History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 8

The Northern States, on the other hand, resisted the direct introduction of the slaves into the representation, as persons; and it was plain that, if they were to be treated as property, and the representation was to be regulated by a rule of wealth, their value as property must be compared with that of other species of personalty held in the same and in other States, and some principles for computing it must be ascertained. Upon such economical questions as these, the agreement of different minds, under the influence of different interests, was absolutely impossible.

Thus the knot of these complicated difficulties could only be cut by the sword of compromise. In whatever direction a theoretical rule was applied,--whatever view was taken of the slave, as a person or as an article of property; as a productive laborer equally or less valuable to the State when compared with the freeman,--whatever principles were maintained upon the question whether numbers const.i.tute a proper measure of the wealth of a community, and one that will work out the same result in communities where slavery exists, as well as where it is absent,--absolute truth, or what the whole country would receive as such, was unattainable. But an adjustment of the problem, founded on mutual conciliation and a desire to be just, was not impossible.

The two objects to be accomplished were to avoid the offence that might be given to the Northern States by making the slaves in direct terms an ingredient in the rule of representation, and, on the other hand, to concede to the Southern States the right to have their representation enhanced by the same enumeration of their slaves that might be adopted for the purpose of apportioning direct taxation.

These objects were effected by an arrangement proposed by Wilson. It consisted, first, in affirming the maxim that representation ought to be proportioned to direct taxation; and then, by directing a periodical census of the free inhabitants, and three fifths of all other persons, to be taken by the authority of the United States, and that the direct taxation should be apportioned among the States according to this census of persons. The principle was thus established, that, for the purpose of direct taxation, the number of inhabitants in each State should be a.s.sumed as the measure of its relative wealth; and that its right of representation should be regulated by the same measure; and as the slaves were to be admitted into the rule for taxation in the proportion of three fifths of their number only,--apparently upon the supposition that the labor of a slave is less valuable to the State than the labor of a freeman,--so they were in the same proportion only to enhance the representation.

This expedient was adopted by the votes of a large majority of the States;[107] but since it had been moved as an amendment to the proposition previously accepted, which affirmed that the representation ought to be regulated by the combined rule of numbers and wealth, it appeared, when brought into that connection, to rest the representation of the slaveholding States in respect to the slaves, in part at least, upon the idea of property. To avoid all discrepancy in the application of the rule to the two subjects of representation and taxation, Governor Randolph proposed to strike the word "wealth" from the resolution; and this, having been done by a vote nearly unanimous,[108] left the enumeration of the slaves for both purposes an enumeration of persons, in less than their whole numbers; placing them in the rule for taxation, not as property and subjects of taxation, but as const.i.tuting part of an a.s.sumed measure of the wealth of a State, just as the free inhabitants const.i.tuted another part of the same measure, and placing them in the same ratio and in the same capacity in the rule for representation.[109]

The basis of the House of Representatives having been thus agreed to, the remaining part of the report, which involved the basis of the Senate, was then taken up for consideration. Wilson, King, Madison, and Randolph still opposed the equality of votes in the Senate, upon the ground that the government was to act upon the people and not upon the States, and therefore the people, not the States, should be represented in every branch of it. But the whole plan of representation embraced in the amended report, including the equality of votes in the Senate, was adopted, by a bare majority, however, of the States present.[110]

When this result was announced, Governor Randolph complained of its embarra.s.sing effect on that part of the plan of a const.i.tution which concerned the powers to be vested in the general government; all of which, he said, were predicated upon the idea of a proportionate representation of the States in both branches of the legislature. He desired an opportunity to modify the plan, by providing for certain cases to which the equality of votes should be confined; and in order to enable both parties to consult informally upon some expedient that would bring about a unanimity, he proposed an adjournment. On the following morning, we are told by Mr. Madison, the members opposed to an equality of votes in the Senate became convinced of the impolicy of risking an agreement of the States upon any plan of government by an inflexible opposition to this feature of the scheme proposed, and it was tacitly allowed to stand.[111]

Great praise is due to the moderation of those who made this concession to the fears and jealousies of the smaller States. That it was felt by them to be a great concession, no one can doubt, who considers that the chief cause which had brought about this convention of the States was the inefficiency of the "federal" principle on which the former Union had been established. Looking back to all that had happened since the Confederation was formed,--to the repeated failures of the States to comply with the const.i.tutional demands of the Congress, and to the entire impracticability of a system that had no true legislative basis, and could therefore exert no true legislative power,--we ought not to be surprised that the retention of the principle of an equal State representation in any part of the new government should have been resisted so strenuously and so long.

