George Mason, one of three delegates who refused to sign the Constitution at the conclusion of the Convention, revealed the primary cause of displeasure in a letter to Thomas Jefferson in 1788: his disaffection resulted from “a Compromise between the Eastern, and the two Southern States [South Carolina and Georgia], to permit the latter to continue the Importation of Slaves for twenty odd Years; a more favourite Object with them than the Liberty and Happiness of the People.”
The compromise to which Mason referred was one of those deals which seem specially designed to vindicate the old adage comparing law-making to sausage-making. It involved some horse-trading between New England’s interests in creating a government that could effectively control navigation acts and the Deep South’s interest in continuing the international slave trade. Though the formation of the 20-year compromise is ugly to witness and its outcome was far from ideal, it was a definite improvement over the existing situation.
The new Constitution for the first time held out the promise that Congress could prohibit the slave trade throughout all of the states by 1808 (and almost everyone in the country fully expected that Congress would act on that promise). The 20-year compromise therefore changed none of their existing circumstances for the worse, and it gave hope that the situation would soon be changed for the better. And this improvement was made possible only because of the moral pressures against slavery, which were being exerted by certain vocal members from within the Convention, including George Mason.
Under the Articles of Confederation, the states had the liberty to import slaves without limit and in perpetuity, and there was no power on earth that could stop them. As early as 1774, the Continental Congress had passed a ban, of sorts, against the slave trade. But the Continental Congress, like the Confederation Congress that followed, had no power to enforce the ban, so it was in reality no more than a statement of national goals, and it was widely ignored by the states. Absent a central government to enforce these prohibitions, limitations on the slave trade would have to come from laws or constitutional provisions passed by the state governments. And almost all of the states had voluntarily outlawed the international slave trade by 1787, but there was nothing preventing any state from reversing course if it so chose. Even South Carolina had put a temporary prohibition on the importations prior to the Convention in 1787. But this state had halted the trade for economic reasons, not for anti-slavery ones, and South Carolina’s delegates insisted that the federal government should not be allowed to control whether they decided to import slaves or not. Leaving even one state free to import, however, would have continental significance. As Mason pointed out in the Convention, the prohibitions of the other states “would be in vain, if South Carolina and Georgia be at liberty to import”; they would “fill” the western territory with slaves.
The subject of the African slave trade was not debated directly until rather late in the Convention, although the subject had been raised during other discussions, principally during debates over the three-fifths clause. Paterson, Morris, King, Dickinson, and Luther Martin had all expressed concern that the three-fifths clause would lead to the unintended consequence of providing an encouragement for the further importation of slaves.
On July 23, the Convention decided to appoint a Committee of Detail, which would be assigned with the task of drawing up a draft constitution that summed up all their determinations to date. General Pinckney “reminded the Convention, that, if the committee should fail to insert some security to the Southern States against an emancipation of slaves, and taxes on exports, he should be bound by duty to his state to vote against their report.” This was really the first time that the Deep South had thrown down the gauntlet about inserting some explicit constitutional protection for slavery. The five-member Committee of Detail consisted of one delegate (Rutledge) who was stoutly pro-slavery, one member (Randolph) who was clearly opposed to the slave trade yet who had wanted to see other protections for the institution of slavery in the South, and three members (Gorham, Wilson, and Ellsworth) who were reliable Northern accommodators to Southern slave interests. Still, the Committee’s report, which was read on August 6, only partially complied with Pinckney’s demands. One section stipulated: “No tax or duty shall be laid by the Legislature on articles exported from any State; nor 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 first part of that section (forbidding the taxation of exports) was believed to benefit the economies of all of the Southern states (which were producers of export commodities such as tobacco and rice); the second part (relating to the “importation of such persons as the several States shall think proper to admit”) would prohibit the Congress from outlawing the slave trade or even taxing imported slaves. But there was no wholesale protection for slave property.
Debate on that section did not begin in earnest until August 21. The first salvo was launched by Luther Martin, who proposed reversing the gist of that section, “so as to allow a prohibition or tax on the importation of slaves.” Martin was himself a slaveowner from Maryland, but like most of the delegates outside of South Carolina and Georgia, he had a deep antipathy to the slave trade, and he ticked off a number of reasons why it was high time to put an end to it. In particular, if the Constitution were to allow the Deep South to continue importing slaves, it would be “inconsistent with the principles of the revolution, and dishonorable to the American character.”
