The Constitutional Convention: The Three-Fifths Clause

The Constitutional Convention: The Three-Fifths Clause

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Introduction

When the delegates to the Constitutional Convention discussed representation in the legislative branch, two questions absorbed their attention. First, should representation be proportional to population in both houses or should the Senate represent not population but the states? Second, which persons resident in the United States should be counted in deciding representation in the House of Representatives? The excerpts presented below focus on the second of these questions. They show the delegates presenting arguments for and against a variety of options. Early in the discussion, representatives from the lower south (North Carolina, South Carolina, and Georgia) raised the issue of counting slaves for purposes of representation, making clear that protecting slavery was for them a condition for remaining in the government the delegates were devising. A number of the other delegates objected to counting slaves. As part of this discussion, the delegates considered the idea of counting free inhabitants and “three fifths of all other persons” as a compromise basis for representation.

In considering this compromise and the arguments for and against it that the delegates raised, we should keep two things in mind. At certain points in the discussion, delegates considered counting only white inhabitants fully, and counting three fifths of all others, including both free and enslaved African-Americans. The delegates did not choose that course. As adopted, the Constitution read “representatives . . . shall be apportioned among the several States . . . according to their respective numbers which shall be determined by adding the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.” It would be inaccurate to say therefore that the three-fifths clause meant that the delegates considered all African-Americans to be only three fifths of a white person, since free African Americans were counted as whole persons. Second, since southern delegates proposed counting slaves the same as free inhabitants, the three-fifths compromise was less than the slaveowners asked for, and to that extent a limitation on the slave power in national politics. (In this connection, the interested reader might consult Gouverneur Morris’s denunciation of slavery on August 8.)

During the time that the delegates discussed the three-fifths clause, the Northwest Ordinance passed in Congress (July 13, 1787). Article 6 of the Ordinance declared that “there shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted” (See Document 10).

Source: Gordon Lloyd, ed., Debates in the Federal Convention of 1787 by James Madison, a Member (Ashland, Ohio: Ashbrook Center, 2014), 77-86, 208-23 and 234-235.


Mr. SHERMAN[1] proposed, that the proportion of suffrage in the first branch[2] should be according to the respective numbers of free inhabitants; and that in the second branch, or Senate, each State should have one vote and no more. He said, as the States would remain possessed of certain individual rights, each State ought to be able to protect itself; otherwise, a few large States will rule the rest. The House of Lords in England, he observed, had certain particular rights under the Constitution, and hence they have an equal vote with the House of Commons, that they may be able to defend their rights.

Mr. RUTLEDGE[3] proposed, that the proportion of suffrage in the first branch should be according to the quotas of contribution. The justice of this rule, he said, could not be contested. Mr. BUTLER[4] urged the same idea; adding, that money was power; and that the States ought to have weight in the government in proportion to their wealth.

Mr. KING[5] and Mr. WILSON[6] moved, “that the right of suffrage in the first branch of the National Legislature ought not to be according to the rule established in the Articles of Confederation,[7] but according to some equitable ratio of representation.” The clause, so far as it related to suffrage in the first branch, was postponed, in order to consider this motion.

Mr. DICKINSON[8] contended for the actual contributions of the States, as the rule of their representation and suffrage in the first branch. By thus connecting the interests of the States with their duty, the latter would be sure to be performed.

Mr. KING remarked, that it was uncertain what mode might be used in levying a national revenue; but that it was probable, imposts would be one source of it. If the actual contributions were to be the rule, the non-importing States, as Connecticut and New Jersey, would be in a bad situation, indeed. It might so happen that they would have no representation. . . .

It was then moved by Mr. RUTLEDGE, seconded by Mr. BUTLER, to add to the words, “equitable ratio of representation,” at the end of the motion just agreed to, the words “according to the quotas of contribution.”

On motion of Mr. WILSON, seconded by Mr. PINCKNEY,[9] this was postponed; in order to add, after the words, “equitable ratio of representation,” the words following: “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, in each State”—this being the rule in the act of Congress, agreed to by eleven States, for apportioning quotas of revenue on the States, and requiring a census only every five, seven, or ten years.[10]

Mr. GERRY[11] thought property not the rule of representation. Why, then, should the blacks, who were property in the South, be in the rule of representation more than the cattle and horses of the North?

Mr. SHERMAN moved, that a question be taken, whether each State shall have one vote in the second branch. Everything, he said, depended on this. The smaller States would never agree to the plan on any other principle than an equality of suffrage in this branch. Mr. ELLSWORTH[12] seconded the motion. . . .

