William W. Freehling ONLY A FEW YEARS AGO, in a historical age now grown as arcadian as Thomas Jefferson himself, no man needed to defend the Founding Fathers on slavery. However serious were their sins and however greedy seemed their pursuits, the men who made the American Revolution were deemed to have placed black slavery at bay. Patriots such as George Washington, historians used to point out, freed their slaves, and only if Eli Whitney hadn’t invented the cotton gin, slavery would have died out in all America. This happy tale, once so important and so widely believed, now lies withered by a decade of attack. Scholars such as Robert McColley, Staughton Lynd, William Cohen, and Winthrop Jordan have assaulted every aspect of the old interpretation. Some revisionists write to correct excesses in the former view. Others are driven by a New Leftist repugnance for anyone contaminated by racism. Whatever their separate reasons and however qualified their individual positions, these scholars, taken together, have hammered out a new image of the Founding Fathers. The image is not attractive. The Declaration of Independence, it is now argued, was a white man's document that its author rarely applied to his or to any slaves. The Constitution created aristocratic privilege while consolidating black bondage. Virginia shrank from abolition, for slave prices were too high and race fears too great. Jefferson himself suspected blacks were innately inferior. He bought and sold slaves; he advertised for fugitives; he ordered lashes well laid on. He lived in the grand manner, burying prayers for freedom under an avalanche of debt. In all these evasions and missed opportunities Jefferson spoke for his age. For whatever the virtues of the Founding Fathers, concludes the new view, they hardly put slavery on the road to ultimate extinction. It seems fitting, then, that when Southerners turned their backs on the Declaration and swung toward reaction in the wake of the Missouri crisis, the sage of Monticello himself helped point the way. Many admirers of Jefferson, aware of a brighter side, scorn this judgment and yearn for a reassessment. The following essay, while in sympathy with their position, is not written for their reasons. More is at stake than Thomas Jefferson; indeed Jefferson's agonized positions on slavery are chiefly important as the supreme embodiment of a generation's travail. Moreover, the historian's task is not to judge but to explain: and the trouble with the new condemnatory view is not so much that it is a one-sided judgment of the Founding Fathers as that it distorts the process by which American slavery was abolished. The new charge that the Founding Fathers did next to nothing about bondage is as misleading as the older notion that they almost did everything. The abolitionist process proceeded slowly but inexorably from 1776 to 1860 slowly in part because of what Jefferson and his contemporaries did not do, inexorably in part because of what they did. The impact of the Founding Fathers on slavery, like the extent to which the American Revolution was revolutionary, must be seen in the long run not in terms of what changed in the late eighteenth century but in terms of how the Revolutionary experience changed the whole of American antebellum history. Any such view must place Thomas Jefferson and his contemporaries, for all their ironies and missed opportunities, back into the creeping American antislavery process. IF MEN WERE EVALUATED in terms of dreams rather than deeds everyone would concede the antislavery credentials of the Founding Fathers. No American Revolutionary could square the principles of the Declaration with the perpetuation of human bondage. Only a few men of 1776 considered the evil of slavery permanently necessary. None dared proclaim the evil a good. Most looked forward to the day when the curse could be forever erased from the land. “The love of justice and the love of country," Jefferson wrote Edward Coles in 1814, “plead equally the cause of these people, and it is a moral reproach to us that they should have pleaded it so long in vain." If the Founding Fathers unquestionably dreamed of universal American freedom, their ideological posture was weighed down equally unquestionably with conceptions of priorities, profits, and prejudices that would long make the dream utopian. The master passion of the age was not with extending liberty to blacks but with erecting republics for whites. Creative energies poured into designing a political City on the Hill: and the blueprints for utopia came to be the federal Constitution and American union. When the slavery issue threatened the Philadelphia Constitutional Convention the Deep South's ultimatums were quickly met. When the Missouri crisis threatened the Union Jefferson and fellow spirits beat a retreat. This pattern of valuing the Union more than abolition-of marrying the meaning of America to the continuation of a particular government-would persist, producing endless compromises and finally inspiring Lincoln's war. The realization of the Founding Fathers' antislavery dream was blocked also by the concern for property rights articulated in their Declaration. Jefferson's document at once denounced slave chains as immoral and sanctioned slave property as legitimate. It made the slave's right to freedom no more natural- than the master's right to property. Liberty for blacks became irrevocably tied to compensation for whites: and if some proposed paying masters for slaves, no one conceived of compensating South Carolina planters for the fabulous swamp estates emancipation would wreck. The financial cost of abolition, heavy enough by itself, was made too staggering to bear by the Founding Fathers' racism, an ideological hindrance to antislavery no less important than their sense of priorities and their commitment to property. Here again Jefferson typified the age. As Winthrop Jordan has shown, Jefferson suspected that blacks had greater sexual appetites and lower intellectual