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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.

Image of Charles Cotesworth Pinckney By James Earl (d. 1796) [Public domain], via Wikimedia Commons

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.