History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2 / With Notices of Its Principle Framers

by George Ticknor Curtis

It is probable, however, that the slaveholding States would at that time have agreed to the adoption of numbers as the basis of assessment, if the Northern and Eastern States could have consented to receive the slaves into the enumeration in a smaller ratio than their whole number. But it was insisted that they should be counted equally with the free laborers of the other States; and the result of this attempt to solve a complicated and abstruse question of political economy by a theoretical rule, determining that a slave, as a producer of wealth, stands upon a precise equality with a freeman performing the same species of labor, was, that the Congress of 1776 were driven to the adoption of land as a measure of wealth, instead of the more convenient and practicable rule of numbers.[104]

But the Articles of Confederation had not been in operation for two years, when it was found that the system of obtaining supplies for the general treasury by assessing quotas upon the States according to an estimate of their relative wealth, represented by the value of their lands, was entirely impracticable; that the value of land must constantly be a source of contention and dissatisfaction between the States; and that, if the mode of defraying the expenses of the Union by requisitions were adhered to, some simpler rule must be adopted. Accordingly, in 1783 the Congress were compelled to return to the rule of numbers; and it was in the effort to agree upon the ratio in which the slaves should enter into that rule, that the proportion of three fifths was fixed upon, as a compromise of different views, in the amendment then proposed to the Articles of Confederation.[105]

Such had been the previous experience of the Union on the subject of taxation; and now, in 1787, when an effort was to be made to establish a government upon a popular representation of the States which had found it so difficult to agree upon a just and practicable rule for determining their proportions of the public burdens, the whole subject became still further complicated with the difficulties attending the adjustment of this new right of proportional representation. The maxim which would regulate it by the same ratio that is applied to the distribution of taxes, contained within itself a just principle; but it went no farther than to assert a principle of justice, and it left the subject of the rule itself surrounded by the same difficulties as before. The Southern States complained that their slaves, if counted as property for the purposes of taxation, were to be so counted upon a ratio left wholly to the discretion of Congress; and if counted as numbers, for the same purpose, that they ought not to be reckoned in their entire number. They professed their readiness to have representation and taxation regulated by the same rule, but they insisted on the security of a definite rule, to be established in the Constitution itself; and this security, they said, must embrace an admission of the slaves into the basis of representation, if they were to be included in the basis of direct taxation.[106] Accordingly, before the rule as to taxation had been determined, Randolph submitted a distinct proposition, which contemplated a census of the white inhabitants and of three fifths of all other persons, with a peremptory direction to Congress to arrange the representation accordingly.

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

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

The two objects to be accomplished were to avoid the offence that might be given to the Northern States by making the slaves in direct terms an ingredient in the rule of representation, and, on the other hand, to concede to the Southern States the right to have their representation enhanced by the same enumeration of their slaves that might be adopted for the purpose of apportioning direct taxation. These objects were effected by an arrangement proposed by Wilson. It consisted, first, in affirming the maxim that representation ought to be proportioned to direct taxation; and then, by directing a periodical census of the free inhabitants, and three fifths of all other persons, to be taken by the authority of the United States, and that the direct taxation should be apportioned among the States according to this census of persons. The principle was thus established, that, for the purpose of direct taxation, the number of inhabitants in each State should be assumed as the measure of its relative wealth; and that its right of representation should be regulated by the same measure; and as the slaves were to be admitted into the rule for taxation in the proportion of three fifths of their number only,—apparently upon the supposition that the labor of a slave is less valuable to the State than the labor of a freeman,—so they were in the same proportion only to enhance the representation. This expedient was adopted by the votes of a large majority of the States;[107] but since it had been moved as an amendment to the proposition previously accepted, which affirmed that the representation ought to be regulated by the combined rule of numbers and wealth, it appeared, when brought into that connection, to rest the representation of the slaveholding States in respect to the slaves, in part at least, upon the idea of property. To avoid all discrepancy in the application of the rule to the two subjects of representation and taxation, Governor Randolph proposed to strike the word "wealth" from the resolution; and this, having been done by a vote nearly unanimous,[108] left the enumeration of the slaves for both purposes an enumeration of persons, in less than their whole numbers; placing them in the rule for taxation, not as property and subjects of taxation, but as constituting part of an assumed measure of the wealth of a State, just as the free inhabitants constituted another part of the same measure, and placing them in the same ratio and in the same capacity in the rule for representation.[109]

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

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

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

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