faculties than did whites. As Merrill Peterson points out, Jefferson also suspected blacks were inferior rather than suspecting blacks were equal. These suspicions, together with Jefferson’s painfully accurate prophecy that free blacks and free whites could not live harmoniously in America for centuries, made him and others tie American emancipation to African colonization. The alternative appeared to be race riot and sexual chaos. The consequence, heaping the cost of colonization on the cost of abolition, made the hurdles to emancipation seem unsurmountable. Jefferson and the men of the Revolution, however, continually dreamed of leaping ahead when the time was ripe. In 1814, while lamenting his own failure, Jefferson urged others to take up the crusade. "I had always hoped," he wrote Edward Coles--that the younger generation receiving their early impressions after the flame of liberty had been kindled in every breast ... would have sympathized with oppression wherever found, and proved their love of liberty beyond their own share of it." As late as 1824, five years after his retreat in the Missouri crisis, Jefferson suggested a federally financed abolition scheme that would have ended slavery faster than the plan proposed by his grandson, Thomas Jefferson Randolph, in the famed Virginia slavery debate of 1832. The ideological stance of Jefferson and other Founding Fathers on slavery, then, was profoundly ambivalent. On the one hand they were restrained by their overriding interest in creating the Union, by their concern for property rights, and by their visions of race war and miscegenation. On the other hand they embraced a revolutionary ideology that made emancipation inescapable. The question is, How was this theoretical ambivalence resolved in practical action? The answer, not surprisingly, is also ambivalent. Whenever dangers to Union, property, or racial order seemed to them acute the Founding Fathers did little. In the short run, especially in those Deep Southern states where the going was stickiest, they did almost nothing. But whenever abolition dangers seemed to them manageable Jefferson and his contemporaries moved effectively, circumscribing and crippling the institution and thereby gutting, its long-range capacity to endure. The revisionist view of the Founding Fathers is at its best in emphasizing slavery's short-run strength in Jefferson's South. For example, after the Constitution was ratified slavery showed its strength by expanding over the West. “The years of slavery's supposed decline," Robert S. McColley points out.”were in fact the years of its greatest expansion. In the age of Jefferson black bondage spread across Kentucky and engulfed Alabama and Mississippi. Furthermore, Jefferson as president acquired slave Louisiana, and Jefferson as elder statesman gave his blessings to the resulting diffusion of the system. Slavery showed its strength not only in Jefferson’s Virginia legislature, the Philadelphia's Constitutional Convention, and Louisiana's black deltas but also at Monticello itself. By freeing their slaves George Washington and John Randolph lived up to Revolutionary ideals. These men, however, were exceptions. Thomas Jefferson, who freed nine while blithely piling up debts that precluded freeing the rest, was the rule. The plantation life style, with its elegant manner and extravagant tastes, lessened the chance of reducing debts and allowing quick manumission on a massive scale. That life style, in Virginia and throughout the South, was as integral a part of slavery as was South Carolina's hunger for Africans and the Southwest's commitment to cotton. The master of Monticello, finally, revealed the towering practical strength of slavery in the notorious case of Sally Hemings, his mulatto house servant. Those who enjoy guessing whether Jefferson sired Sally's many offspring can safely be left to their own speculations. The evidence is wildly circumstantial and the issue of dubious importance. The old view, then, that slavery was dying in Jefferson's South cannot withstand the revisionist onslaught. The system was strong and, in places, growing stronger; and the combination of economic interest, concern for the Union, life style, and race prejudice made emancipationists rare in Virginia and almost nonexistent in South Carolina. Jefferson, no immediate emancipationist, refused as president to endorse an antislavery poem that had been sent to him for his approval. He could not, he said, “interpose with decisive effect” to produce emancipation. To interpose at all was to toss away other reforms. Here as always, Jefferson reveals himself as the pragmatic statesman, practicing government as the art of the possible. An idealist might fault him for refusing to commit political suicide by practicing utopian politics. But all the evidence shows that as a practical politician Jefferson accurately gauged impassable obstacles. The point is crucial: long before Garrison, when Jefferson ruled, peaceful abolition was not possible. What could be done? What Jefferson and his contemporaries did was to attack slavery where it was weakest, thereby driving the institution south and reducing its capacity to survive. In a variety of ways the Founding Fathers took positive steps that demonstrated their antislavery instincts and that, taken together, drastically reduced the slavocracy's potential area, population, and capacity to endure. The first key reform took place in the North. When the American Revolution began slavery was a national institution, thriving both north and south of the Mason-Dixon line. Slaves comprised 14 per cent of the New York population, with other figures ranging from 8 per cent in New jersey to 6 per cent in Rhode Island and 3 per cent in Connecticut and Pennsylvania. In these states. unlike Virginia, percentages of slaves were low enough to permit an unconvulsive variety of reform. Still, prior to 1776. abolitionists such as John Woolman found the North barren soil for antislavery ideas. As John Jay recalled, “the