. . . Mr. GORHAM[13] made a report, which was postponed till to-morrow, to give an opportunity for other plans to be proposed—the Report was in the words following: . . .

  1. Resolved, that the rights of suffrage in the first branch of the National Legislature, ought not to be according to the rule established in the Articles of Confederation, but according to some equitable ratio of representation, namely, 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, in each State.
  2. Resolved, that the right of suffrage in the second branch of the National Legislature, ought to be according to the rule established for the first. . . .

July 11

Mr. WILLIAMSON[14] . . . moved. . .“that in order to ascertain the alterations that may happen in the population and wealth of the several States, a census shall be taken of the free white inhabitants, and three-fifths of those of other descriptions on the first year after this government shall have been adopted, and every — year thereafter; and that the representation be regulated accordingly.”

. . . Mr. BUTLER and General PINCKNEY[15] insisted that blacks be included in the rule of representation equally with the whites; and for that purpose moved that the words “three fifths” be struck out.

Mr. GERRY thought that three-fifths of them was, to say the least, the full proportion that could be admitted.

Mr. GORHAM. This ratio was fixed by Congress as a rule of taxation. Then it was urged, by the Delegates representing the States having slaves, that the blacks were still more inferior to freemen. At present, when the ratio of representation is to be established, we are assured that they are equal to freemen. The arguments on the former occasion had convinced him that three-fifths was pretty near the just proportion, and he should vote according to the same opinion now.

Mr. BUTLER insisted 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 an 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. . . .

. . . Mr. WILLIAMSON reminded Mr. GORHAM that if the Southern States contended for the inferiority of blacks to whites when taxation was in view, the Eastern States, on the same occasion, contended for their equality. He did not, however, either then or now, concur in either extreme, but approved of the ratio of three-fifths.

On Mr. BUTLER’S motion, for considering blacks as equal to whites in the apportionment of representation,—Delaware, South Carolina, Georgia, aye—3; Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, no—7; New York, not on the floor. . . .

Mr. KING, being much opposed to fixing numbers as the rule of representation, was particularly so on account of the blacks. He thought the admission of them along with whites at all, would excite great discontents among the States having no slaves. He had never said, as to any particular point, that he would in no event acquiesce in and support it; but he would say that if in any case such a declaration was to be made by him, it would be in this. He remarked that in the temporary allotment of representatives made by the Committee, the Southern States had received more than the number of their white and three-fifths of their black inhabitants entitled them to.

. . . Mr. GORHAM . . . . recollected that when the proposition of Congress for changing the eighth Article of the Confederation was before the Legislature of Massachusetts, the only difficulty then was, to satisfy them that the negroes ought not to have been counted equally with the whites, instead of being counted in the ratio of three-fifths only.

Mr. WILSON did not well see, on what principle the admission of blacks in the proportion of three-fifths, could be explained. Are they admitted as citizens—then why are they not admitted on an equality with white citizens? Are they admitted as property—then why is not other property admitted into the computation? These were difficulties, however, which he thought must be overruled by the necessity of compromise. He had some apprehensions also, from the tendency of the blending of the blacks with the whites, to give disgust to the people of Pennsylvania. . . .

Mr. GOUVERNEUR MORRIS[16] was compelled to declare himself reduced to the dilemma of doing injustice to the Southern States, or to human nature; and he must therefore do it to the former. For he could never agree to give such encouragement to the slave trade, as would be given by allowing them a representation for their negroes; and he did not believe those States would ever confederate on terms that would deprive them of that trade.

On the question for agreeing to include three-fifths of the blacks, — Connecticut, Virginia, North Carolina, Georgia, aye — 4; Massachusetts, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, no — 6. . . .


July 12

Mr. GOUVERNEUR MORRIS moved to add to the clause empowering the Legislature to vary the representation according to the principles of wealth and numbers of inhabitants, a proviso, “that taxation shall be in proportion to representation.”

Mr. BUTLER contended again, that representation should be according to the full number of inhabitants including all the blacks.

Mr. MASON[17] also admitted the justice of the principle, but was afraid embarrassments might be occasioned to the Legislature by it. . . .

Mr. GOUVERNEUR MORRIS admitted that some objections lay against his motion, but supposed they would be removed by restraining the rule to direct taxation. . . .

General PINCKNEY liked the idea. . . . He was alarmed at what was said yesterday, concerning the negroes. . . .

. . . Mr. DAVIE[18] said it was high time now to speak out. He saw that it was meant by some gentlemen to deprive the Southern States of any share of representation for their blacks. He was sure that North Carolina would never confederate on any terms that did not rate them at least as three-fifths. If the Eastern States meant, therefore, to exclude them altogether, the business was at an end. . . .

