The Origins of the Three-Fifths Clause

The precursor to the Three-Fifths Clause originated as a proposed amendment to the revenue article of the Articles of Confederation.

As Merrill Jensen explains in The Articles of Confederation, the delegates who participated in the drafting of the Articles in 1776-1777 accepted that the apportionment of contributions to the “common Treasury” should be based on the wealth of the various states. To simplify a bit, they saw three possible approaches to quantifying an index of wealth: population, the value of land and improvements, and the value of all property (both real estate and personal).

The Dickinson draft of the Articles proposed to use the first method, based on population:

All Charges of Wars and all other Expences that shall be incurred for the common Defenee, or general Welfare, and allowed by the United States in General Congress assembled, shall be defrayed out of a common Treasury, which shall be supplied by the several Colonies in Proportion to the Number of Inhabitants of every Age, Sex and Quality, except Indians not paying Taxes, in each Colony, a true Account of which, distinguishing the white Inhabitants who are not slaves, shall be triennially taken and transmitted to Congress the Assembly of the United States. The Taxes for paying that Proportion shall be laid and levied by the Authority and Direction of the Legislatures of the several Colonies, within the Time agreed upon by United States assembled.

This raised cries of protest from the south. The core southern concern was the belief that they would pay more than their fair share if slaves were counted. In brief, southerners argued that, if population were to be used an index of wealth, slaves should be excluded because they were less productive than free labor. Southerners maintained that the most accurate indicator of wealth was not population at all, but the value of land and improvements.

New Englanders took the opposite view. In New England land was scare and dear, and New Englanders feared that an allocation based on real property values would result in their paying too much. They argued that total population – including slaves - should be used as the index.

In the end, New England lost the battle. The final version of Article VIII of the Articles abandoned population and provided instead that the states would pay for expenses incurred by Congress “in proportion to the value of all land within each State”:

All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.

In practice, this proved impossible. As late as Thursday February 6, 1783 Congress was still trying to figure out “the most effectual mode of estimating the value of the lands in the United States for the purpose mentioned in the Articles of Confederation.”

As Jan Lewis explains in her essay “The Three-Fifths Clause and the Origins of Sectionalism” (found in Congress and the Emergence of Sectionalism: From the Missouri Compromise to the Age of Jackson [Paul Finkelman and Donald R. Kennon, eds.]), casting about for an alternative, in 1783 Congress revisited the possibility of substituting population for land values as a surrogate for wealth. But, as before, using population promptly implicated the question of slavery: were slaves to be counted in the population, or would the count be limited to free persons?

As before, the positions of the parties were based upon self-interest; but the arguments pro and con were based on assertions concerning the efficiency of slave labor vs. free labor. Because the sole question was the amount of contributions to the common treasury – and not representation – southerners again sought to exclude slaves, arguing that slave labor was substantially less efficient than free labor and should not be counted. Northern representatives, seeking to increase the amount of contributions from slave states and reduce their own, again took the opposite position: slaves should be included because slave labor was just as efficient as free labor.

By way of compromise, two basic approaches were suggested. One approach discounted slave labor by crediting only a certain percentage of slaves toward population (e.g., one-quarter, one-half, three-quarters). The other would include in the the counting only slaves between certain ages, on the theory that slaves below and above those ages were unproductive.

On Thursday March 6, 1783, the Confederation Congress received a "Report of Mr. Nathaniel Gorham, Mr. Alexander Hamilton, Mr. James Madison, Mr. Thomas FitzSimons, [and] Mr. John Rutledge appointed to consider the means of restoring and supporting public credit and for obtaining from the States substantial funds for funding the whole debt of the United States.” The Committee's Report included a recommendation using the second approach, using population as a proxy for wealth, but excluding slaves of ages to be determined:

That as a more convenient and certain rule of fixing ascertaining the proportions to be supplied by the states respectively to the common treasury, the following alteration in the Articles of Confederation and perpetual union, between the states, be and the same is hereby agreed to in Congress; and the several states are advised, to authorize their respective delegates to subscribe and ratify the same, as part of the said instrument of union, in the words following, to wit:

So much of the eighth of the Articles of Confederation and perpetual union between the thirteen states of America, as is contained in the words following, to wit:

“All charges of war,” &c., (to the end of the paragraph), is hereby revoked and made void; and in place thereof, it is declared and concluded, the same having been agreed to in a Congress of the United States, that all charges of war and [all other expences that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states,] in proportion to the number of inhabitants, of every age, sex, and condition, except Indians not paying taxes in each State; which number shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint; provided always, that in such numeration no persons shall be included who are deemed slaves bound to servitude for life, according to the laws of the State to which they belong, other than such as may be between the ages of [___].”

Congress rejected this approach, however, and turned back to the first approach, by which some portion of the slave population would be counted as a proxy for wealth. After a good deal of haggling, an arbitrary compromise was worked out: on the theory that slave labor was 60% as efficient as free labor, three-fifths of the slave population would be counted. This compromise was contained in a revised Report of the Committee presented to the Continental Congress on Tuesday March 18, 1783:

That as a more convenient and certain rule of ascertaining the proportions to be supplied by the states respectively to the common treasury, the following alteration in the Articles of Confederation and perpetual union, between these states, be, and the several states are advised to authorize their respective delegates to subscribe and ratify the same as part of the said instrument of union in the words following, to wit:

So much of the eighth of the Articles of Confederation and perpetual union, between the thirteen states of America, as is contained in the words following, to wit.