great majority of Northerners accepted slavery as a matter of course, and very few among them even doubted the propriety and rectitude of it." The movement of 1776 changed all this. The humanitarian zeal of the Revolutionary era, together with nonslaveholder hatred of slave competition and universal acknowledgment that the economy did not need slavery, doomed Northern slavery to extinction. In some states the doom was long delayed as Northern slaveholders fought to keep their bondsmen. Slavery was not altogether ended in New York until 1827 and in New jersey until well into the 1840s. By 1830, however, less than one per cent of the 125,000 Northern blacks were slaves. Bondage had been made a peculiar institution, retained alone in the Southern states. No less important than abolition in old Northern states was the long and bitter fight to keep bondage from expanding. In the famed Northwest Ordinance of 1787, for example, Congress decreed slavery illegal immediately in the upper Western territories. The new law left bondage free to invade the Southwest. But without the Northwest Ordinance slavery might have crept into Illinois and Indiana as well, for even with it bondage found much support in the Midwest. More important than preventing the spread of slavery into the North West Ordinance was the abolition of the African trade. This accomplishment, too often dismissed as a non-accomplishment, shows more clearly than anything else the impact on anti-slavery of the Revolutionary generation. Furthermore, nowhere else does one see so clearly that Thomas Jefferson helped cripple the Southern slave establishment. The drive to abolish the African slave trade began with the drafting of the Declaration of Independence. Jefferson, with the concurrence of Virginia and the upper South, sought to condemn King George for foisting Africans on his colonies. South Carolina and Georgia, less sure they had enough slaves, demanded the clause be killed. Jefferson acquiesced. Thus was prefigured, at the first moment of national history, the split between upper and lower South that less than a century later would contribute mightily to the disruption of the republic. At the Constitutional Convention, as we have seen, lower South delegates again postponed a national decision on slave importations. This time a compromise was secured, allowing but not requiring Congress to abolish the trade after twenty years. A year before the deadline Jefferson, now presiding at the White House, urged Congress to seize its opportunity. “I congratulate you, fellow citizens," he wrote in his annual message of December 2, 1806, " on the approach of the period when you may interpose Your authority constitutionally” to stop Americans "from all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country have long been eager to proscribe." Although the law could not take effect until January 1, 1808 noted Jefferson, the reform, if passed in 1807, 1807, could make certain that no extra African was dragged legally across the seas. In 1807 Congress enacted Jefferson's proposal. The new law, although one of the most important acts an American Congress ever passed, did not altogether end African importations. Americans illegally imported approximately one thousand blacks annually until 1860. This is, however, a tiny fraction of the number that could have been imported if the trade had been legal and considered legitimate. Brazil imported over a million and a half slaves from 1807 to 1860, and the Deep South's potential to absorb bondsmen was greater. South Carolina alone imported ten thousand blacks a year in the early nineteenth century, before the law of 1808 went into effect. Louisiana creole planters sought unsuccessfully to make Jefferson's administration grant them the same privilege. The desire of Virginia slaveholders to keep slave prices high no doubt helped feed the abolition of the trade, just as the desire of Illinois nonslaveholders to keep out blacks helped give Edward Coles his triumph. In both cases, however, the Revolutionary generation's conception of slavery as a moral disaster was of undeniable significance. The law that closed the trade and saved millions of Africans from servitude on new Southwestern plantations also aided slaves already on those plantations. It made slaves already in the South more expensive, and thus they received better treatment from plantation owners than slaves imported annually into Brazil or Hati. Perhaps the most important long-run impact of closing the trade was to help push bondage deeper into the South, thereby continuing the work the Fathers had begun with Northern abolition and the Northwest Ordinance. Now that African markets were closed the new Southwest had to procure its slaves from Northern slave states. By 1860 the resulting slave drain had significantly reduced percentage of slaves and commitments to slavery throughout the border area stretching from Delaware through Maryland and Kentucky into Missouri. Whereas in 1790 almost 20 per cent of American slaves lived in this most northern tier of border slave states, the figure was down to 10 per cent and falling by 1860. On the other hand, in 1790 the area that became the seven Deep South states had 20 per cent of American slaves and by 1860 the figure was up to 54 per cent and rising. During the cotton boom the shift was especially dramatic. From 1830 to 1860 the percentage of slaves in Delaware declined from 4 to 1 per cent; in Maryland from 23 to 13 per cent; in Kentucky from 24 to 19 percent; in Missouri from 18 to 10 percent. By both reducing the economic reliance on slavery and the psychic fear of blacks this great migration had political consequences. Antislavery politicians, echoing Hinton R. Helper’s appeals to white racism, garnered thousands of votes and several elections, especially in Missouri, during the 1850s. It was only a beginning, but it was similar to the early stages of the demise of slavery in New York. While the end of the slave trade indirectly drained slaves from the border South another Revolutionary legacy, the tradition of individual manumission, further weakened the institution in the Northern slave states. Although Jefferson did not live up to his dictum that antislavery planters should free their slaves many upper South masters followed precept rather than example in the antebellum years. The Virginia law of 1806, forcing freed slaves to leave the state in a year, did not halt the process as absolutely as some have supposed. Virginia laws passed in 1819 and 1837 allowed county courts to grant exceptions. The ensuing trickle of manumissions was a festering sore to the Virginia slave establishment. Meanwhile, in two border states, manumission sabotaged the institution
