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Three-Fifths of All Other Persons: How the Constitution Gave the South an Advantage

The Three-Fifths Clause of the Constitution states that population determined both “representatives and direct taxes”. That number was “to be determined by adding to the whole number of free persons … and three-fifths of all other Persons.”

While the document stopped just short of referring to these “other persons” as slaves, that was what they were. These slaves, who could not vote, would count as three-fifths of a person who could. This handed to the South an extra legislative power it would otherwise have lacked.

The ripples of this decision radiated forward until the Civil War. Its origins, however, date back to 1783 and the Articles of Confederation.

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The Articles of Confederation – Foundation for Three-Fifths

Though the debate did not start until 1819, its foundations are clear in the debates over the Articles of Confederation in 1783. At that time, most states in the fledgling Union had at least a small portion of slaves. The southern states, however, had many more than the northern. For the purposes of taxation, the debate swirled around whether slaves should count toward the population figures which determined each states’ tax obligation.

The South, more populated with slaves, generally objected to such an idea of taxing slaves, while the North generally favored it. Some proposed suggestions in the form of compromises. Abraham Clark of New Jersey suggested that the Southern States might agree to counting only half of the slaves toward that tax. He proposed that “two blacks be rated as one freeman.” And thus, counting slaves as men by fractions was born.

Several states proposed various other ratios and ideas. Oliver Wolcott of Connecticut put forward “rating them as four to three”. In his idea, three out of every four blacks would count for every one freeman. Maryland’s Daniel Carroll suggested the ratio of “four to one”. When the delegates arrived at a compromise ratio of three whites to two slaves, they voted. This figure did not pass. The North was generally for it, the South against it. 1Massachusetts sided with the South. Rhode Island found itself divided. In the debates, there was even a single mention of opposition to slavery.

James Madison
James Madison

With a little more debate, James Madison of Virginia proposed “that slaves should be rated as five to three”. This motion passed. It pulled in much of the North to the South’s side.  2Rhode Island and Connecticut fell against it. This time Massachusetts found itself divided. Roger Foster, ed., Commentaries on the Constitution of the United States (Boston: The Boston Book Company, 1895) 374-375. The arguments given for and against this clause are fascinating, and can (and should) be read here.

At this point, the three-fifths figure counted only towards taxation. It had nothing to do with representation in Congress. At this time, each state possessed a single vote – a consensus determined by their several state delegates. Enslaved people, at this point, did not count toward population totals. This did not set well with the South. They claimed that this method did not properly represent them according to their taxation. Still warm in the hearts of the Revolutionaries,  they wanted to give this a closer look.

The Virginia Plan

Four years later, in 1787, after conflict had reared its head, they called another convention. Here came the first pen strokes of the United States Constitution. In doing so, the delegates submitted two plans that both dealt with slavery, representation, and taxation. These were the Virginia Plan and the New Jersey Plan.

Roger Sherman
Roger Sherman

The Virginia Plan, submitted by Edmond Randolph on May 29, was an attempt to bandage the Articles of Confederation. After detailing the many faults that had arisen, Randolph brought up the right of suffrage. He felt voting should be tied to either “the quotas of contribution, or to the number of free inhabitants”.

Suffrage based upon the “quotas of contribution” would have consisted of one vote for every free man and three-fifths of a vote for every slave. Randolph was the first to suggest a connection between not just taxation and voting rights, but between slave ownership and additional representation. 3Oliver Joseph Thatcher, ed., The Library of Original Sources, Volume 7 (New York: University Research Extention, 1907) 254-255. Here.

They debated this specific detail the following day. James Madison expressed concern over tying it to the number of free inhabitants. Rufus King took issue with binding suffrage to taxation. Both agreed that “some better rule ought to be found” for deciding how many seats would be given to individual states.

This better rule would have to wait. They ended the debate with the agreement to change the rule, though not immediately. But this was still progress of a sort. They resolved “That the equality of suffrage established by the Articles of Confederation ought not to prevail in the national legislature; and that an equitable ratio of representation ought to be substituted.”

Pierce Butler (behind Pinckney's arm, as the good Lord intended).
Pierce Butler (behind Pinckney’s arm, as the good Lord intended).

Due to other issues which caused the delegates from Delaware to leave in protest, they postponed this question until a later date. 4Ibid,. 260-261.

The congress rejoined this particular debate on June 11th. Roger Sherman of Connecticut proposed that they tie the number delegates to the first branch of congress (later known as the House) to the free population. The second branch, the Senate, should have, in his opinion, “one vote and no more.”

North Carolina’s John Rutledge countered that they must link base representation upon taxation.  “The justice of this rule… could not be contested.”

“Money was power,” insisted Pierce Butler of South Carolina in agreement. “The states ought to have weight in the government in proportion to their wealth”. But again, they postponed any decision – following a reading of a paper submitted by Benjamin Franklin. 5Ibid., 270. Franklin’s paper is worth a read, and can be found here.

The New Jersey Plan

While this postponement was settling in once more, a second plan introduced. On June 15th, William Patterson proposed the New Jersey Plan, “to be substituted in place of that proposed by Mr. Randolph.”

