North-South Issues: A Final Note on the Three-Fifths Compromise

One final comment should be made about the Three-Fifths Compromise.  I discussed in the previous post how it came about.  The original plan under the Articles of Confederation was for each state to pay a tax quota in proportion to its assessed land values.  When this proved to be impractical, the rule was changed to a tax quota in proportion to population.  That led to a dispute as to whether slaves counted.  Naturally, southern states said they should not and northern states said they should.  As a compromise, the states agreed to count three-fifths of the slaves in each state's tax quota.  The Constitutional Convention then adopted this rule for representation in the House, this time with southern states depending the inclusion of (three-fifths of) slaves, and northern states demanding that they be excluded altogether.  That is the true story of how the three-fifths compromise came about -- including three-fifths of all slaves in representation was the adoption of an earlier compromise to include three-fifths of all slaves in taxation.  The number is perfectly arbitrary -- it just happens to be the number chosen.

This led to two misconceptions about the compromise.  One is that it is based on slaves' dual nature and people and property, or that it treated a slave as three-fifths of a person, and the other that it was intended as a penalty on southern states for holding slaves.  Both are false.

The idea of three-fifths representation as a penalty on the South was not suggested at all at the time, and appears to have originated with abolitionists, especially Frederick Douglass, intent on interpreting the Constitution as an anti-slavery document.  Since southerners had already gotten an exemption from taxes on two-fifths of their slaves, no one suggested including all of them in representation.  The only question was whether some should be included.

As for the idea that this meant a slave was three-fifths of a person, or that it reflected the dual nature of slaves as persons and property, this is also false, but understandable because the misconception originates with Madison and Federalist Paper No. 54. The Federalist Papers were addressed to a New York audience, so Madison was in the awkward position of being a southerner defending slave representation to a northern audience. How does one defend the indefensible? Concealing his southern origins, Madison proposed that some hypothetical southerner might make the following argument:

"We subscribe to the doctrine,'' might one of our Southern brethren observe, "that representation relates more immediately to persons, and taxation more immediately to property, and we join in the application of this distinction to the case of our slaves. But we must deny the fact, that slaves are considered merely as property, and in no respect whatever as persons. The true state of the case is, that they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property.

In being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property. In being protected, on the other hand, in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society, not as a part of the irrational creation; as a moral person, not as a mere article of property.

The federal Constitution, therefore, decides with great propriety on the case of our slaves, when it views them in the mixed character of persons and of property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied, that these are the proper criterion; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted, that if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation with the other inhabitants.

This is not a good argument.  It is not one that will convince anyone today, and it is unlikely that it convinced any of Madison's readers either.  Madison himself admitted that it was "a little strained in some points."  More importantly, it was not an argument that any Southerner made with a straight face.  It may best be seen as a far-fetched hypothetical for how one might possibly defend the indefensible.  However, given the prestige of the Federalist Papers people have sometimes treated this as a serious argument and claimed that the Three-Fifths Compromise treated a slave as 60% of a person, or as somewhere between a person and property.

North-South Issue: A Chronology of Debate

Of the five north-south issues mentioned before, the issue of returning fugitive slaves was not controversial.  Pierce Butler of South Carolina proposed that a fugitive slave be returned on the same terms as a criminal.  James Wilson and Roger Sherman made rather tepid protests, and the issue was dropped.  The next day, the issue was again proposed and a requirement to return a fugitive slave, euphemistically referred to as a “person bound to service or labor by the laws of a state,” was adopted without opposition. 

