be guarded against, except by
the refusal to enter into any contract whatever.
On all other questions involving political principles,--the just
relations of the federal government and the governments of the States;
the relations between the larger and the smaller States; the regulation
of the functions of the executive, the legislative, and the judicial
departments of government,--on all these the framers of the
Constitution brought to bear the profoundest wisdom. When one reflects
upon the magnitude and character of the work, Madison's conclusion seems
hardly extravagant, that "adding to these considerations the natural
diversity of human opinions on all new and complicated subjects, it is
impossible to consider the degree of concord which ultimately prevailed
as less than a miracle." There were, nevertheless, the gravest and most
anxious doubts how far the Constitution would stand the test of time;
yet as a system of government for a nation of freemen it remains to this
day practically unchanged. But where its architects thought themselves
wisest they were weakest. That which they thought they had settled
forever was the one thing which they did not settle. Of all the
"adjustments" of the Constitution, slavery was precisely that one which
was not adjusted.
Madison's responsibility for this result was that of every other
delegate,--no more and no less. Neither he nor they, whether more or
less opposed to slavery, saw in it a system so subversive of the rights
of man that no just government should tolerate it. That was reserved for
a later generation, and even that was slow to learn. To the fathers it
was, at worst, only an unfortunate and unhappy social condition, which
it would be well to be rid of if this could be done without too much
sacrifice; but otherwise, to be submitted to, like any other
misfortune.
While it did exist, however, Madison believed it should be protected,
though not encouraged, as a Southern interest. The question resolved
itself into one of expediency,--of union or disunion. What disunion
would be, he knew, or thought he knew. Perhaps he was mistaken.
Disunion, had it come then, might have been the way to a true union. "We
are so weak," said C. C. Pinckney, "that by ourselves we could not form
a union strong enough for the purpose of effectually protecting each
other. Without union with the other States, South Carolina must soon
fall." But he was careful to say this at home, not in Philadelphia. In
the convention, Madison wrote a month after it adjourned, "South
Carolina and Georgia were inflexible on the point of the slaves." What
was to be the union which that inflexibility carried was not foreseen.
It was the children's teeth that were to be set on edge.