1 Sep

From late 1860 to early 1861 or ‘Secession Winter’, the question of secession and preserving the Union divided Americans. Just 84 years before, Americans worried about the same thing. Leave the protection of the British crown with an established social order or build a new society from scratch? Americans feared for their welfare during this time. Why leave a union of States which had protected it? The children of the fathers of the War of 1812 fought to preserve the idea of the republic in 1860.

The Compact of 1789 gave Americans a sense of respectability worldwide through its features.  It included how Americans are represented in government under Article 1, Clause 2, Section 3, and how to amend the compact under Article V. Under Article V of the “Constitution of the United States”, amendments are made in two ways. Through Congress or the States through a Convention. Politicians proposed or supported amendments to the Constitution to protect the Founding Fathers’ original intent in governing ‘the people’. In PART 1 of OLIGARCHY: AN AMERICAN FEAR DURING SECESSION WINTER, I examine a legislative effort known as the “Crittenden Compromise” to preserve how States calculated their number of representatives in the federal House of Representatives to prevent an oligarchy from happening or at the very least a preceded fear of one developing.


Power in the hands of a few, not necessarily elected.


Congress moved quickly to preserve its power and pacify the South. In December 1860, after South Carolina seceded from the Union, the United States Senate quickly formed the “Committee of Thirteen”. The Committee investigated legislative measures to preserve the Union, fearing additional states would leave the Union. “Thirteen” represents the number of Senators left after South Carolina had seceded. The House of Representatives formed the “Committee of Thirty-three”, with the same objective. The committee named “Thirty-Three” for the number of States in the Union at the time. Each committee proposed amendments and resolutions from December 1860 to February 1861.


One of the most popular proposed amendments came from U. S. Senator John Crittenden of Kentucky otherwise known in history as ‘Crittenden’s Compromise‘. Too often, historians focus on the Compromise’s feature of protecting slavery forever in Territories of the United States, South of 36° 30′ parallel. They ignore the Compromise included protection for the ‘Rule of Representation’ found in Article 1, Clause 2, Section 3 of the Constitution. The rule determines how many representatives a State receives in the Federal House of Representatives and slaves factored into the equation.

If Republicans abolished slavery, what would their representation look like in the House? Would Republicans do away with or alter the Three-Fifths Clause? Would slaves be given full representation as some Americans feared? I will examine these questions in another fact check in the oligarchy series.

On December 18, 1860, on the floor of the United States Senate, Crittenden made the intentions of his proposed amendments known:

SOURCE: Clarksville Chronicle – Clarksville, Tennessee – January 4, 1861, PHOTO SOURCE: MATHEW BRADY


On December 28, 1860, Republicans in the Senate Committee of Thirteen blocked Crittenden’s proposal. Why? The Compromise recognized and protected slavery South of the 36° 30′ parallel in the territories of the United States. Any expansion of slavery went against the anti-slavery Republican ideology of the day. Although, the Republican Party had no problem with slavery in any State with an existing slave code with the Corwin Amendment. On January 16, 1861, when Crittenden brought up his compromise on the Senate floor, Republicans killed the legislation for a second time.

SOURCE: Nashville Union and American – Nashville, TN – December 28, 1860 – Page 2“Mr. Crittenden’s Propositions Rejected”


Even though Crittenden’s bill was defeated in the US Senate in January, the States resurrected it at the Washington Peace Conference in February 1861. Only this time, the delegates removed “Rule of Representation” language from the bill and specified mentioned Article 1, Section 2, Clause 3 of the Constitution directly. Section Six of the proposed 13th Amendment by the States protected the ‘Rule of Representation’ at that Federal level using the following language: “.. shall not be amended or abolished without the consent of the States.”

Also, Section One of the proposed Washington Conference amendment refers to the 3/5s Clause, directly, by the language used. It describes the conditions of how a Territory can apply for Statehood: “the population requisite for a member of Congress”; That requisite is found under Article 1, Section 2, Clause 3 of the United States Constitution. In his book, States’ Rights and the Union – Imperium in Imperio, 1776-1876, Forrest McDonald addresses this.