            The other four issues were more controversial.  The issue of slave representation was the first to be addressed.  I learned in school that the Northern states wanted to include slaves in taxation but not representation and the Southern states wanted to include slaves in represenation but not taxation.  This is an oversimplification.  When the Articles of Confederation were originally drawn up, the central government had no power to collect taxes, but would collect them in quotas from the states.  Originally, each state’s quota was to be based on the value of land in the state.  When land values proved too vague to be useable, each state’s quota was made proportional to its population.  This raised the question of whether it would be proportional to a states’ total population or only its free population.  Naturally, Southern states wanted to include only free population and Northern states wanted to include total population.  As a compromise, it was agreed to include free population and three-fifths of all slaves, euphemistically using the phrase:

 The whole number of white and other free Citizens and inhabitants of every age, sex and condition including those bound to servitude for a term of years and three-fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes. 

            During the Constitutional Convention, controversy arose over how representation would be apportioned in the lower house.  Some delegates proposed free population; some proposed tax revenue and some, especially from South Carolina, where slaves made up an absolute majority of the population, proposed wealth.  As a compromise, Charles Pinckney and James Wilson proposed the same formula used for tax revenue under the Articles.  This time it was the Deep South that wanted all slaves to be counted and the North that wanted them entirely excluded, and each side accused the other of hypocrisy for reversing its position from what it had been when the issue was taxation.  Gouverneur Morris then proposed that they reduce controversy by saying that direct taxation would be proportional to representation, and James Wilson suggested that they could reduce resistance further by saying that representation would be proportional to taxation .  This would make it appear that states were being taxed by the 3/5 formula and represented according to the taxes they paid.  Seen that way, the three-fifths rule appears almost reasonable except for one thing.  The new government was not intended to be financed either by tax quotas raised from states or from “direct” taxes, i.e., a fixed tax per head on all free individuals and 3/5 of all slaves.  It would be financed primarily by import taxes and secondarily by a variety of sales taxes.  “Direct” taxes would make up only a tiny fraction of its total revenue, and often not even that.  The linking of taxation and representation was pure window dressing that both Morris and Wilson later criticized.

            Up August 6, 1787, the Constitution was merely a series of resolutions which gave the central government all powers for which the individual states are not competent.  On August 6, 1787 a committee got together and prepared an actual first draft of the Constitution, which identified the specific powers of the general government and forbade certain powers to the states.  It also contained three important concessions to the South:

(1)               Although Congress could regulate foreign trade, it could not stop the “migration or importation of such persons as the states see fit to admit,” i.e., slaves, or tax their import;

(2)               Exports could not be taxed;

(3)               No navigation act could be passed without a two-thirds majority.

A navigation act is a law controlling shipping.  What Northern states hoped for and Southern states feared was that the federal government would require the South to export its produce on American, i.e. Northern, ships.  England, previously the colonies’ main trading partner, had closed all of the British Empire to American shipping, which had been a severe blow to the trade-dependent New England states.  New Englanders wanted to give Congress the authority to regulate foreign trade in order to retaliate and force open British ports, and to require Southerners to send their exports on American ships as a substitute field of trade.  Southerners feared that Northern merchants would strangle them with high prices and monopolies.  Outnumbered in both houses, they wanted to require a two-thirds vote in order to have a veto on such laws.  Since only South Carolina and Georgia really wanted to keep importing slaves, requiring a two-thirds or even three-quarters vote would not protect slave importation; only an absolute ban would suffice.  The South also feared an export tax, not only because it produced most of the U.S. exports, but because an export tax could easily be made discriminatory.  Virginia had another reason to oppose a federal export tax – a tax on tobacco exports was one of its major sources of revenue, and most people assumed that an export tax would be exercised either by the federal government or the states.

