Dishonorable to the Nation": The Committee of Detail and the Slave Trade

     

Nothing has brought more discredit on the Constitution or its framers than its treatment of slavery. Abolitionist William Lloyd Garrison spoke for all Americans in denouncing “the guilty compromise that was made at the formation of the Constitution.” Garrison condemned the Constitution's clauses related to slavery as "concessions that were made to the South," denouncing the Constitution as a "bargain" between the sections, "made intelligently, deliberately, and with great unanimity," though it was "at war with the principles of morality," and "dishonorable to the nation." As justified as Garrison's moral critique may be, his claim understates the chaotic nature of the Convention which produced a Constitution nobody could have intended. 

Its debate began with the Virginia Plan which said nothing about slavery, other than that “the rights of suffrage in the National Legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants.” The plan proposed a government grounded on the principle of proportional representation, advocated forcefully by James Madison. Others followed Connecticut's Roger Sherman's effort to retain the federal principle. The South Carolina delegation argued the principle of wealth (including wealth in the form of slaves) should be considered in allocating representation. The “ingenious theorist” planning a government “in his closet or his imagination” would not have attempted to combine these incompatible principles. Yet the Philadelphia Convention did. In a 5-4-1 vote, the Convention adopted the Connecticut Compromise establishing an upper house that granted equal representation to states and a lower house in which representation was based on population, allowing the Southern states to count three-fifths of their enslaved populations. 

Having settled on a structure after six grueling weeks, weary delegates established a committee to fill in the details and draft a constitution. Though they did not know it at the time, this Committee of Detail would become the chief author of our nation's dishonor. Representatives were selected from the three most populous states in terms of (white) population: Virginia, Pennsylvania, and Massachusetts. Virginia was represented by Edmund Randolph rather than by Madison; perhaps this acknowledged Randolph’s status as the sitting governor of the state, or perhaps it reflected aversion to perceptions of Madison’s inflexibility on the point of representation. James Wilson represented Pennsylvania and Nathaniel Gorham represented Massachusetts. Connecticut was chosen, likely in acknowledgement of its role in the Convention’s “great compromise.” It was represented by Oliver Ellsworth. Finally, in deference (or complaisance) to the southern states, South Carolina was chosen, represented by the formidable John Rutledge. 

The Committee initiated a proposal, never before uttered in the Convention, that “No tax or duty shall be laid by the Legislature… 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.” The Convention was thrown into convulsions. Rufus King of Massachusetts sought to revoke the three-fifths clause. Gouverneur Morris denounced slavery as "a nefarious institution... the curse of Heaven on the States where it prevailed.” Luther Martin held “it was inconsistent with the principles of the Revolution, and dishonorable to the American character, to have such a feature in the Constitution.” 

Representatives of the Committee’s Deep South-New England alliance defended their proposal. Rutledge barked, “Religion and humanity had nothing to do with this question. Interest alone is the governing principle with nations.” He renewed the South’s regular resort to brinksmanship. “The true question at present is, whether the Southern States shall or shall not be parties to the Union.” Ellsworth agreed. “The morality or wisdom of slavery are considerations belonging to the States themselves. What enriches a part enriches the whole.”

George Mason exploded. Slavery weakened every nation where it had been tried.” Taking on the mantle of an Old Testament prophet he proclaimed, “Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country.” Calling out Ellsworth, Mason “lamented that some of our Eastern brethren had, from a lust of gain, embarked in this nefarious traffic.” Ellsworth snarled, “as he had never owned a slave, could not judge of the effects of slavery on character.” Speaking to Mason's concern about slave revolts, Ellsworth retorted, "that will become a motive to kind treatment of the slaves.” In effect, Mason had accused Ellsworth of being a profiteer from the slave trade; Ellsworth had accused Mason of being a petty tyrant and cruel master. 

The Convention refused to accept the Committee of Detail’s proposal as it stood. A separate committee returned with the proposal that Congress be given the power to banish the slave trade in 1800. When General Pinckney proposed this be extended to 1808 – seconded by Gorham who had served on the Committee of Detail – a disgusted Madison concurred with Martin, “Twenty years 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.” 

Mason refused to sign the Constitution. He circulated a list of objections. Among them, he observed, “The general Legislature is restrained from prohibiting the further Importation of Slaves for twenty odd Years.” Ellsworth, infuriated, resumed his vicious personal attacks on Mason. Writing as “A Landholder,” Ellsworth chastised Mason, alleging that Mason had revealed from the Convention “truths that would otherwise in all probability have remained unknown to us all.” As "A Landholder," Ellsworth decided to reveal some truths of his own, explaining, “It may be asked how I came by my information respecting Colonel Mason’s conduct in Convention, as the doors were shut? To this I answer, no delegate of the late Convention will contradict my assertions, as I have repeatedly heard them made by others in presence of several of them, who could not deny their truth.”