That the final concession of this point was also a wise and fortunate determination, there can be no doubt. Those who made it probably did not foresee all its advantages, or comprehend all its manifold relations. They looked to it, in the first instance, as the means of securing the acceptance of the Const.i.tution by all the States, and thus of preventing the evils of a partial confederacy. They probably did not at once antic.i.p.ate the benefits to be derived from giving to a majority of the States a check upon the legislative power of a majority of the whole people of the United States. Complicated as this check is, it both recognizes and preserves the residuary sovereignty of the States; it enables them to hold the general government within its const.i.tutional sphere of action; and it is in fact the only expedient that could have been successfully adopted, to preserve the State governments, and to avoid the otherwise inevitable alternative of conferring on the general government plenary legislative power upon all subjects. It is a part of the Const.i.tution which it is vain to try by any standard of theory; for it was the result of a mere compromise of opposite theories and conflicting interests. Its best eulogium is to be found in its practical working, and in what it did to produce the acceptance of a const.i.tution believed, at the time of its adoption, to have given an undue share of influence and power to the larger members of the confederacy.[112]

NOTE ON THE POPULATION OF THE SLAVEHOLDING AND NON-SLAVEHOLDING STATES.

Although, at the time of the formation of the Const.i.tution, slavery had been expressly abolished in two of the States only (Ma.s.sachusetts and New Hamps.h.i.+re), the framers of that instrument practically treated all but the five Southern States as if the inst.i.tution had been already abolished within their limits, and counted all the colored persons therein, whether bond or free, as part of the free population; a.s.suming that the eight Northern and Middle States would be free States, and that the five Southern States would continue to be slave States. This appears from the whole tenor of the debates, in which the line is constantly drawn, as between slaveholding and non-slaveholding States, so as to throw eight States upon the Northern and five upon the Southern side. I have found also, in a newspaper of that period (New York Daily Advertiser, February 5, 1788), the following

"ESTIMATE OF THE POPULATION OF THE STATES MADE AND USED IN THE FEDERAL CONVENTION, ACCORDING TO THE MOST ACCURATE ACCOUNTS THEY COULD OBTAIN."

New Hamps.h.i.+re, 102,000 Ma.s.sachusetts, 360,000 Rhode Island, 58,000 Connecticut, 202,000 New York, 238,000 New Jersey, 138,000 Pennsylvania, 360,000 Delaware, 37,000 ---------1,495,000 Maryland, including three fifths of 80,000 negroes, 218,000 Virginia, " " 280,000 " 420,000 North Carolina, " " 60,000 " 200,000 South Carolina, " " 80,000 " 150,000 Georgia, " " 20,000 " 90,000 ---------1,078,000

The authenticity of this table is established by referring to a speech made by General Pinckney in the legislature of South Carolina, in which he introduced and quoted it at length.

(Elliot's Debates, IV. 283.)

From this it appears that the estimated population of the eight Northern and Middle States, adopted in the Convention, was 1,495,000; that of the five Southern States (including three fifths of an estimated number of negroes) was 1,078,000. Comparing this estimate with the results of the first census, it will be seen that the _total_ population of the eight Northern and Middle States exceeds the _federal_ population of the five Southern States, in the census of 1790, in about the same ratio as the former exceeds the latter in the estimate employed by the Convention. Thus in 1790 the _total_ population of the eight Northern and Middle States, including all slaves, was 1,845,595; the _federal_ population of the five Southern States, including three fifths of the slaves, was 1,540,048;--excess 305,547. In the estimate of 1787, the population allotted to the eight Northern and Middle States was 1,495,000; that allotted to the five Southern States, counting only three fifths of the estimated number of slaves, was 1,078,000;--excess in favor of the eight States, 417,000. This calculation shows, therefore, that, in estimating the population of the different States for the purpose of adjusting the first representation in Congress, the Convention applied the rule of three fifths of the slaves to the five Southern States only, and that as to the other eight States no discrimination was made between the different cla.s.ses of their inhabitants.

Other methods of comparing the estimate of 1787 with the census of 1790 will lead to the same conclusion.

FOOTNOTES:

[86] The committee consisted of Gerry, Ellsworth, Yates, Patterson, Franklin, Bedford, Martin, Mason, Davie, Rutledge, and Baldwin.

[87] The committee was appointed on the 2d of July, and made their report on the 5th. The Convention in the interval transacted no business.

[88] See further as to this exclusive power of the House, _post._

[89] Madison, Butler, Gouverneur Morris, and Wilson.