John Rutledge of South Carolina, who was almost certainly the author of the slave-trade guarantee in the Committee’s report, would brook no opposition: “Religion and humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is, whether the Southern States shall or shall not be parties to the Union.” Charles Pinckney reinforced the implied threat: “South Carolina can never receive the plan if it prohibits the slave trade.” And Abraham Baldwin later joined his state to the emerging phalanx: “Georgia was decided on this point.” From the outset and repeatedly, South Carolina and Georgia stuck to their ultimatum: their “right” to import slaves would be protected by the Constitution or those two states would not be a party to the Constitution. And by allowing these two states to remain outside of the Union, the delegates would not be changing any of their circumstances for the better: those states would still be able to continue importing slaves indefinitely. These two states soon discovered that they had allies from Connecticut. Ellsworth and Sherman both gave lip service to the evils of the slave trade, but they also urged their colleagues not to make any difficulties over a power that it was not absolutely necessary for the new government to have.
Other delegates saw matters differently. George Mason, who owned more slaves than nearly anyone at the Convention, nonetheless reviled the institution and had been a zealous opponent of the slave trade for decades. His scathing attack at the Convention surpassed even Gouverneur Morris’ invective. First, he blamed the British for originating “this infernal traffic,” and he warned that unless they could put a stop to it, the Western Territories would be filled with slaves. He named various reasons why slavery should be suppressed as much as possible: “Slavery discourages arts and manufactures. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant.” Mason even directed some of his polemic toward the New England shipping interests: he “lamented that some of our eastern brethren had, from a lust of gain, embarked in this nefarious traffic.” He recognized that the Southern States had always possessed the power to decide this question for themselves before, but as “was the case with many other rights,” the right to import slaves must now “be properly given up. He held it essential, in every point of view, that the general government should have power to prevent the increase of slavery.”
There were many delegates who clearly wanted to appease the two intransigent states. Roger Sherman said it was better to allow the traffic to continue rather than part with South Carolina and Georgia, “if they made that a sine qua non.” Nevertheless, several other delegates stood firm and refused to be cowed by the threats from the Deep South. The obduracy of Georgia and South Carolina on this question has been thoroughly examined by historians, but too few showcase the far more admirable stubbornness of the delegates who stood up to them. Rufus King issued an ultimatum of his own: “If two states will not agree to the Constitution, as stated on one side, he could affirm with equal belief, on the other, that great and equal opposition would be experienced from the other states.” John Dickinson “considered it as inadmissible, on every principle of honor and safety, that the importation of slaves should be authorized to the states by the Constitution.” John Langdon of New Hampshire “was strenuous for giving the power to the general government. He could not, with a good conscience, leave it with the states.” Edmund Randolph declared that “he could never agree to the clause as it stands. He would sooner risk the Constitution.” Once the threats, nonnegotiables, and ultimatums had been liberally invoked on both sides, the delegates found that they had blustered themselves into an old-fashioned political standoff.
At last, Gouverneur Morris suggested a path of compromise out of the impasse. He suggested that they send the whole subject of the slave trade into a committee, “including the clauses relating to taxes on exports and to a navigation act. These things may form a bargain among the Northern and Southern States.” These seemingly irrelevant issues—taxes on exports and a power over Navigation Acts—were favorite objects of the Northern States, and up to this point in the Convention they had been unable to win the assent of the Convention as a whole. The Northern States had been interested in laying taxes on exports for the purpose or raising national revenue, because they believed that such a tax would fall disproportionately on the Southern States. And the New England states that were heavily involved in shipping had also wanted Congress to be able to pass “navigation acts”—which could be used to impose tariffs or close off some markets altogether—in order to protect domestic manufactures or retaliate against the commercial policies of other countries. But most of the delegates from the Southern States had feared that this power might be used to their disadvantage, and they formed common cause with some of the smaller Northern States, with fewer shipping interests to protect, because they had initially been wary of placing any unnecessary powers in the hands of the central government. Consequently, the power to pass “navigation acts” had been excepted from the general power to regulate commerce. Congress could still pass them, but they would require a two-thirds majority in each house. This super-majority requirement would give the Southern States an effective veto over any commercial regulations unfavorable to that region. Northern States, on the other hand, were concerned that effective trade regulation would be impossible without an easier way to pass navigation acts.
Morris was now suggesting that the two states from the Deep South could strike a bargain with some of the states from the North. A Committee was duly formed which included one member from each state; taken as a group they represented very diverse interests. The report that emerged from the committee on August 24 had scaled back the ambitions from both sides: export taxes would still be forbidden; navigation acts would no longer be excepted from the simple majority rule; and Congress would not be able to interfere with the slave trade until the year 1800 (although they could lay an import duty “at a rate not exceeding the average of the duties laid on imports”).