more insistently. Delaware. which had slaves and 4,000 free blacks in 1790, had 1, 800 slaves and 20,000 free blacks in 1860. Maryland. with 103,000 slaves and 8,000 free blacks in 1790, had 87,000 slaves and 84,000 free blacks in 1860. These two so-called slave states came close to being free Negro states on the eve of Lincoln's election. Indeed, the Maryland manumission rate compares favorably with those of Brazil and Cuba, countries that supposedly a monopoly on Western Hemispheric voluntary emancipation. The manumission tradition was slowly but relentlessly changing the character of states such as Maryland in large part because of a final Jeffersonian legacy: the belief that slavery was an evil that must some day be ended. Particularly In the upper South. this argument remained alive. It informed the works of so-called proslavery propagandists, and it gnawed at the consciences of thousands of slaveholders as they made up their wills. Jefferson's condemnation of slavery had thrown the South forever on the defensive, and all the efforts of the George Fitzhughs could never produce a unanimously proslavery society. In summary, then, the Revolutionary generation found slavery a national institution, with the slave trade open and Northern abolitionists almost unheard. When Jefferson and his contemporaries left the national stage they willed to posterity a crippled, restricted, peculiar institution. Attacking slavery' successfully where it was weakest they swept it out of the North and kept it away from the Northwest. They left the antebellum South unable to secure more slaves when immigrants rushed to the North. Most important of all, their law closing the slave trade and their tradition concerning individual manumissions constituted a doubly sharp weapon superbly calculated to continue pushing slavery south. By 1860 Delaware, Maryland, Missouri, and the area to become West Virginia all had fewer staves than New York possessed at the time of the Revolution, and Kentucky did not have many more. The goal of abolition had become almost as practicable in these border states as it had been in the North in 1776. As the Civil War began, slavery remained secure in only eleven of the fifteen slave states while black migration toward the tropics showed every capacity to continue eroding the institution in Virginia and driving slavery down to the Gulf. If the Founding Fathers had done none of this-if slavery had continued in the North and expanded into the Northwest: if millions of Africans had been imported to strengthen slavery in the Deep South, to consolidate it in New York and Illinois, to spread it to Kansas, and to keep it in the border South: if no free black population had developed in Delaware and Maryland, no apology for slavery had left Southerners on shaky moral grounds; if, in short, Jefferson and his contemporaries had lifted nary a finger would have been different. Because all of this was done slavery was more and more confined in the Deep South as the nineteenth century progressed.
“Slavery and the Constitutional Revolution:
The Debate over Federal Powers”
Daniel Robinson In the drama that produced the Constitution, Southern delegates were unmistakably prominent players. James Madison, the man whose leadership during the Convention earned him the title "Father of the Constitution," was a Southerner, a slaveowning Virginian who had been educated at the College of New Jersey, in Princeton, but who never in his long (eighty-five years) lifetime had a home other than his modest plantation in Orange County, in the Shenandoah Valley. John Rutledge, certainly a leading nationalist and chairman of the important Committee of Detail, which provided the first definition of legislative powers under the Constitution, was one of the wealthiest and best established planters at the Convention, and deliberately represented the most candid slave owners, the rice planters of South Carolina's coastal flats. George Washington, whose presence contributed essential authority to the deliberations and who had always been a force for national prestige and integration, was an exceedingly rich man, whose fortune arose largely from the labor of slaves in and around Mount Vernon, Virginia. In fact, of the fifteen delegates whom Clinton Rossiter has termed either "principals" or "influentials," seven were planters.
When the Convention turned to the definition of powers for the federal government, Southerners easily and naturally assumed a leading role, not just to be in a strategic position to defend "peculiar" interests, but also to perform as energetic architects of a governmental structure appropriate to a great nation.
The South's enthusiastic participation in the nationalizing thrust of 1787 carried one portentous qualification: the national government could be as powerful as the vision of a great national empire demanded, provided that it keep its hands off slavery. The major premise of the Southern position was a desire for vigorous national government, but the crucial minor premise was that slavery was strictly a local matter, forever beyond the reach of national authority. No conclusion-no constitutional clause, no public policy or pronouncement-that failed to take this minor premise fully into account could ever be acceptable to the South.