Concerning suffrage and taxation, the New Jersey Plan proposed that taxes should be in proportion to “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.”

This meant that every free person, including children and indentured servants, would count as one. Every slave, however, would count as three-fifths of one. Patterson’s plan favored the equality of suffrage, giving states representation based upon population, not taxation. 6Ibid., 278.

These two plans were debated, and their multi-faceted differences were dissected over the course of the following weeks. It was again taken up on July 6th. Then, various delegates expressed their opinions of taxation and representation as a whole.

Charles Pinckney of South Carolina argued against tying taxation to the land or to revenue, but to the population. He believed that “the blacks ought to stand on an equality with the whites” when it came to taxes. As for representation in the Senate, Pinckney proposed a system based upon population. By his account, states with more people deserved votes, and the smaller states must get along with less. 7Ibid., 348; 358.

James Madison, the North and the South

James Madison took the floor, commenting on every facet of the proposed plans. He noted that while most had been seeing the divide between large states and small states, that was not actually the true division.

William Patterson
William Patterson

“It seemed now to be pretty well understood,” he said, “that the real difference of interest lay, not between the large and small, but between the northern and southern states. The institution of slavery, and its consequences, formed the line of discrimination.”

Madison observed that there were five states south of the Mason-Dixon line, and eight north of it. If each state received equal representation in the Senate, the North would greatly outnumber the South. He reminded them that even if the representation reflected population, “the northern would still outnumber the other”. However, he comforted his Southern compatriots by pointing out that the disparity was less in the population-based plan, “and every day would tend towards an equilibrium.” 8Ibid., 361.

Patterson and True Representation

This did not sit well with Patterson.  Madison wanted to give additional representation to states based not upon their voting population, but upon how many slaves were within its borders. Patterson “could regard negro slaves in no light but as property.” He then let loose a tirade against the idea of slaves counting toward any kind of vote.

“They are no free agents, have no personal liberty, no faculty of acquiring property, but on the contrary are themselves property, and, like other property, entirely at the will of the master. Has a man in Virginia a number of votes in proportion to the number of his slaves? and if negroes are not represented in the states to which they belong, why should they be represented in the general government?

“What is the true principle of representation? It is an expedient by which an assembly of certain individuals, chosen by the people themselves. If such a meeting of the people was actually to take place, would the slaves vote? They would not. Why then should they be represented?” 9The Debates on the Adoption of the Federal Constitution, Vol. V (1888) 289. You can find this here.

Almost a Compromise

Madison reminded Patterson that his plan would give the small states undue responsibility. However, he was willing to compromise, proposing that, “in the first branch [the House], the states should be represented according to their number of free inhabitants, and, in the second [the Senate], which had, for one of its primary objects, the guardianship of property, according to the whole number, including slaves.”

But with objections laid aside by most, they concluded that the first branch of the legislature [the House], would be represented according to population. Still undecided, however, was just how they would count that population. Would each person count as one, regardless of color? Would the slaves not count at all? Or would there be some sort of compromise? And what of the Senate? 10Ibid., 289-290.

This Again – The Meaning of Equal Footing

Over the ensuing days, the old debates from the Articles of Confederate resurfaced. Hugh Williamson of North Carolina again proposed the three-fifths idea, wishing to base representation in the legislature upon it. Randolph, who had proposed the Virginia Plan, agreed. He explained that it could be determined by a Federal census as “the states will be too much interested to take an impartial one for themselves.”

Many saw the three-fifths counting of slaves as a fair compromise. Pierce Butler and Charles Pinckney of South Carolina disagreed, however. They thought it was not enough, and “insisted that blacks be included in the rule of representation equally with the whites.”  Butler continued, asserting that “the labor of a slave in South Carolina was as productive and valuable as that of a freeman in Massachusetts; that as wealth was the great means of defense and utility to the nation,they were equally valuable to it with freemen; and that, consequently, and equal representation ought to be allowed for them in a government which was instituted principally for the protection of property, and was itself to be supported by property.”

George Mason, however, disagreed, even to the detriment of his own state of Virginia. He conceded that slaves were valuable. When listing their useful purposes, he allowed that they could “in cases of emergency, become themselves soldiers.” He agreed that they “ought not to be excluded” from counting toward seats in the legislature. But he could not “regard them as equal to freemen, and could not vote for them as such.”

The vote was taken “for considering blacks as equal to whites in the apportionment of representation.” Those assembled voted it down, with only Delaware, South Carolina, and Georgia calling for it to stand. 11Ibid., 296.

Morris Doubts His Pennsylvanians

This measure, of course, handed no additional rights to black people, slave or otherwise. Still, Gouverneur Morris of Pennsylvania worried that the citizens of his state might not understand this. While most of the power resided in Philadelphia, there were those whom he saw as less capable of grasping these finer points. “The back members are always most averse to the best measures,” he said. Because of this, he was even “against admitting the blacks into the census.” He held that the “people of Pennsylvania would revolt at the idea of being put on a footing with slaves. They would reject any plan that was to have such an effect.”

