Joseph J. Ellis (16 page)

In the long run, as we know, the liberal values of the Declaration did indeed win out. But we also need to recognize that in the short run, during and immediately after the war for independence, there was a prevailing consensus that slavery was already on the road to extinction. In 1776, for example, when the Continental Congress voted to repeal the nonimportation agreement of 1774, it chose to retain its prohibition against the importation of African slaves, a clear statement of opposition to the resumption of the slave trade. The manpower needs created by the six-year war generated several emancipation schemes whereby slaves would be freed and their owners compensated in return for enlistment for the duration of the conflict. Though this was really an emergency proposal dictated by the military crisis, and was ultimately rejected by the planter class in South Carolina and Georgia, its very suggestion seemed prophetic. Toward the end of the war, Lafayette, that paragon of the Franco-American alliance who was always eager to join the parade when history was on the march, urged Washington to declare a general emancipation for all slaves in Virginia and resettle them in the western region of the state as tenant farmers.
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But these were merely inspirational episodes that never quite lived up to their promise. The most tangible and enduring antislavery effects of the revolutionary mentality occurred in the northern states during and immediately after the war. Vermont (1777) and New Hampshire (1779) made slavery illegal in their state constitutions. Massachusetts
declared it unconstitutional in a state Supreme Court decision (1783). Pennsylvania (1780) and Rhode Island (1784) passed laws ending it immediately within their borders. Connecticut (1784) followed suit with a gradual emancipation plan. New York and New Jersey, which contained the largest slave populations north of the Chesapeake, proved more recalcitrant for that very reason. But despite the defeat there of several gradual emancipation schemes in the 1780s, defenders of slavery in the northern states were clearly fighting a losing battle; abolition in the North was more a question of when than whether.
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Nor was this all. In 1782 the Virginia legislature passed a law permitting slave owners to free their slaves at their own discretion. By the end of the decade, there were over twelve thousand freedmen in the state. At the same time, Thomas Jefferson was writing
Notes on the State of Virginia
, the only book he ever published, in which he sketched out a plan whereby all slaves born after 1800 would eventually become free. In 1784 Jefferson also proposed a bill in the federal Congress prohibiting slavery in all the western territories; it failed to pass by a single vote. One did not need to be a hopeless visionary to conjure up a mental picture of the American Revolution as a dramatic explosion that had destroyed the very foundation on which slavery rested and then radiated out its emancipatory energies with irresistible force: The slave trade was generally recognized as a criminal activity; slavery was dead or dying throughout the northern states; the expansion of the institution into the West looked uncertain; Virginia appeared to be the beachhead for an antislavery impulse destined to sweep through the South; the time seemed ripe to reconcile America’s republican rhetoric with a new postrevolutionary reality.
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This uplifting vision, it turned out, was mostly a mirage. In fact, the very presumptiveness of the revolutionary rhetoric served to obfuscate the quite palpable reality that slavery, no matter how anomalous in purely ideological terms, was still deeply imbedded in the very structure of American society at multiple levels or layers that remained impervious to wishful thinking and revolutionary expectations.