The South's insistence on this point sprang from several sources. One was a sense of complete dependence on slavery. This dependence was acknowledged by Southerners many times during the Convention's proceedings, though perhaps never more candidly than when General Pinckney flatly stated that "South Carolina and Georgia cannot do without slaves." "The blacks are the laborers, the peasants of the Southern states," added his cousin, and fellow planter, Charles. In the South Carolinians' view, the Southern economy was totally dependent on the productivity of black laborers.
Besides this, the determination of the Southerners to keep slavery out of the national political arena was reinforced by the feeling that people in the other sections were "prejudiced" against the institution, and might move in foolish ways to undermine it.'
Southerners were convinced that slavery was essential to the peace of their social environment, and they suspected that those who lived where blacks were sparse could never understand this fact. Their suspicion must have been fed by such remarks as the following, made by delegates from Connecticut: "the abolition of slavery seemed to be going on in the United States and . . . the good sense of the several states would probably by degrees complete it," and "As population increases, poor laborers will be so plenty [sic] as to render slaves useless. Slavery in time will not be a speck in our country." These statements are sometimes taken as evidence that the framers looked forward confidently to the time when slavery would dissolve from the American social scene, and are thus seen as partial justification for the failure of the Convention to come to grips with the institution directly in 1787. But in the face of the candor of the South Carolinians, a better interpretation of their significance would seem to be that they reinforced the determination of the Southerns not to allow people so ignorant of the true situation of the South to obtain power to legislate over slavery at all.
There were, of course, other Southern delegates, particularly the Virginians, whose commitment to slavery was less enthusiastic. George Mason, for one, was deeply troubled by it. Author of Virginia's seminal Bill of Rights, which began with the assertion that "all men are naturally equal," he called the attention of the delegates to the tendency of slavery to weaken the nation's defenses against foreign foes, to corrupt the manners of masters, to discourage the migration into the South of free white laborers, and to stimulate avarice in "some of our Eastern brethren" who participated in the slave trade. Madison, too, could lament that "the mere distinction of color [had been] made, in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man." Yet, despite these painful expressions of ambivalence toward slavery, there is no evidence that any Southerner departed from the determination to deprive the federal government of power to emancipate slaves. When Pierce Butler declared, "The security the Southern states want is that their Negroes may not be taken from them," he spoke for his entire section.
Despite this absolute intransigence on the subject of power to abolish or regulate slavery, there was one related aspect of the question on which the mind of the South was divided: the power to slave. On this point, the South Carolinians were as adamant as on any other affecting slavery. Charles Pinckney stated, "In every proposed extension of the powers of the Congress, [South Carolina] has expressly and watchfully excepted that of meddling with the importation of negroes." His colleague Rutledge warned, "If the Convention thinks that North Carolina, South Carolina, and Georgia will ever agree to the plan, unless their right to import slaves be untouched, the expectation is vain." Here, though, the South Carolinians were unable to make their position stick, partly because the Marylanders and Virginians, overstocked with slaves already, opposed them on this point, and partly because the slave trade was conceived as a national question, affecting "the national happiness," the capacity for defense, and the relative political power of the great sectional interests.
The Convention's earliest consideration of the question of powers for the new government came in response to the resolution of the Virginia Plan. From late May through the middle of July, the attention of the delegates had focused on the question of the weight of states and persons in the representational scheme. Once this thorny issue had been settled, the Convention was at last ready to turn to a systematic consideration of the question of governmental powers. To expedite consideration the Convention sent its various resolutions, including the amended Virginia Plan, to a Committee of Detail, so that a draft of the whole Constitution, including a list of enumerated powers, could be prepared.
A brief summary of the special concerns of the Southerners gives a better appreciation of the Southern triumph at this crucial stage in the Convention. The cornerstone of the Southern position was that slavery must be treated as a local institution beyond the power of Congress to regulate. On the slave trade, the mind of the South was divided. The Deep Southerners wanted it exempted altogether from federal regulation; men from the upper South wanted it stopped as soon as possible. In the area of foreign commerce generally, Southerners insisted that export taxes be prohibited to the federal government, and they sought to require special majorities for the enactment of regulations of maritime commerce. Because the Southern economy was based on the planting of staples, Southern statesmen were eager to prevent hostile majorities in Congress from inhibiting the export of tobacco, sugar, rice, and cotton, and from burdening the importation of the cheapest and best manufactured items.