Gouverneur Morris
Gouverneur Morris

The slagging of his fellow Pennsylvanians aside, Morris noted that it came down to “doing injustice to the Southern States, or to human nature.” In that, he decided that injustice to the Southern States was the least damaging. With the representation of the Southern States tied to the number of slaves they owned, Morris wondered if the South couldn’t just continue to bring more over from Africa. 12Ibid., 298; 301.

The debate continued the following day, July 12th. Several, including Morris, urged that blacks not count at all towards representation. Others, such as Pinckney, held firm that when it came to representation, they must count all population, including black slaves. The three-fifths compromise came up again and again, especially propounded by Randolph, but neither extreme seemed willing to entertain it.

Pinckney again insisted that slaves must count equally toward representation. When it was finally put to a vote, however, he found only his own state and Georgia in favor. Now, he would have to compromise.

As the debates continued, taxation and representation in congress became tied together. Nobody seemed to question it after awhile, all thinking it more or less just. With a little coaxing, they finally voted upon the three-fifths formula, tied to both taxation and seats in Congress. In the end, six were for it, including Georgia; New Jersey and Delaware came out against it, with both Massachusetts and South Carolina divided. 13Ibid., 304-306.

Turning to the Senate

But this didn’t really settle the debate. All that it really did was focus upon counting slaves as three-fifths of one person in the census. How the Senate might apply this formal was still up in the air. They decided the next day, July 13th, to apply this formula to slaves as if they were inhabitants, not as wealth or property. It was certainly an easier task to undertake. 14Ibid,.307-308.

Hugh Williamson
Hugh Williamson

With still more to decide, the debate finally turned to how to populate the Senate. Would each state have an equal number of representatives, or would they have numbers based upon their populations? The small states understandably favored equal numbers. The larger states, especially the southern states, favored a number based upon their populations. Because of the previous vote, they would augment the population-based number by slaves who could not vote. This gave the Southern states a power that the Northern states could never have. As a sort of compromise measure, by a narrow margin, they decided equal representation for each state in the Senate. 15Ibid., 313-317.

This seemed to settle things. They determined to base the seats in the house upon populations, counting the slaves as three-fifths of a person. Each state would have an equal number of Senate seats.

A Nefarious Institution

When it came time for actually drafting the Constitution, the debate rose up once more. To the surprise of some, like Roger Sherman of Connecticut, who believed this matter settled, Gouverneur Morris of Pennsylvania still had much to say. He launched into a long speech about the evils of slavery.

“It was a nefarious institution,” he said. “It was the curse of heaven on the states where it prevailed.” The land, he held, was blighted wherever slavery existed.

“Upon what principle is it that the slaves shall be computed in the representation? Are they men? Then make them citizens, and let them vote. Are they property? Why, then, is no other property included? The houses of this city (Philadelphia) are worth more than all the wretched slaves who cover the rice swamps of South Carolina.

“The admission of slaves into the representation, when fairly explained, comes to this, – that the inhabitant of Georgia and South Carolina, who goes to the coast of Africa, and, in defiance of the most scared laws of humanity, tears away his fellow creatures from their dearest connections, and damns them to the most cruel bondage, shall have more votes, in a government instituted for the protection of the rights of mankind, than the citizen of Pennsylvania or New Jersey, who views, with a laudable horror, so nefarious a practice.” 16Ibid., 392-3.

Lastly, he argued that the extra taxes against the South – the three-fifths of every slave tax – was hardly compensation for representation. “It is idle to suppose that the general government can stretch its hand directly into the pockets of the people, scattered over so fast a country,” he spat. Instead, he wanted a tax on imports and exports, so as to not write slavery into the Constitution. Morris would have rather submitted himself “to a tax for paying for all the negroes in the United States, than saddle posterity with such a Constitution.” 17Ibid.

Though impassioned, he impressed few. A subsequent proposal based upon Morris’ speech lost one to ten, New Jersey the only state siding with him. In the end, they adopted the Constitution, and gave the Southern states power in addition to their voting population.

 Howard Chandler Christy's incredibly huge 1940 painting of the signing of the Constitution.

Howard Chandler Christy’s incredibly huge 1940 painting.

Things to Come

The South understood that they were in a minority, especially with most immigrants settling in the North. Nobody had any plans to actually give the slaves a vote. However, by counting them as population, even as three-fifths of a whole, they greatly increased their representation.

In the coming decades, this extra augmentation would serve the South well. It would hand to them the election of Thomas Jefferson over John Adams, who made moves to repeal the provision. By then, the South had an extra fourteen electoral votes. Adams lost by eight. 18Hanes Walton Jr, ed., The African American Electorate (CQ Press, 2012) 112.

Perhaps the most lasting effects of the three-fifths clause would come in 1819, when Missouri was about to enter the Union as a slave state. That is, however, a story for another time.

References   [ + ]

Eric
Eric has always had a love for history and the Civil War. During the 150th anniversary of the war, he wrote the Civil War Daily Gazette blog, which published daily for nearly five years. Wishing to continue the exploration, following the Charleston murders in 2015, and the activism around removing the Confederate Battle Flag, he decided to dig a little deeper into the causes and repercussions of the War.

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