[90] Five States voted to retain it, three voted against it, and three were divided. This was treated as an affirmative vote. Elliot, V. 255.

[91] Connecticut, New York, New Jersey, Delaware, Maryland, North Carolina, _ay_ 6; Pennsylvania, Virginia, South Carolina, _no_,3; Ma.s.sachusetts, Georgia, divided. Ibid. 285, 286.

[92] Gouverneur Morris, Gorham, Randolph, Rutledge, and King.

[93] They gave to New Hamps.h.i.+re, 2; Ma.s.sachusetts, 7; Rhode Island, 1; Connecticut, 4; New York, 5; New Jersey, 3; Pennsylvania, 8; Delaware, 1; Maryland, 4; Virginia, 9; North Carolina, 5; South Carolina, 5; Georgia, 2.

[94] Elliot, V. 287, 288.

[95] This apportionment gave to New Hamps.h.i.+re, 3; Ma.s.sachusetts, 8; Rhode Island, 1; Connecticut, 5; New York, 6; New Jersey, 4; Pennsylvania, 8; Delaware, 1; Maryland, 6; Virginia, 10; North Carolina, 5; South Carolina, 5; Georgia, 3.

[96] See Mr. Gorham's explanation; Madison, Elliot, V. 288.

[97] Sherman and Gorham.

[98] Of North Carolina.

[99] Ma.s.sachusetts, Connecticut, New Jersey, Pennsylvania, Virginia, North Carolina, _ay_, 6; Delaware, Maryland, South Carolina, Georgia, _no_, 4. The votes of South Carolina and Georgia were given in the negative, because they desired that the blacks should be included in the census equally with the whites. For the same reason, as we shall see presently, those States voted against the other branch of the proposition, which would give but three fifths of the slaves. But upon what principle, unless it was from general opposition to all numerical representation, the State of Delaware should have voted with them on both of these features of the proposed census, is, I confess, to me inexplicable.

[100] Connecticut, Virginia, North Carolina, Georgia, _ay_, 4; Ma.s.sachusetts, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, _no_, 6. South Carolina voted in the negative, for a reason suggested in the previous note, _ante_, p. 153.

[101] See the note on the population of the slaveholding and non-slaveholding States, at the end of this chapter.

[102] See Mr. Jefferson's notes of this debate in the Congress of 1776, Works, Vol. I. pp. 26-30. John Adams's Works, Vol. II. pp.

496-498.

[103] Samuel Chase of Maryland.

[104] See _ante_, Vol. I. pp. 210-213.

[105] See Mr. Madison's notes of the debate in the Congress of 1783, Elliot, V. 78-80. Journals of Congress, VIII. 188 (April 18, 1783).

_Ante_, Vol. I. p. 213.

[106] See the remarks of General Pinckney, Mr. Mason, Mr. Butler, and Governor Randolph. Elliot, V. 294-305.

[107] Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, Georgia, _ay_, 6; New Jersey, Delaware, _no_, 2; Ma.s.sachusetts, South Carolina, divided.

[108] The only opposition was from Delaware, the vote of which was divided.

[109] See the note at the end of this chapter.

[110] Connecticut, New Jersey, Delaware, Maryland, North Carolina (Mr.

Spaight, _no_), _ay_, 5; Pennsylvania, Virginia, South Carolina, Georgia, _no_, 4; Ma.s.sachusetts divided (Mr. Gerry, Mr. Strong, _ay_, Mr. King, Mr. Gorham, _no_). The delegates of New York were all absent; Messrs. Yates and Lansing left the Convention on the 5th of July, after the principle of popular representation had been adopted.

Colonel Hamilton was absent on private business. If the two former had been present, the vote of the State would doubtless have been given in favor of the report, on account of the basis which it gave to the Senate.

[111] Elliot, V. 319.

[112] Mr. Madison, who was to the last a strenuous opponent of the equality of votes in the Senate, candidly and truly stated its merits in the 62d number of the Federalist, as they had been disclosed to him by subsequent reflection.

CHAPTER VIII.

POWERS OF LEGISLATION.--CONSt.i.tUTION AND CHOICE OF THE EXECUTIVE.--CONSt.i.tUTION OF THE JUDICIARY.--ADMISSION OF NEW STATES.--COMPLETION OF THE ENGAGEMENTS OF CONGRESS.--GUARANTY OF REPUBLICAN CONSt.i.tUTIONS.--OATH TO SUPPORT THE CONSt.i.tUTION.--RATIFICATION.--NUMBER OF SENATORS.--QUALIFICATIONS FOR OFFICE.--SEAT OF GOVERNMENT.