Another issue of particular concern to the Southerners was the matter of foreign treaties. During the late stages of the Confederation, Southerners had feared that John Jay, the Secretary for Foreign Affairs, would negotiate a treaty with Spain that would yield American rights to navigate the Mississippi River past New Orleans in exchange for commercial privileges in trading with the Spanish Empire. Such a treaty would have been a boon to maritime interests in New England, but a crippling blow to settlers beyond the Appalachians, particularly those in the Ohio River Valley. Now, at the Constitutional Convention, Southerners were determined that special majorities again be required for the ratification of treaties, in order to protect themselves in the future.
The Committee of Detail was appointed on July 24. it included five of the most active and influential framers: John Rutledge (Chairman), Edmund Randolph, James Wilson, Nathaniel Gorham, and Oliver Ellsworth.
The Convention could not have produced at this critical point an intersectional committee in whose hands the interests of slave owners would have been safer. The two Southerners, Rutledge and Randolph, were already on record as demanding a government of enumerated powers, and would, of course, be vigilant in defense of the whole range of Southern interests. Ellsworth had not yet publicly shown his hand on the question of slavery, but was soon to urge the Convention not to "intermeddle," not even with the slave trade. Wilson had earlier seconded Sherman's motion to prohibit Congress from interfering with the "internal police" of the states. Gorham, a former President of the Congress of the Confederation and Chairman of the Convention's Committee of the Whole, was a man experienced in accommodating national policy to the demands of states and sections.
The man on the committee with the strongest and most settled views regarding the extent of federal power was Rutledge. He was not a timid man, and his hopes for a strong and "permanent" Constitution have already been noted. But he always insisted that the powers of government be carefully bounded, so that South Carolinians could participate energetically in national affairs without fear that they were strengthening a hand that could one day be turned against them at their weakest point-- slavery.
The report of the Committee of Detail was a monument to Southern craft and gall. It provided virtually everything that Southerners, especially Deep Southerners, wanted from the Convention: substantial (three-fifths) representation for their slaves, complete immunity for the slave trade and for slavery in general, prohibition of export taxes, and special majorities for navigation acts and treaties-all this in addition to a government strengthened for defense and for prompt payment of its debts. Northerners, of course, would share in the general improvement in American affairs, but they faced the prospect of diminishing power in national councils.
The Committee of Detail contained a majority of Northerners, but only Gorham among them seemed to understand what had happened or to object to it. Twice during the debate on the slave trade and navigation acts, he reminded the Convention that New England's main motive toward a stronger union was "commercial," that is, the hope that a united nation could make and enforce better commercial arrangements with foreign nations and among the states than any single state could by itself. He knew that even if a majority of the Northern delegates could be brought to accept the arrangements struck by Rutledge's committee, a Constitution that followed the same pattern would stand little chance of being ratified by representatives of the merchants of Boston and Portsmouth and New York, or the farmers of the Connecticut, Hudson, or Delaware valleys.
One scholar suggests that the delegates found this report "very different from what most of them had . . . expected." Certainly King and Morris were infuriated by the arrangements made to adjust the competing interests of North and South. King took his earliest opportunity to assail the report. Reacting to the vote affirming the federal ratio for representation, he stated that he had originally agreed to the inclusion of slaves in the hope that Southerners would then place full confidence in the federal government. The draft before them "put an end to all those hopes." The federal government, he said, had been given the task of defending against foreign invasion and against internal sedition. Slaves in the South increased both dangers, but slave owners were rewarded, and encouraged to increase their holdings through the slave trade, by an increment in representation. And now export taxes were not to be permitted.
If slaves are to be imported, shall not the exports produced by their labor supply a revenue, the better to enable the general government to 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 . . . .
There was no abolitionism in King's speech, no sympathy or regard for blacks-just a calculated defense of sectional interest. He demanded not emancipation, but export taxes, or else a limitation of the slave trade. But the Convention as a whole had no taste for an intersectional wrangle at this stage. Sherman gently suggested that, though the slave trade was "iniquitous," the clause on representation was no place to assault it, and Madison tried quickly to change the subject.
Morris, however, would not be silenced. Moving to limit representation to "free inhabitants," he admitted that he meant his motion as an assault on "domestic slavery." Throwing forbearance to the wind, he called slavery the "curse of heaven" on the Southern states, adding that "every step you take through the great regions of slaves presents a desert increasing, with the increasing proportion of these wretched beings." Referring to slaves as "his fellow creatures," he indicted Georgians and Carolinians for tearing them from their "dearest connections" in Africa and damning them to "the most cruel bondages," "in defiance of the most sacred laws of humanity." He went on to list the ways in which the Constitution as it then stood rewarded and encouraged slaveholders. "And what," he asked rhetorically, "is the proposed compensation to the Northern states for a sacrifice of every principle of right, of every impulse of humanity?" He concluded with a bold suggestion: "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."
This was a stirring speech, delivered by a man who was never delicate with the sensitivities of his Southern brethren. But as the sole expression of abolitionism at the Convention--which it was--it is surely a disappointment. Appart from the peroration, which seems almost whimsical in retrospect, and which died as a proposal with the sound of his voice, the speech points to no realistic, concrete steps that might be taken to eliminate slavery.