Mr. GOUVERNEUR MORRIS. It had been said that it is high time to speak out. As one member, he would candidly do so. He came here to form a compact for the good of America. He was ready to do so with all the States. He hoped and believed that all would enter into such a compact. If they would not, he was ready to join with any States that would. But as the compact was to be voluntary, it is in vain for the Eastern States to insist on what the Southern States will never agree to. It is equally vain for the latter to require what the other States can never admit; and he verily believed the people of Pennsylvania will never agree to a representation of negroes. What can be desired by these States more than has been already proposed—that the Legislature shall from time to time regulate representation according to population and wealth?

General PINCKNEY desired that the rule of wealth should be ascertained, and not left to the pleasure of the Legislature; and that property in slaves should not be exposed to danger, under a government instituted for the protection of property.

. . . Mr. ELLSWORTH . . . moved to add to the last clause adopted by the House the words following, “and that the rule of contribution by direct taxation, for the support of the Government of the United States, shall be the number of white inhabitants and three-fifths of every other description in the several States, until some other rule that shall more accurately ascertain the wealth of the several States can be devised and adopted by the Legislature.”

Mr. BUTLER seconded the motion, in order that it might be committed.

Mr. RANDOLPH[19] was not satisfied with the motion. . . . He proposed, in lieu of Mr. ELLSWORTH’s motion, “that in order to ascertain the alterations in representation that may be required, from time to time, by changes in the relative circumstances of the States, a census shall be taken within two years from the first meeting of the General Legislature of the United States, and once within the term of every — years afterwards, of all the inhabitants, in the manner and according to the ratio recommended by Congress in their Resolution of the eighteenth day of April, 1783, (rating the blacks at three-fifths  of their number); and that the Legislature of the United States shall arrange the representation accordingly.” He urged strenuously that express security ought to be provided for including slaves in the ratio of representation. He lamented that such a species of property existed. But as it did exist, the holders of it would require this security. It was perceived that the design was entertained by some of excluding slaves altogether; the Legislature, therefore, ought not to be left at liberty.

Mr. ELLSWORTH withdraws his motion, and seconds that of Mr. RANDOLPH.

Mr. WILSON observed that less umbrage would perhaps be taken against an admission of the slaves into the rule of representation, if it should be so expressed as to make them indirectly only an ingredient in the rule, by saying that they should enter into the rule of taxation; and as representation was to be according to taxation, the end would be equally attained. He accordingly moved, and was seconded, so to alter the last clause adopted by the House, that, together with the amendment proposed, the whole should read as follows: “provided always that the representation ought to be proportioned according to direct taxation; and in order to ascertain the alterations in the direct taxation which may be required from time to time by the changes in the relative circumstances of the States, Resolved, that a census be taken within two years from the first meeting of the legislature of the United States, and once within the term of every — years afterwards, of all the inhabitants of the United States, in the manner and according to the ratio recommended by Congress in their Resolution of the eighteenth day of April, 1783; and that the Legislature of the United States shall proportion the direct taxation accordingly.”

Mr. KING. Although this amendment varies the aspect somewhat, he had still two powerful objections against tying down the Legislature to the rule of numbers,—first, they were at this time an uncertain index of the relative wealth of the States; secondly, if they were a just index at this time, it cannot be supposed always to continue so. He was far from wishing to retain any unjust advantage whatever in one part of the Republic. If justice was not the basis of the connection, it could not be of long duration. He must be short-sighted indeed who does not foresee, that, whenever the Southern States shall be more numerous than the Northern, they can and will hold a language that will awe them into justice. If they threaten to separate now in case injury shall be done them, will their threats be less urgent or effectual when force shall back their demands? Even in the intervening period there will be no point of time at which they will not be able to say, do us justice or we will separate. He urged the necessity of placing confidence, to a certain degree in every government, and did not conceive that the proposed confidence, as to a periodical re-adjustment of the representation, exceeded that degree.

Mr. PINCKNEY moved to amend Mr. RANDOLPH’S motion, so as to make “blacks equal to the whites in the ratio of representation.” This, he urged, was nothing more than justice. The blacks are the laborers, the peasants, of the Southern States. They are as productive of pecuniary resources as those of the Northern States. They add equally to the wealth, and, considering money as the sinew of war, to the strength, of the nation. It will also be politic with regard to the Northern States, as taxation is to keep pace with representation.

