considered: What should be the number of representatives in the first
branch of the Legislature? Ought the number from each State to be fixed,
or to increase with the increase of population? Ought population alone
to be the basis of apportionment, or should property be taken into
account? Whatever rule might be adopted, no apportionment founded upon
population could be made until an enumeration of the inhabitants should
have been taken. The number of representatives was, therefore, for the
time being, fixed at sixty-five, and apportioned as directed by the
Constitution.
In establishing a rule of future apportionment, great diversity of
opinion was expressed. Although slavery then existed in all the States
except Massachusetts, the great mass of the slave population was in the
Southern States. These States claimed a representation according to
numbers, bond and free, while the Northern States were in favor of a
representation according to the number of free persons only. This rule
was forcibly urged by several of the Northern delegates. Mr. Paterson
regarded slaves only as property. They were not represented in the
States; why should they be in the General Government? They were not
allowed to vote; why should they be represented? It was an encouragement
of the slave trade. Said Mr. Wilson: "Are they admitted as citizens?
Then why not on an equality with citizens? Are they admitted as
property? Then why is not other property admitted into the computation?"
A large portion of the members of the convention, from both sections of
the Union, aware that neither extreme could be carried, favored the
proposition to count the whole number of free citizens and three-fifths
of all others.
Prior to this discussion, a select committee, to whom this subject had
been referred, had reported in favor of a distribution of the members on
the basis of wealth and numbers, to be regulated by the Legislature.
Before the question was taken on this report, a proviso was moved and
agreed to that direct taxes should be in proportion to representation.
Subsequently a proposition was moved for reckoning three-fifths of the
slaves in estimating taxes, and making taxation the basis of
representation, which was adopted, New Jersey and Delaware against it,
Massachusetts and South Carolina divided; New York not represented, her
three delegates being all absent. Yates and Lansing, both of the State
rights party, considering their powers explicitly confined to a revision
of the confederation, and being chagrined at the defeat of their
attempts to secure an equal vote in the first branch of the Legislature,
had left the convention, not to return. From that time (July 11th) New
York had no vote in the convention. Alexander Hamilton had left before
the others, to be absent six weeks; and though he returned and took part
in the deliberations, the State, not having two delegates present, was
not entitled to a vote. On the 23d Gilman and Langdon, the delegates
from New Hampshire, arrived, when eleven States were again represented.
The term of service of members of the first branch was reduced to two
years, and of those of the second branch to six years; one-third of the
members of the latter to go out of office every two years; the
representation in this body to consist of two members from each State,
voting individually, as in the other branch, and not by States, as under
the confederation. Sundry other modifications were made in the
provisions relating to this department.
The reported plan of the executive department was next considered. After
much discussion, and several attempts to strike out the ineligibility of
the executive a second time, and to change the term of office and the
mode of election, these provisions were retained.
The report of the committee of the whole, as amended, was accepted by
the convention, and, together with the New Jersey plan, and a third
drawn by Charles Pinckney, of South Carolina, was referred to a
committee of detail, consisting of Messrs. Rutledge, Randolph, Gorham,
Ellsworth, and Wilson, who, on August 6th, after an adjournment of ten
days, reported the Constitution in proper form, having inserted some new
provisions and altered certain others. Our prescribed limits forbid a
particular account of the subsequent alterations which the Constitution
received before it was finally adopted by the convention. There is one
provision, however, which, as it forms one of the great "Compromises of
the Constitution," deserves notice.
To render the Constitution acceptable to the Southern States, which were
the principal exporting States, the committee of detail had inserted a
clause providing that no duties should be laid on exports, or on slaves
imported; and another, that no navigation act might be passed except by
a two-thirds vote. By depriving Congress of the power of giving any
preference to American over foreign shipping, it was designed to secure
cheap transportation to Southern exports. As the shipping was
principally owned in the Eastern States, their delegates were equally
anxious to prevent any restriction of the power of Congress to pass
navigation laws. All the States, except North Carolina, South Carolina,
and Georgia, had prohibited the importation of slaves; and North
Carolina had proceeded so far as to discourage the importation by heavy
duties. The prohibition of duties on the importation of slaves was
demanded by the delegates from South Carolina and Georgia, who declared
that, without a provision of this kind, the Constitution would not
receive the assent of these States. The support which the proposed
restriction received from other States was given to it from a
disposition to compromise, rather than from an approval of the measure
itself. The proposition not only gave rise to a discussion of its own
merits, but revived the opposition to the apportionment of
representatives according to the three-fifths ratio, and called forth
some severe denunciations of slavery.