Spilling his secret, Ellsworth insinuated that Mason had made a proposal regarding commercial regulation that was “unequal and partial in the extreme to the Southern States.” He claimed that it demonstrated Mason as “selfish” and judged that the “loss of this question determined Mr. Mason against the signing the doings of the Convention.” All of Mason's other rationalizations against ratification were “ex post facto.” Ellsworth once again attacked Mason’s character. “Mr. Mason has himself about three hundred slaves and lives in Virginia where it is found by prudent management they can breed and raise slaves faster than they want them for their own use, and could supply the deficiency in Georgia and South Carolina.” Dismissing Mason's critique of the slave trade, Ellsworth concluded, disingenuously, that the union was stuck with it. If Southern states continued to allow the importation of slaves during this interim period, “shall we refuse to confederate with them? Their consciences are their own, though their wealth and strength are blended with ours.” 

Ellsworth's public attack on Mason and his public revelations from behind the Convention's veil of secrecy threatened to throw the curtains wide open. But this was not the only such threat. Madison feared that Elbridge Gerry -- who had refused to sign the Constitution -- might take the occasion of being excluded from the Massachusetts ratifying convention “to insinuate that he could say much more, had he not been deprived of a hearing….” Luther Martin had left the Convention before its end but stayed long enough that he was able to detail the Convention’s ugly debate about the slave trade in his late November testimony to the Maryland legislature. Madison learned of Martin’s revelations no later than the end of January. The Convention’s veil of secrecy had been opened, and rumors about its most dishonorable moment were beginning to circulate.

As the Convention's delegates fed doubts about its credibility, another member of the Committee of Detail, Edmund Randolph, publicly proposed the calling of a second convention. Though Randolph had refused to sign the Constitution, he wrote to Madison with concern that " the current sets violently against the new constitution." Madison responded with uncharacteristic impatience. All but calling Randolph a dupe, Madison chided him about those “who have carried on their opposition under the respectability of your name.” Indeed, Madison hinted that Randolph’s clumsiness — undoubtedly going back to his role on the Committee of Detail — was at least partly responsible for the serious opposition to the Constitution that had arisen throughout the union.

Madison conceded Randolph's concern for popular participation in the drafting and ratification of the Constitution but countered, “there are subjects to which the capacities of the bulk of mankind are unequal, and on which they must and will be governed by those with whom they happen to have acquaintance and confidence. The proposed Constitution is of this description.” Exasperated by the struggles the union had experienced under the Articles and by the travails of the Convention, and undoubtedly disillusioned by the residual impact of the Convention’s bitter debates upon ratification, Madison was desperate. “[I]f a Government be ever adopted in America, it must result from a fortunate coincidence of leading opinions, and a general confidence of the people in those who may recommend it." He concluded, "The very attempt at a second Convention strikes at the confidence in the first; and the existence of a second by opposing influence to influence, would in a manner destroy an effectual confidence in either.” If the Convention had produced a document that nobody could have intended, Madison was determined that a moment like this not be repeated.

The day after his letter to Randolph, Madison published the first essay in the second phase of his contributions to The Federalist. To this point, Publius had run thirty-six essays. Just five of those were Madison's, and each was derivative of Madison's research and concerns from before the Convention. Though Madison's tenth Federalist essay is now famous, it made little impact on the ratification debate, and was largely forgotten until scholars were prompted to redeem it from insinuations made by Charles Beard in An Economic Interpretation of the Constitution. 

As Madison began a new phase of The Federalist, he saw his first task to be defending the reputation of the Convention. Beginning Federalist 37 he cautioned, "a faultless plan was not to be expected." The Convention faced a "novel undertaking." In addition to balancing energy and stability and partitioning power between the national and state governments, the Convention had to address the "interfering pretensions of the larger and smaller States." Finally, without explicitly addressing sectional division, Madison alluded to "[o]ther combinations, resulting from a difference of local position and policy," which further complicated their task. Referring to Federalist 10 he explained, though a "variety of interests, for reasons sufficiently explained in a former paper, may have a salutary influence on the administration of the government when formed, every one must be sensible of the contrary influence, which must have been experienced in the task of forming it."

Madison tacitly revealed his judgment that the Convention had been rife with uncontrolled factions, and he was convinced the spirit of faction would be even more prominent in a second convention. Even so, the proposed Constitution was better than what came before, including with respect to the slave trade. He noted in Federalist 42 that the power to prohibit the importation of slaves was "a great point gained in favor of humanity." Nevertheless he condemned the "barbarism" of that trade and singled out "the few States which continue the unnatural traffic, [against] the prohibitory example which has been given by so great a majority of the Union." 

In his Convention notes, Madison used a footnote to single out delegates from New England and South Carolina who had come to an "understanding" regarding the slave trade. He documented the sentiment within the Convention that this bargain was "dishonorable." Mary Sarah Bilder uses the similarity of Madison's judgment to Luther Martin's as reason to question the accuracy of Madison's memory. The more significant conclusion is that Madison documented this judgment for posterity. William Lloyd Garrison recovered this judgment from Madison's notes, and it reflects the judgment of the American people throughout our nation's history.