In fact, close inspection of the speech and its context in the debate suggests that his purpose in delivering it was to force Southern concessions on navigation acts. He seems-like Rufus King, who spoke before him-to have been genuinely shocked by the report of the Committee of Detail. Twice during the speech he concluded his rehearsal of provisions advantageous to the South by asking what compensations were to be made to the North. When his rage was spent, Sherman again uttered a comforting word, Wilson described Morris's motion as "premature," and the Convention buried it under an avalanche of "nays."
Next, the Committee of Detail took up the issue of the Slave Trade. The draft submitted by the Committee had included the following clauses as the cornerstone of the intersectional arrangement:
Section 4. No tax or duty shall be laid . . . on the migration or importation of such persons as the several states shall think proper to admit; nor shall such migration or importation be prohibited.
Section 5. No capitation tax shall be laid, unless in proportion to the census hereinbefore directed to be taken.
Section 6. No navigation act shall be laid, without the assent of two-thirds of the members present in each House.
The assault on these provisions was initiated on August 21 by Luther Martin, of Maryland, who objected to the immunity of the slave trade from taxation or prohibition, arguing that the federal ratio encouraged the increase of slavery and ought to be strongly counteracted by obstacles to the importation of new slaves from Africa. It was necessary to prevent the increase of slavery, he insisted, not only because slavery weakened the South, but Slave owners wanted this provision, because they feared that a burdensome head tax might be imposed on their slaves by a Congress vindictive toward slave owners or bent on encouraging manumissions. But also because it was "inconsistent with the principles of the Revolution."
These arguments met immediate attack. Both Northern and Southern delegates insisted on side-stepping this issue, and they offered three reasons for compromise on the Slave Trade. The first was that the summer was drawing to a close, the delegates were tired, and the nation was beginning to clamor for a look at their work. Introducing the debate on August 22, Sherman "urged on the Convention the necessity of dispatching its business." King and Morris must have recalled somewhat bitterly that Sherman had admonished them on August 8 for their "premature" assault on the Rutledge Committee report. Now they were told that it was too late.
The second argument was that slavery was dying of its own accord, and that it was therefore foolhardy to risk the failure of the Convention, and civil war, in an attempt to end it now. It was at this point in the debate that Sherman and Ellsworth predicted that slavery would soon disappear from America. Several Southerners, too, uttered comforting words on this subject, but the assurances offered by the South Carolinians and Georgians differed slightly, but significantly, from those offered by New Englanders. Whereas the latter spoke of the "abolition of slavery," the hope held out by Charles Pinckney and Abraham Baldwin was specifically confined to the termination of the importation of slaves. And against both of these lullabies, the elder Pinckney candidly declared "that he did not think South Carolina would stop her importation of slaves in any short time, but only stop them occasionally, as she now does." Nevertheless, the illusion that slavery, the slave trade, or both, was dying was apparently a key part of the rationalization of some Northerners for submitting to the demands of the Deep Southerners. The ultimate appeal of the defenders of the Rutledge Committee report was that its clause on the slave trade was a necessary compromise.
The committee assigned to fashion the new intersection bargain was chaired by Governor William Livingston, of New Jersey, and was dominated by men who gave promise of being able to see the problem of the slave trade in a soundly commercial framework. Its report represented something of a recovery for the Northern commercial interests from the debacle they had suffered at the hands of the Committee of Detail. Instead of exempting the slave trade from taxes entirely, it allowed an impost "at a rate not exceeding the average of the duties laid on imports.” Instead of making the trade perpetually immune from prohibition, it provided only that the slave trade "shall not be prohibited by the legislature Prior to the year 1800." It left Section 5 intact, thus continuing the prohibition against a selective capitation tax. But instead of retaining the two-thirds majority for navigation acts, it eliminated Section 6 entirely, which meant that such acts could be passed, like other commercial regulations, by simple majorities in both houses of Congress.
When, on August 25, this report was taken up, it quickly became apparent that an intersectional accommodation had been reached between the delegates from New England and those from the Deep South. General Pinckney, seconded by Gorham, moved to extend to 1808 the slave trade's immunity from prohibition. Despite a wail of anguish from Madison, the motion was carried by the three nothernmost and the three southernmost states. By August 28, much of the work on the constitution was finished, but two of the miscellaneous clauses toward the end of the Constitution came up for review, providing an occasion for the South Carolinians to seek further securities for their peculiar property. First, General Pinckney expressed dissatisfaction with the clause that guaranteed that "the citizens of each state shall be entitled to all privileges and immunities of the citizens in the several states." Madison's notes are scanty at this point, but the General seems to have wanted a specific guarantee that slaveholders could take their property into "free" territory without jeopardizing their claim to ownership. The vote affirmed the "privileges and immunities" clause without amendment, with South Carolina alone in dissent and Georgia divided.