The States in attendance, twenty-one in all, favored Crittenden’s plan which included perpetuating the Three-Fifths Clause in the Constitution. Kentucky Senator James Guthrie submitted Crittenden’s Compromise to the Committee of the Convention; It passed 12 – 9. Again, the United States Senate rejected Crittenden’s Compromise by a vote of 28-7 and never came to a vote in the federal House of Representatives.

Article V

Where the States at the Washington Conference got it wrong was not planning to apply for an Article V Convention of States as a constitutional amendment tool. Instead, they opted to come together at the invitation of the State of Virginia and propose amendments for Congress to consider passing. Besides, the States didn’t have the required 2/3s of States in attendance to use Article V as a constitutional amending convention. Enacting an Article V convention without the required 2/3s of States in attendance would have turned Article V into a glorified invitation to a party, much like Virginia’s invitation.

The Union numbered 33 States in 1861. 2/3s of 33 is 22. They had 21 in attendance. One more additional State and Congress would have been required to instruct the States on how to ratify Crittenden’s Compromise. Instead, Congress killed it. But, even if the States had the required 22 there would have been another obstacle: The State Legislatures.


According to the Detroit Free Press, on December 1, 1860, an article entitled, “The Meeting of Congress” on page 2, discusses proposing Constitutional amendments to pacify the South. The writer brings up Article V as the tool to accomplish the outcome and its roadblocks. What roadblocks? The Republican-controlled State legislatures. The State legislatures would be the ones responsible for ratifying any proposed amendments if specified by Congress. According to the writer, “.. the Republicans have more than one-third of the Senate and that they virtually control the House, and that in one-half the States they have the legislative power, environs this and every other proposed course of procedure with difficulties seemingly almost insurmountable.”

Calling an Article V Amending Convention of States wouldn’t be in the best interests of Republication-controlled legislatures. Nor ratifying any proposed amendments contrary to their political ideology. An Article V Amending Convention of States could open the door to expanding slavery in the Territories of the United States. It might possibly expand its protection on a federal level. This is an exciting rabbit hole explored possibly in another future fact check.


Crittenden wanted to preserve the Union and the security it brought to ‘the people’. Protecting ‘the people’s’ sense of welfare meant preserving their form of government. This meant rendering ‘unalterable’ the people’s ‘rule of representation’ or the Three-Fifths Clause in the Constitution of the United States. The fact that Crittenden specifies the Clause is evidenced enough of ‘the people’s’ fear of being ruled by a few, either in Washington or elsewhere. I will explore the people’s fears in the future part of this series.

Lastly, ensuring ‘the people’s’ sense of welfare drove the Confederate Fathers to include the Three-Fifths Clause in the Final Constitution of the Confederate States. They wanted to ease ‘the people’s’ fear an oligarchy had not formed in Montgomery.  Upon agreeing upon a Federalist form of government and a Constitution like the old one, its leadership ventured out to proclaim their success and calm down the fears of the people. In March 1861, Vice President Stephens made a series of stops through the South to rally support for the new government, including Savannah, Georgia. 

After the war from his prison cell at Fort Warren, Stephens stated in his Savannah speech, that the ‘status’ of the ‘African race amongst us’ had not changed in the ‘new Constitution from the old’.  In using the word ‘status’, Stephens referred specifically to the Three-Fifths Clause.  Nowhere else in the Constitution of the United States does it define a slave’s status other than Article 1, Section 2, Clause 3 or specifically as ‘three-fifths of all other Persons.’  Stephens reassured the American people the ‘Rule of Representation’ had not been changed and kept in the new Constitution of the Confederacy of Southern States.

What were the United States Senator Andrew Johnson’s feelings on the subject during this time?



Under Section 107 of the Copyright Act 1976, allowance is made for “fair user” for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of ‘fair use’.