Rufus King, in reference to the admission of slaves as a part of the
representative population, remarked: "He had not made a strenuous
opposition to it heretofore because he had hoped that this concession
would have produced a readiness, which had not been manifested, to
strengthen the General Government. The report of the committee put an
end to all these hopes. The importation of slaves could not be
prohibited; exports could not be taxed. If slaves are to be imported,
shall not the exports produced by their labor supply a revenue to help
the government defend their masters? There was so much inequality and
unreasonableness in all this that the people of the Northern States
could never be reconciled to it. He had hoped that some accommodation
would have taken place on the subject; that at least a time would have
been limited for the importation of slaves. He could never agree to let
them be imported without limitation, and then be represented in the
National Legislature. Either slaves should not be represented, or
exports should be taxable."
Gouverneur Morris pronounced slavery "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. The admission of slaves into the representation, when fairly
explained, comes to this, that the inhabitant of Georgia and South
Carolina, who goes to the coast of Africa in defiance of the most sacred
laws of humanity, tears away his fellow-creatures from their dearest
connections, and damns them to the most cruel bondage, shall have more
votes in a government instituted for the protection of the rights of
mankind, than the citizen of Pennsylvania and New Jersey, who views with
a laudable horror so nefarious a practice.
"And what is the proposed compensation to the Northern States for a
sacrifice of every principle of right, every impulse of humanity? They
are to bind themselves to march their militia for the defence of the
Southern States, against those very slaves of whom they complain. 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 rag which covers his
nakedness. On the other side, the Southern States are not to be
restrained from importing fresh supplies of wretched Africans, at once
to increase the danger of attack and the difficulty of defence; nay,
they are to be encouraged to it by an assurance of having their votes in
the National Government increased in proportion, and, at the same time,
are to have their slaves and their exports exempt from all contributions
to the public service." Gouverneur Morris moved to make the free
population alone the basis of representation.
Roger Sherman, who had on other occasions manifested a disposition to
compromise, again favored the Southern side. He "did not regard the
admission of the negroes as liable to such insuperable objections. It
was the freemen of the Southern States who were to be represented
according to the taxes paid by them, and the negroes are only included
in the estimate of the taxes."
After some further discussion the question was taken upon Morris'
motion, and lost, New Jersey only voting for it.
With respect to prohibiting any restriction upon the importation of
slaves, Luther Martin, of Maryland, who moved to allow a tax upon slaves
imported, remarked: "As five slaves in the apportionment of
representatives were reckoned as equal to three freemen, such a
permission amounted to an encouragement of the slave trade. Slaves
weakened the Union which the other parts were bound to protect; the
privilege of importing them was therefore unreasonable. Such a feature
in the Constitution was inconsistent with the principles of the
Revolution, and dishonorable to the American character."
John Rutledge "did not see how this section would encourage the
importation of slaves. He was not apprehensive of insurrections, and
would readily exempt the other States from every obligation to protect
the South. Religion and humanity 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."
Oliver Ellsworth said: "Let every State import what it pleases. The
morality or wisdom of slavery is a consideration belonging to the
States. What enriches a part enriches the whole, and the States are the
best judges of their particular interests."
Charles Pinckney said: "South Carolina can never receive the plan if it
prohibits the slave trade. If the States be left at liberty on this
subject, South Carolina may, perhaps, by degrees, do of herself what is
wished, as Maryland and Virginia already have done."
Roger Sherman concurred with his colleague Mr. Ellsworth. "He
disapproved of the slave trade; but as the States now possessed the
right, and the public good did not require it to be taken away, and as
it was expedient to have as few objections as possible to the proposed
scheme of government, he would leave the matter as he found it. The
abolition of slavery seemed to be going on, and the good sense of the
several States would probably, by degrees, soon complete it."
George Mason said: "Slavery discourages arts and manufactures. The poor
despise labor when performed by slaves. They prevent the immigration of
whites, who really enrich and strengthen a country. They produce a
pernicious effect on manners. Every master of slaves is born a petty
tyrant. They bring the judgment of Heaven on a country. He lamented
that some of our Eastern brethren, from a lust of gain, had embarked in
this nefarious traffic. As to the States being in possession of the
right to import, that was the case of many other rights now to be given
up. He held it essential, in every point of view, that the General
Government should have power to prevent the increase of slavery."