Second, Butler and Pinckney moved "to require fugitive slaves and servants to be delivered up like criminals.` The concept of the "fugitive slave" was introduced into American law during the summer of 1787, first in the Northwest Ordinance, then at the Federal Convention. Its significance would be to give a nationwide sanction to the right to property in slaves. Thus slavery in one state could not be undermined by conditions or enactments in any other state. If the state of which the owner was a citizen recognized it as his right to own a slave, there would now be no place in the United States where the slave could escape. The federal government would guarantee the satisfaction of the master's claim. The objections raised against Butler's motion were significant. Wilson complained only that the state obliged to return the slave would incur "public expense"-indicating that states preferred to commit the task of recovery to slave owners anxious for the return or replacement of their chattels, rather than retain for themselves the task of protecting their own citizens by distinguishing between fugitive slaves and free Negro residents. Sherman "saw no more propriety in the public seizing and surrendering a slave or servant than a horse." His usual Yankee prudence failed him at this point. It was the free Negro, more than the slave, who would be jeopardized by a fugitive-slave clause. And the difference between free Negroes and horses was that the owners of horses in the North would counteract horse thieves from outside the state, whereas free Negroes might not have anyone interested in preventing them from being dragged into slavery.
Butler must have been delighted, even if he was not surprised, at this reaction. Withdrawing his motion, he promised to submit another version later, free of these objections. The following day he did so, and his proposal was accepted, without debate or dissent, in the following words:
If any person bound to service or labor in any of the United States shall escape into another state, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the state to which they escape, but shall be delivered up to the person justly claiming their services or labor.
It may be harsh to belabor Northern delegates for not foreseeing the abuses to which fugitive-slave acts were later put. Nevertheless, the casual way in which this clause-so full of peril to Negroes, both bond and free-was adopted tells volumes about the plight of black men in a nation governed by whites. The United States was a miserable place for Negroes, in part because, while Southerners were zealous to keep Negroes enslaved, Northerners cared only superficially, if at all, about the rights, welfare, and happiness of free Negroed. The careless language of the fugitive-slave clause reveals better-than anything else in the Constitution that the fundamental problem for blacks in the union was that the government was in no way answerable to them, and white Americans in general did not hold them in just regard.
One cannot escape the feeling that a stronger, more deliberate stand against the slave trade or against the vagueness of the fugitive-slave clause, for example, might have called the bluff of the South Carolinians. During the main debates on the slave trade of August 21 and 22, the remarkable fact is that it was the delegates from Connecticut, Ellsworth and Sherman, who insisted most emphatically that the country would "lose two states" unless the report of the Committee of Detail was accepted as the forces favorable to slavery wanted it.
This shows the unequal tension that produced the Constitution's provisions on slavery: the clarity and determination of those with a direct interest versus the relative ignorance and unconcern of those without this direct interest. The reason the Convention was able to move against the slave trade was that there were many delegates who perceived that it threatened their interests: Virginians, who were already overstocked with slaves and knew from direct experience the dangers of a surplus; and Northerners, who could perceive the relationship between the slave trade and their relative weight in the government, via the federal ratio. With regard to other issues affecting slavery, there was no countervailence of interests among Southerners present and little sense of direct stake among the Northerners, and thus, no other move against slavery was taken, or even seriously contemplated.
On the question of the representation of states in Congress, many Northerners had shown themselves willing to take the Convention to the edge of collapse. One cannot help wondering what concessions could have been wrung from the slaveholders if a similar will had been shown to limit the power of slavery. Could slavery have been confined to "states now existing"? Could the rights of free Negroes have been defined and secured? Could the rights of owners who wished to emancipate their chattels have been established against state laws to the contrary? It is impossible to say, because the Convention never really broached these subjects. The most perceptive delegates acknowledged the power of slavery to cleave the union in two, but the Convention as a whole failed to regard this fact as a challenge to their moral and political imagination.
Most of the framers were either unperturbed about slavery or else completely resigned to its presence in America. None saw slavery as a sufficient moral or political evil to justify even a careful analysis of its effects, much less a stand against its continued existence. These men--who had shown themselves capable of the most imaginative political thinking and of the boldest political action on other issues-were willing to acquiesce in slavery for two reasons: because the suffering of Negroes did not sufficiently quicken their sympathies, and because they were unable to imagine a viable alternative. Because of these two defects of imagination, they were able to persuade themselves that the political realities of 1787 prevented them, not only from abolishing slavery outright, but from considering it carefully. Nevertheless, the presence of these unassimilated black neighbors would dog the pursuit of "a more perfect union" until the nation overcame its temptation to proceed as if the injustice of slavery could safely be ignored.