“All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint,” is hereby revoked and made void; and in place thereof it is declared and concluded, the same having been agreed to in a Congress of the United States that, “All charges of war and all other expences that have been or shall be incurred for the common defence or general welfare, and allowed by the United States in Congress Assembled, except so far as shall be otherwise provided for, shall be defrayed out of a common treasury which shall be supplied by the several states 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, which numbers shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint.”

Apparently disagreement continued over the percentage of slaves to be included. The Journal entry for Friday March 28, 1783 suggests that proportions of “one-half” and “two-thirds” were also being advocated, and in fact the entire paragraph was stricken.

By April 1, however, the provision – including the proportion of three-fifths, was reinstated.

In the end the three-fifths ratio carried the day. On Friday April 18, 1783, the Continental Congress passed the proposed amendment in a form substantially identical to that quoted above:

That as a more convenient and certain rule of ascertaining the proportions to be supplied by the states respectively to the common treasury, the following alteration in the Articles of Confederation and perpetual union, between these states be, and the same is hereby agreed to in Congress; and the several states are advised to authorise their respective delegates to subscribe and ratify the same as part of the said instrument of union in the words following, to wit:

So much of the 8th of the Articles of Confederation and perpetual union, between the thirteen states of America, as is contained in the words following, to wit:

“All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint,” is hereby revoked and made void; and in place thereof it is declared and concluded, the same having been agreed to in a Congress of the United States, that “all charges of war and all other expences that have been or shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, except so far as shall be otherwise provided for, shall be defrayed out of a common treasury, which shall be supplied by the several states 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; which number shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint.”

The final vote was non-sectional, with nine states in favor and only one (Rhode Island, of course) against. New York's vote was divided. New Hampshire's sole delegate voted in favor, but his vote was disregarded because Article V required that a state delegation consist of at least two members.

The proposed amendment to the Articles was never ratified. Article 13 required that no “alteration” could be made to the Articles “unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

The proposed amendment concerned only allocation of contributions and had nothing to do with representation. Nonetheless, when four years later the members of the Philadelphia Convention came to consider population as basis for allocation of representatives in the “National Legislature”, the precedent naturally and immediately came to mind.

Thanks to CWhig, whose recent post on the Three-Fifths Clause alerted me to Prof. Lewis's essay and the book in which it appears. Can't say I buy his theory on the Framers' intent, though.

John Rutledge

I was looking at biographical information about John Rutledge, who served as a delegate from South Carolina to the Constitutional Convention and ran across a fact of which I was totally unaware of: he was a Justice of the Supreme Court twice.

Here's Wikipedia:

George Washington then appointed him as Associate Justice of the U.S. Supreme Court, but he served for only two years. In 1791, he became chief justice of the South Carolina Supreme Court. . . .

In 1795, George Washington again appointed Rutledge during a recess of the Senate to the U.S. Supreme Court, this time as Chief Justice of the United States replacing John Jay. Rutledge became Chief Justice on July 1 of 1795. Soon thereafter, on July 16 of 1795, Rutledge gave a highly controversial speech denouncing the Jay Treaty with England. He reportedly said in the speech "that he had rather the President should die than sign that puerile instrument — and that he preferred war to an adoption of it."

Rutledge's outspoken opposition to the Jay Treaty, and the rumors of mental illness he had suffered since the death of his wife in 1792, caused the Federalist-dominated Senate to reject his appointment on December 15, 1795. As a result, Rutledge's recess appointment automatically expired at the end of that Senate session. Rutledge thus became the only U.S. Supreme Court Justice in history to be forced out of office involuntarily, ending his public career. . . . [He left] office as Chief Justice on December 28 of 1795.

The Wikipedia article also mentions that Alexander Hamilton questioned Rutledge's sanity. Here is Hamilton's letter to Rufus King on Rutledge:

December 14, 1795.
My Dear Sir:

An extraordinary press of occupation has delayed an answer to your letter on the subject of Mr. R. Though it may come too late, I comply with your request as soon as I can.

The subject is truly a perplexing one; my mind has several times fluctuated. If there was nothing in the case but his imprudent sally upon a certain occasion, I should think the reasons for letting him pass would outweigh those for opposing his passage. But if it be really true that he is sottish, or that his mind is otherwise deranged, or that he has exposed himself by improper conduct in pecuniary transactions, the bias of my judgment would be to negative. And as to the fact, I would satisfy myself by careful inquiry of persons of character who may have had an opportunity of knowing.

It is now, and, in certain probable events, will still more be of infinite consequence that our judiciary should be well composed. Reflection upon this in its various aspects weighs heavily upon my mind against Mr. R. upon the accounts I have received of him, and balances very weighty considerations the other way.