            Debate on these issues became hotter than on any issue other than representation. The New England states threatened to secede unless Congress was given complete power to regulate foreign trade by a simple majority.  The New England states were strong, their delegates boasted, and had their own ships to defend themselves.  They could stand on their own.  The Southern states, without ships, would were vulnerable to attack and should therefore support a navigation act that would encourage New England shipbuilding for national defense. South Carolina and Georgia, on the other hand, argued that they could not do without slaves and threatened to secede if their slave imports were cut off.  In the end, these issues were sent to a committee that worked out a sectional compromise.  Slave importation would be protected up to 1808, and slaves could be taxed at a limited rate.  Neither the federal government nor the states could tax exports.  Navigation acts and regulations of foreign trade would require only a simple majority.  In effect, New England and the Deep South shook hands on these issues behind Virginia’s back.  The votes on these issues are revealing.  On the importation of slaves, all New England states joined with the Deep South to approve it, with the Upper South and the Quaker states opposing.  On the regulation of foreign trade, every Northern state supported regulation by a simple majority.  Of the Southern states, only South Carolina broke ranks.  A sectional compromise had been reached, and the Virginians fumed in vain.

            Those four issues, slave representation, slave importation, export taxes and navigation acts, were the four great sectional issues that divided the Convention.  On most other issues, sectional differences were most significant for their absence, but there were a few other issues that showed sectional pattern. 

            One difference, noted before, is that the southern states were the most nationalistic.  Virginia and the states southward were the ones that consistently favored the Virginia Plan over the New Jersey Plan and opposed equality in the Senate.

            Another was that the delegates representing the commercial elite, i.e., almost all New Englanders and Gouverneur Morris, speaking for the merchants of New York and Philadelphia, opposed admitting Western states on an equal basis or setting a firm rule for reapportioning representation as population shifted.  Virginians were the foremost advocates of the West, with the South Carolina skeptical about the West, but not as hostile as New England.  Why? 

            One of the most basic reasons was the one discussed in the last paper, that population in the South was growing faster than in the North and Southerners therefore believed they would benefit from future reapportionments and New England expected to lose.  But that does not explain their attitudes toward the West.  Quite simply, members of the commercial elite feared the West.  They saw themselves already a minority, commercial, seafaring and outward looking, outnumbered by a majority that was agricultural, land-based and inward looking.  The more the country expanded, the more agricultural, land-based and inward looking it would be and the more the commercial interest would be outnumbered.  Virginians had the opposite perspective, agricultural, land-based and distrustful of merchants.  Furthermore, Virginia included the present state of Kentucky and had potentially immense land claims west of the Appalachians.  Although Virginia was already planning to give up these enormous land claims, an extraordinary act of statesmanship, even the potential claims led the Virginias to be particularly inward-looking and see the West as their natural agricultural allies against commercial New England.  Strictly speaking, this did not make a great deal of sense.  Throughout all the larger states there was strong conflict between western farmers and eastern elites, and this conflict was just as strong in the South, where the eastern elites consisted of planters as in the North, where the eastern elites were merchants.  This may, perhaps, explain why South Carolina was not as strong a champion of the West as Virginia; conflict between eastern planters and western farmers in South Carolina was particularly strong.  Besides, South Carolina’s rice plantations were obviously restricted to coastal swamps; Virginia’s tobacco plantations had better chances to expand.*

            One final difference was that New Englanders were most inclined to favor very short terms for office holders, especially one-year terms for the House of Representatives.  Very short terms were an old New England tradition, going back to colonial times.  Keeping in mind that Massachusetts and Connecticut were the only New England states present at the time, consider the delegates who spoke up for a one-year term in the House – Elbridge Gerry of Massachusetts, Caleb Strong of Massachusetts, Oliver Ellsworth and Roger Sherman of Connecticut – and James Wilson of Pennsylvania.  A proposal for a three-year term in the House was opposed by only three states, Massachusetts, Connecticut – and South Carolina.  Massachusetts and Connecticut were holding out for a one-year term.  South Carolina, whose officials all served two-year terms, wanted a two year term, which would be more convenient for their political cycle.**

            On other issues, sectional differences were most noticeable for their absence.  