The passionate conviction that the Revolution was like a mighty wave fated to sweep slavery off the American landscape actually created false optimism and fostered a misguided sense of inevitability that rendered human action or agency superfluous. (Why bother with specific schemes when history would soon arrive with all the answers?) Moreover,
one of the reasons the Revolution proved so successful as a movement for independence was that its immediate and short-run goals were primarily political: removing royal governors and rewriting state constitutions that, in fact, already embodied many of the republican features the Revolution now sanctioned. Removing slavery, however, was not like removing British officials or revising constitutions. In isolated pockets of New York and New Jersey, and more panoramically in the entire region south of the Potomac, slavery was woven into the fabric of American society in ways that defied appeals to logic or morality. It also enjoyed the protection of one of the Revolution’s most potent legacies, the right to dispose of one’s property without arbitrary interference from others, especially when the others resided far away or claimed the authority of some distant government. There were, to be sure, radical implications latent in the “principles of ’76” capable of challenging privileged appeals to property rights, but the secret of their success lay in their latency—that is, the gradual and surreptitious ways they revealed their egalitarian implications over the course of the nineteenth century. If slavery’s cancerous growth was to be arrested and the dangerous malignancy removed, it demanded immediate surgery. The radical implications of the revolutionary legacy were no help at all so long as they remained only implications.
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The depth and apparent intractability of the problem became much clearer during the debates surrounding the drafting and ratification of the Constitution. Although the final draft of the document was conspicuously silent on slavery, the subject itself haunted the closed-door debates. No less a source than Madison believed that slavery was the central cause of the most elemental division in the Constitutional Convention: “the States were divided into different interests not by their difference of size,” Madison observed, “but principally from their having or not having slaves.… It did not lie between the large and small States: it lay between the Northern and Southern.”
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The delegates from New England and most of the Middle Atlantic states drew directly on the inspirational rhetoric of the revolutionary legacy to argue that slavery was inherently incompatible with the republican values on which the American Revolution had been based. They wanted an immediate end to the slave trade, an explicit statement prohibiting the expansion of slavery into the western territories as a condition for admission into the union, and the adoption of a national
plan for gradual emancipation analogous to those state plans already adopted in the North. The most forceful expression of the northern position on the slave trade came, somewhat ironically, from Luther Martin of Maryland, who denounced it as “an odious bargain with sin” that was “inconsistent with the principles of the revolution and dishonorable to the American character.” The fullest expression of the northern position on abolition itself came from Gouverneur Morris, a New Yorker, but serving as a delegate from Pennsylvania, who described slavery as “a curse” that actually retarded the economic development of the South and “the most prominent feature in the aristocratic countenance of the proposed Constitution.” Morris even proposed a national tax to compensate the slave owners, claiming that he would much prefer “a tax for paying for all the Negroes in the United States than saddle posterity with such a Constitution.” In the speeches of Martin and Morris one can discern the clearest articulation of the view, later embraced by the leadership of the abolitionist movement, that slavery was a nonnegotiable issue; that this was the appropriate and propitious moment to place it on the road to ultimate extinction; and that any compromise of that long-term goal was a “covenant with death.”
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The southern position might more accurately be described as “deep southern,” since it did not include Virginia. Its major advocates were South Carolina and Georgia, and the chief burden for making the case in the Constitutional Convention fell almost entirely on the South Carolina delegation. The underlying assumption of this position was most openly acknowledged by Charles Cotesworth Pinckney of South Carolina—namely, that “South Carolina and Georgia cannot do without slaves.” What those from the Deep South wanted was open-ended access to African imports to stock their plantations. They also wanted equivalently open access to western lands, meaning no federal restrictions on slavery in the territories. Finally, they wanted a specific provision in the Constitution that would prohibit any federal legislation restricting the property rights of slave owners—in effect, a constitutional assurance that slavery as it existed in the Deep South would be permitted to flourish. The clearest statement of their concerns came from Pierce Butler and John Rutledge of South Carolina. Butler explained that “the security the southern states want is that their Negroes may not be taken from them.” Rutledge added that “the people of those States will never be such fools as to give up so important an
interest.” The implicit but unmistakably clear message underlying their position, which later became the trump card played by the next generation of South Carolinians in the Nullification Crisis in 1832, then more defiantly by the secessionists in 1861, was the threat to leave the union if the federal government ever attempted to implement a national emancipation policy.
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Neither side got what it wanted at Philadelphia in 1787. The Constitution contained no provision that committed the newly created federal government to a policy of gradual emancipation, or in any clear sense placed slavery on the road to ultimate extinction. On the other hand, the Constitution contained no provisions that specifically sanctioned slavery as a permanent and protected institution south of the Potomac or anywhere else. The distinguishing feature of the document when it came to slavery was its evasiveness. It was neither a “contract with abolition” nor a “covenant with death,” but rather a prudent exercise in ambiguity. The circumlocutions required to place a chronological limit on the slave trade or to count slaves as three-fifths of a person for purposes of representation in the House, all without ever using the forbidden word, capture the intentionally elusive ethos of the Constitution. The underlying reason for this calculated orchestration of non-commitment was obvious: Any clear resolution of the slavery question one way or the other rendered ratification of the Constitution virtually impossible.

Two specific compromises illustrate the tendency to fashion political bargains on slavery that simultaneously disguised the deep moral division within the Convention and framed the compromise solution in terms that permitted each side to claim victory. The first enigmatic bargain concerned the expansion of slavery into the West and actually occurred in the Confederation Congress that was also meeting in Philadelphia. One of the last and most consequential acts of the Congress was to pass the Northwest Ordinance in July of 1787. Article Six of the ordinance forbade slavery in the territory north of the Ohio River, a decision that could plausibly be interpreted as the first step toward a more general exclusion of slavery in all incoming states (the Jefferson proposal of 1784). On the other hand, the ordinance could also be read as a tacit endorsement of slavery in the southwestern region (which eventually proved to be the case). In any event, the passage of the Northwest Ordinance was a blessed event for the delegates
at the Constitutional Convention, in part because it removed a potentially divisive issue from their agenda, and in part because the solution it posed could be heard to speak with both a northern and southern accent.
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The second bargain can, with considerable justice, be described as the most important compromise reached at the Constitutional Convention, even more so than the “Great Compromise” between large and small states over representation in the Senate and House. It might more accurately be called the “Sectional Compromise.” No less an authority than Madison considered it the most consequential of all the secret deals made in Philadelphia: “An understanding on the two subjects of
navigation
and
slavery,”
Madison explained, “had taken place between those parts of the Union.” The bargain entailed an exchange of votes whereby New England agreed to back an extension of the slave trade for twenty years in return for support from the Deep South for making the federal regulation of commerce a mere majority vote in the Congress rather than a supermajority of two-thirds. As with the Northwest Ordinance, both sides could declare victory; and the true victors would only become known with the passage of time. (John C. Calhoun would subsequently conclude that if the Deep South had regarded this bargain as a wager on the future, it was a losing bet.)
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The debates in the ratifying conventions of the respective states only exposed the irreconcilable differences of opinion that the Constitution had so deftly bundled together. In Massachusetts and Pennsylvania, for example, opponents of the Constitution objected to the implicit acceptance of slavery’s persistence, represented by the three-fifths clause and the twenty-year extension of the slave trade. Supporters assured them, however, that these partial and limited concessions only reflected the fading gasps of a dying institution. James Wilson of Pennsylvania predicted that emancipation was inevitable “and though the period is more distant than I could wish, yet it will produce the same kind of gradual change for the whole nation as was pursued in Pennsylvania.” As for the western territories, Wilson was certain that Congress “would never allow slaves in any of the new states.” Luther Martin, on the other hand, came out against the Constitution on the grounds that the protections afforded slavery “render us contemptible to every
true friend
of liberty in the world.” Martin was perhaps the first public advocate of the “covenant with death” interpretation of the
Constitution, as well as the first former delegate to denounce the Sectional Compromise as a corrupt bargain. But in a close vote, his Maryland colleagues rejected his reading of the document as excessively pessimistic.
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