Ellsworth, not well pleased with this thrust at his slave-trading
friends at the North by a slaveholder, tartly replied: "As I have never
owned a slave, I cannot judge of the effects of slavery on character;
but if slavery is to be considered in a moral light, the convention
ought to go further, and free those already in the country." The
opposition of Virginia and Maryland to the importation of slaves he
attributed to the fact that, on account of their rapid increase in those
States, "it was cheaper to raise them there than to import them, while
in the sickly rice-swamps foreign supplies were necessary. If we stop
short with prohibiting their importation, we shall be unjust to South
Carolina and Georgia. Let us not intermeddle. As population increases,
poor laborers will be so plenty as to render slaves useless. Slavery, in
time, will not be a speck in our country."
Delegates from South Carolina and Georgia repeated the declaration that
"if the slave trade were prohibited, these States would not adopt the
Constitution." "Virginia," it was said, "would gain by stopping the
importation, she having slaves to sell; but it would be unjust to South
Carolina and Georgia to be deprived of the right of importing. Besides,
the importation of slaves would be a benefit to the whole Union: The
more slaves, the more produce, the greater carrying trade, the more
consumption, the more revenue."
The injustice of exempting slaves from duty, while every other import
was subject to it, having been urged by several members in the course of
the debate, Charles Pinckney expressed his consent to a tax not
exceeding the same on other imports, and moved to refer the subject to a
committee. The motion was seconded by John Rutledge, and, at the
suggestion of Gouverneur Morris, was so modified as to include the
clauses relating to navigation laws and taxes on exports. The commitment
was opposed by Messrs. Sherman and Ellsworth; the former on the ground
that taxes on slaves imported implied that they were property; the
latter from the fear of losing two States. Edmund Randolph was in favor
of the motion, hoping to find some middle ground upon which they could
unite. The motion prevailed, and the subject was referred to a committee
of one from each State. The committee retained the prohibition of duties
on exports; struck out the restriction on the enactment of navigation
laws; and left the importation of slaves unrestricted until the year
1800; permitting Congress, however, to impose a duty upon the
importation.
The debate upon this report of the "grand committee" is condensed, by
Hildreth, into the two following paragraphs:
"Williamson declared himself, both in opinion and practice, against
slavery; but he thought it more in favor of humanity, from a view of all
circumstances, to let in South Carolina and Georgia on these terms, than
to exclude them from the Union. Sherman again objected to the tax, as
acknowledging men to be property. Gorham replied that the duty ought to
be considered, not as implying that men are property, but as a
discouragement to their importation. Sherman said the duty was too small
to bear that character. Madison thought it 'wrong to admit, in the
Constitution, the idea that there could be property in man'; and the
phraseology of one clause was subsequently altered to avoid any such
implication. Gouverneur Morris objected that the clause gave Congress
power to tax freemen imported; to which George Mason replied that such a
power was necessary to prevent the importation of convicts. A motion to
extend the time from 1800 to 1808, made by Pinckney, and seconded by
Gorham, was carried against New Jersey, Pennsylvania, Delaware, and
Virginia; Massachusetts, Connecticut, and New Hampshire voting this time
with Georgia and South Carolina. That part of the report which struck
out the restriction on the enactment of navigation acts was opposed by
Charles Pinckney in a set speech, in which he enumerated five distinct
commercial interests: the fisheries and West India trade, belonging to
New England; the interest of New York in a free trade; wheat and flour,
the staples of New Jersey and Pennsylvania; tobacco, the staple of
Maryland and Virginia and partly of North Carolina; rice and indigo, the
staples of South Carolina and Georgia. The same ground was taken by
Williamson and Mason, and very warmly by Randolph, who declared that an
unlimited power in Congress to enact navigation laws would complete the
deformity of a system having already so many odious features that he
hardly knew if he could agree to it. Any restriction of the power of
Congress over commerce was warmly opposed by Gouverneur Morris, Wilson,
and Gorham. Madison also took the same side. Charles C. Pinckney did not
deny that it was the true interest of the South to have no regulation of
commerce; but considering the commercial losses of the Eastern States
during the Revolution, their liberal conduct toward the views of South
Carolina--in the vote just taken, giving eight years' further extension
to the slave trade--and the interest of the weak Southern States in
being united with the strong Eastern ones, he should go against any
restriction on the power of commercial regulation. 'He had himself
prejudices against the Eastern States before he came here, but would
acknowledge that he found them as liberal and candid as any men
whatever.' Butler and Rutledge took the same ground, and the same report
was adopted, against the votes of Maryland, Virginia, North Carolina,
and Georgia.