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*All of this, incidentally, was the beginning of a trend.  Generally speaking, the South was the most expansionist part of the United States and New England the least.  Many New Englanders even opposed the Louisiana Purchase, fearing that the vast increase in territory would mean more agricultural, land-based, inward looking people increasingly overwhelming the commercial interest.  They also bitterly opposed the War of 1812, even to the point of contemplating secession, because the war included an attempt to conquer Canada.  Following the War of 1812, Southerners wanted the government to give away Western land for free, which would have promoted westward expansion, while New Englanders favored restricted sales, which would have discouraged expansion.  The pattern held even during the Mexican-American War, with the South favoring the war and New England opposing conquest of the Southwest, even though it was clear by that time that the real difference was not between agricultural and commercial states, but between slave and free states and that the land in question was unlikely to be amenable to slavery.  Throughout the 1850’s Southerners cast a covetous eye on Cuba and Central America and new places to expand.  When the South ultimately seceded in 1860, it was for the same reason that New England contemplated secession during the War of 1812, a fear that they were a permanent and ever-shrinking minority being overwhelmed by an every growing majority.  But Southerners reacted to a permanent minority status by desperately seeking to expand; New Englanders by desperately seeking to block expansion.  Both regions were ultimately acting against their own interests; most of the land the United States acquired (or tried to acquire in the War of 1812) was unsuited for slavery.  If New Englanders had managed to stop all expansion, the balance between slave and free states would have been easier to maintain than it ultimately became.

**David Hackett Fischer used this division to show strong sectional differences at the Constitutional Convention.  I do not agree with him in this case.  This was, indeed, a section difference, but it was unusual in that regard.

The Constitution and Slavery

The Constitution as originally was too squeamish to actually call a slave a slave. It used a variety of euphemisms like contrasting "free persons" with "other persons" or a "person held to service or labor" or even "such persons" as the states wished to import.  Without actually using the "S" word, the Constitution upholds slavery in three places:

1. The three-fifths compromise including all free persons and three-fifths of all "other persons" (i.e., slaves);
2. The ban on any Congressional interference in slave trade until 1808;
3. The Fugitive Slave Clause, guaranteeing the return of any "person held to service or labor" escaping to another state.

At least, this is what I had long believed.  In law school, our Constitutional Law professors claimed that actually the Constitution as originally written upheld slavery not three, but six times!  Conceding these three, what are the other three?  Looking it over, I think I have found two.

 Article I, Section 9, Clause 4: "No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken."  Although the Constitution is normally written in remarkably clear and simple language, accessible to the layperson, and with very little legalese, this particular clause is a head-scratcher.  This is partly because it uses some obsolete terms and partly because it was deliberately written to obfuscate.  A "capitation" is a head tax.*  It was not usually charged on each individual "head," but on each adult male head of household.  A "direct" tax is a tax on individuals or property, as opposed to a "commercial" tax, which is a tax on a commercial transaction.  And "property" in these case would mean not just land, but all forms of wealth.  This appears to be a ban on a federal property tax, allowing Congress only commercial and head taxes.  But what about the census referred to?  That census is in Article I, Section 2, the section apportioning the House of Representatives, including the three-fifths compromise. A census is to be taken every ten years to establish population for purposes of representation and direct taxation.  This section says that "direct taxes" must be based on all free persons and three-fifths of all slaves, i.e., it forbids a burdensome property tax on slaves.

Article V.  This sets the amendment process.  Most of the Constitution is subject to amendment, but Article V makes a few exceptions.  The only one that is operative today is that no state may be deprived of equal representation in the Senate without its consent.  But it also provides that, "[N]o amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article."  This, too, is a bit of legalese designed to obfuscate the meaning.  Looking back at Article I, Section 9, one will see that the first clause is the one that forbids Congress from interfering with the slave trade until 1808, and Clause 4 is the word ticket quoted above that forbids any burdensome property tax on slaves.  This section, along with the protection of slave trade, became obsolete in 1808.

So, three parts of the Constitution directly uphold slavery and two uphold it indirectly by reinforcing other sections.  What the sixth protection of slavery is, I have not been able to determine.

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*It is the same word as "per capita" and comes from Latin, caput, or head.