of the institution of slavery, and more than once he vowed to free his slaves. However, during the period between the adoption of the Declaration of Independence on July 4, 1776, and his death precisely fifty years later to the day, on July 4, 1826, other than a few individual cases of emancipation-two during his lifetime and five in his will- Jefferson continued to own, sell, and purchase slaves for his own personal use. There is evidence that he took pains to instruct his property managers and overseers to exercise care that his name not be associated with these transactions when they were recorded in the local press. He died bankrupt, never freeing his slaves.
The Articles of Confederation, the first organic law of the new nation following the American Revolution, were silent on the question of slavery, leaving to the individual states the option of whether to allow slavery, as well as the power to regulate and enforce it. However, with no ability to collect taxes or to enforce national laws the confederation was a failure. Within six years of its adoption, it was clear that something more was needed if the new nation was to survive.
In May 1787 delegates from twelve of the original thirteen states convened in Philadelphia; Rhode Island absented itself. The initial goal was to revise the Articles of Confederation, but this goal was rapidly abandoned. Meeting in secret sessions, the group was determined to write a new constitution. Delegates quickly coalesced around the concept of three branches for the new government-executive, legislative, and judicial-but just as quickly divided over the issue of how to apportion representation within the legislative branch. This resulted in the “Great Compromise,” by which large states would be assured of representation based on population in the House of Representatives and small states were assured of equal representation in the Senate, where each state would have two senators regardless of population.
Bound up in all this was the question of African slavery. The principal issue was whether slaves were to be characterized as property or as persons. Northern states, which generally opposed the institution of slavery as much for its effect on economics as a cheap source of labor as for reasons of ethics, wanted the slaves to be characterized as persons. Southern states became ambivalent until they realized that if the slaves were described as persons, this could enhance southern representation in the House of Representatives. Almost all the southern states were large in terms of geography but small in population as compared to those in the North.
In the negotiations that swirled around the language of the original Constitution, the issue of a state’s populace was critical. Population would determine not only the number of representatives in Congress for each state but the number of electoral votes to be awarded to the various states in electing the president. Therefore, control over two of the three branches of government was directly determined by population, and the third branch, the judiciary, was indirectly controlled through presidential nomination.
For southern states, where 40 percent of the residents of the various states were owned by the other 60 percent, the importance of counting African slaves in the population and their characterization as such were vital. If the South was to survive, its slaves under terms of the Constitution had to be called persons, even though these particular individuals were to be treated as property. The disadvantage to the South was that state taxes paid to the federal government were also based on a state’s population. This, however, was a blow the South was willing to suffer. Yet still there was no agreement. Southern states wanted all the slaves counted as persons. Northern states objected.
Lost in the mysteries of time, because much of what occurred was done in secret, is the question of how delegates arrived at the three-fifths compromise, by which black slaves would be counted as three-fifths of a person. Some believe that a trade-off was made by the southern states, giving to the North the so-called Northwest Ordinance, in which slavery was banned in the Old Northwest Territory (today the states of Ohio, Illinois, Indiana, Michigan, and parts of Wisconsin). The deals on slavery were endless.
Two other issues remained to be dealt with by compromise: the question of the slave trade (whether and for how long states could continue to import slaves from Africa) and the fugitive-slave clause that allowed bounty hunters to track down escaped slaves and return them to their owners. Georgia and both Carolinas threatened to walk out of the convention if continued importation of slaves from Africa were banned under the Constitution. In a deal with these states, and to keep them in the fold of the new nation, the North agreed to extend the slave trade to the year 1808.
In addition, and in part because a fugitive-slave provision had been included in the Northwest Ordinance, allowing slave owners to recapture slaves who escaped to the Northwest Territory, a similar clause was placed in the new Constitution. This provision resulted not only in the recapture of escaped slaves but in the enslavement of hundreds and perhaps thousands of free black citizens in northern states who had been freed by their owners.
In return for the Constitution’s fugitive-slave clause, northern states received concessions from the South regarding shipping and trade. Some historians justify the northern founders in their dealings with the South, arguing that in 1787 the North viewed slavery as a dying institution. After all, how could anyone foresee that technology, in the form of Eli Whitney’s cotton gin, would revitalize the economics of slavery a mere five years after the Constitution was written?
Still the question lingers. Would these men of reason and realism, merchants and lawyers, tread on the issue of slavery differently had they been able to foresee the future? The fundamental fact remains that they wanted a new nation. The price of holding on to the original thirteen colonies was slavery. It was a price that history records they were willing for others to pay.
Acknowledgments
In the writing of this book, special thanks are due to Nils and Carolyn Schoultz for constant support and encouragement. Without them and others like them who showered their love on me during difficult times, this book would not have been possible.
I wish to thank my editor, David Highfill, for his careful attention to detail, his encouragement, and most of all his patience in my delivery of the manuscript.
And finally to my literary agent, Esther Newberg of ICM, I owe thanks for placing this book with a caring publisher and for exercising sound business judgment, which she always does.
About the Author
Steve Martini is the author of numerous New York Times bestsellers including Double Tap, The Arraignment, The Jury, The Attorney, and others featuring defense attorney Paul Madriani. Martini has practiced law in California in both state and federal courts and has served as an administrative law judge and supervising hearing officer. He lives in the Pacific Northwest.
www.stevemartini.com