"Thus, by an understanding, or, as Gouverneur Morris called it, 'a
bargain,' between the commercial representatives of the Northern States
and the delegates of South Carolina and Georgia, and in spite of the
opposition of Maryland and Virginia, the unrestricted power of Congress
to pass navigation laws was conceded to the Northern merchants; and to
the Carolina rice-planters, as an equivalent, twenty years' continuance
of the African slave trade. This was the third 'Great Compromise' of the
Constitution. The other two were the concessions to the smaller States
of an equal representation in the Senate, and, to the slaveholders, the
counting of three-fifths of the slaves in determining the ratio of
representation. If this third compromise differed from the other two by
involving not only a political but a moral sacrifice, there was this
partial compensation about it, that it was not permanent, like the
others, but expired at the end of twenty years by its own limitation."
Of the important subjects remaining to be disposed of, that of the
executive department was, perhaps, the most difficult. The modified plan
of Edmund Randolph left the executive to be elected by the Legislature
for a single term of seven years. The election was subsequently given to
a college of electors, to be chosen in the States in such manner as the
legislatures of the States should direct. The term of service was
reduced from seven years to four years, and the restriction of the
office to a single term was removed. Numerous other amendments and
additions were made in going through with the draft. This amended draft
was referred, for final revision, to a committee consisting of Messrs.
Hamilton, Johnson, G. Morris, Madison, and King. Several amendments were
made even after this revision; one of which was the substitution of a
two-thirds for the three-fourths majority required to pass bills against
the veto of the President. Another was a proposition of Mr. Gorham, to
reduce the minimum ratio of representation from forty thousand, as it
stood, to thirty thousand, intended to conciliate certain members who
thought the House too small. This was offered the day on which the
Constitution was signed. General Washington having briefly addressed the
convention in favor of the proposed amendment, it was carried almost
unanimously.
The whole number of delegates who attended the convention was
fifty-five, of whom thirty-nine signed the Constitution. Of the
remaining sixteen, some had left the convention before its close; others
refused to give it their sanction. Several of the absentees were known
to be in favor of the Constitution.
Some, as has been observed, were opposed to the plan of a national
government, contending for the preservation of the confederation, with a
mere enlargement of its powers; others, though in favor of the plan
adopted, believed too much power had been given to the General
Government. Some thought that not only the powers of Congress, but those
of the executive, were too extensive; others that the executive was
"weak and contemptible," and without sufficient power to defend himself
against encroachments by the Legislature; others, still, that the
executive power of the nation ought not to be intrusted in a single
person. Although some deprecated the extensive powers of the Federal
Government as dangerous to the rights of the States, "ultra democracy"
seems to have had no representatives in the convention; while, on the
other hand, there were not a few who thought it unsafe to trust the
people with a direct exercise of power in the General Government.
Sherman and Gerry were opposed to the election of the first branch of
the Legislature by the people; as were some of the Southern delegates.
Others, among whom were Madison, Mason, and Wilson, thought no
republican government could be permanent in which the people were denied
a direct voice in the election of their representatives. Hamilton,
though in favor of making the first branch elective, proposed that the
Senate should be chosen by the people, and the executive by electors,
_chosen by electors_, who were to be chosen by the people in districts;
Senators and the President both to hold their offices during good
behavior. He was also, as were a few others, in favor of an absolute
executive veto on acts of the Legislature. He, however, signed the
Constitution, and urged others to do the same, as the only means of
preventing anarchy and confusion. While the proposed Constitution was in
every particular satisfactory to none, very few were disposed to
jeopardize the Union by the continuance of a system which _all_ admitted
to be inadequate to the objects of the Union. To the hope, therefore, of
finding the new plan an improvement on the old, and of amending its
defects if any should appear, is to be attributed the general sanction
which it received.
It is indeed remarkable that a plan of government, containing so many
provisions to which the most strenuous opposition was maintained to the
end, should have received the signatures of so large a majority of the
convention. Perhaps there never was another political body in which
views and interests more varied and opposite have been represented or a
greater diversity of opinion has prevailed. Nor is it less remarkable
that a system deemed so imperfect, not only by the mass of its framers,
but by a large portion of the eminent men who composed the State
conventions that ratified it, should have been found to answer so fully
the purpose of its formation as to require, during an experiment of more
than sixty years, no essential alteration; and that it should be
esteemed as a model form of republican government by the enlightened
friends of freedom in all countries.