. . . On Mr. PINCKNEY’S motion, for rating blacks as equal to whites, instead of as three-fifths,—South Carolina, Georgia, aye—2; Massachusetts, Connecticut, (Doctor JOHNSON, aye), New Jersey, Pennsylvania, (three against two), Delaware, Maryland, Virginia, North Carolina, no—8. . . .

On the question on the whole proposition, as proportioning representation to direct taxation, and both to the white and three-fifths of the black inhabitants, and requiring a census within six years, and within every ten years afterwards,—Connecticut, Pennsylvania, Maryland, Virginia, North Carolina, Georgia, aye—6; New Jersey, Delaware, no—2; Massachusetts, South Carolina, divided.


July 13

On the motion of Mr. RANDOLPH, the vote of Monday last, authorizing the Legislature to adjust, from time to time, the representation upon the principles of wealth and numbers of inhabitants, was reconsidered by common consent, in order to strike out wealth and adjust the resolution to that requiring periodical revisions according to the number of whites and three-fifths of the blacks.

The motion was in the words following:—“But as the present situation of the States may probably alter in the number of their inhabitants, that the Legislature of the United States be authorized, from time to time, to apportion the number of Representatives; and in case any of the States shall hereafter be divided, or any two or more States united, or new States created within the limits of the United States, the Legislature of the United States shall possess authority to regulate the number of Representatives in any of the foregoing cases, upon the principle of their number of inhabitants, according to the provisions hereafter mentioned.”

Mr. GOUVERNEUR MORRIS opposed the alteration, as leaving still an incoherence. If negroes were to be viewed as inhabitants, and the revision was to proceed on the principle of numbers of inhabitants, they ought to be added in their entire number, and not in the proportion of three-fifths. If as property, the word wealth was right; and striking it out would produce the very inconsistency which it was meant to get rid of. The train of business, and the late turn which it had taken, had led him, he said, into deep meditation on it, and he would candidly state the result. A distinction had been set up, and urged, between the Northern and Southern States. He had hitherto considered this doctrine as heretical. He still thought the distinction groundless. He sees, however, that it is persisted in; and the Southern gentlemen will not be satisfied unless they see the way open to their gaining a majority in the public councils. The consequence of such a transfer of power from the maritime to the interior and landed interest, will, he foresees, be such an oppression to commerce, that he shall be obliged to vote for the vicious principle of equality in the second branch, in order to provide some defense for the Northern States against it. But, to come more to the point, either this distinction is fictitious or real; if fictitious, let it be dismissed, and let us proceed with due confidence. If it be real, instead of attempting to blend incompatible things, let us at once take a friendly leave of each other. . . .

Mr. BUTLER. The security the Southern States want is, that their negroes may not be taken from them, which some gentlemen within or without doors have a very good mind to do. . . .

On the question to strike out wealth, and to make the change as moved by Mr. RANDOLPH, it passed in the affirmative,—Massachusetts, Connecticut, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina, Georgia, aye—9; Delaware, divided. . . .

Footnotes
  1. 1. Roger Sherman, Connecticut
  2. 2. What became the House of Representatives.
  3. 3. John Rutledge, South Carolina
  4. 4. Pierce Butler, South Carolina
  5. 5. Rufus King, Massachusetts
  6. 6. James Wilson, Pennsylvania
  7. 7. In the Articles of Confederation, each state had one vote.
  8. 8. John Dickinson, Delaware
  9. 9. Charles Pinckney, South Carolina
  10. 10. Wilson (Pennsylvania), seconded by Pinckney (South Carolina) introduces the three-fifths clause into the debate. As Wilson’s remark indicates, the idea of proportioning representation in part by counting slaves as three-fifths of free inhabitants had its roots in the way the Confederation Congress had apportioned financial support of the general government. Under the Articles of Confederation, representation was not the issue in counting slaves as three fifths of free inhabitants, because each State had one vote. The issue was a revenue formula. As Richard Beeman remarks, “. . . the fraction ‘three-fifths’ was intended as a rough approximation of the measure of wealth that an individual slave contributed to the economy of his or her state,” Plain, Honest Men: The Making of the American Constitution (New York: Random House, 2009), 154. At the Constitutional Convention, in order to prompt resolution of one of the issues involved in representation, Wilson applied in a new context a concept the delegates were familiar with.
  11. 11. Elbridge Gerry, Massachusetts
  12. 12. Oliver Ellsworth, Connecticut
  13. 13. Nathaniel Gorham, Massachusetts
  14. 14. Hugh Williamson, North Carolina
  15. 15. Charles Cotesworth Pinckney, South Carolina
  16. 16. Gouverneur Morris, Pennsylvania
  17. 17. George Mason, Virginia
  18. 18. William Davie, North Carolina