Between December 1860 and February 1861 or Secession Winter, seven states left the Union. Those against secession thought Southern leaders intended to create an oligarchy or monarchy. The people asked what would the character of the government look like. Would it look like the ‘Old Constitution’ of 1789? ‘The people’ were frightened, including former Governor Neil Brown of Tennessee.

The Crittenden Compromise

During Secession Winter, ‘the people’s fear pushed politicians to back legislation to Federally protect the 3/5s Clause, one of the Ratios of Representation found under Article 1, Section 2, Clause 3 in the US Constitution, otherwise known as the Rule of Representation. One such proposed Constitutional amendment was the ‘Crittenden Compromise’ in December 1860. The bill for the ‘Compromise’ failed to pass in the US Senate. At the Washington Peace Conference, ‘Crittenden’s Compromise‘ passed the Convention of States committee and sent it back to the US Senate. The US Senate, again, voted it down in February 1861.

The Montgomery Convention

While the States met at the Washington Peace Conference, secessionists met in Montgomery, Alabama to create a new confederacy of States. On March 11th, 1861, the Provisional Congress of the Confederate States ratified its new Constitution. The telegraph carried its character to ‘the people’ of the world. The new government modeled the “Constitution of the United States” based on the idea of federalism with three branches, Executive, Judicial, and Legislative. Although, the new compact had some marked differences from the former which this article won’t address but maintained the Rule of Representation from the “Old Constitution”.

THE RULE OF REPRESENTATION FROM THE “OLD CONSTITUTION”

Its language reads as follows from Article 1, Section 2, Clause 3 of the Constitution of 1787:

“Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to 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. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts – eight, Rhode Island and Providence Plantations – one, Connecticut – five, New York – six, New Jersey – four, Pennsylvania – eight, Delaware – one, Maryland – six, Virginia – ten, North Carolina – five, South Carolina – five, and Georgia – three.“

There are two Ratios of Representation, within the Rule. The first is the ‘Three-Fifths Clause. The Second describes the number of constituents to one representative in the Federal House of Representatives or the Ratio of Constituency.

THE ARTICLE’S PURPOSE

Article 1, Section 2, Clause 3’s purpose is to determine a State’s Congressional representation in the federal House of Representatives through an Enumeration or Census, and direct taxation burden, when levied by the ‘general government’. Lastly, to instruct the ‘general government’ when to hold an Enumeration or Census of the population of the United States which is every 10 years.

SOURCE: https://constitution.congress.gov/browse/article-1/section-2/clause-3/

THE RATIOS WITHIN THE RULE OF REPRESENTATION

There are, in fact, TWO ratios serving different purposes within the “Rule of Representation”, even though much of the literature of the time refers to a single ratio, depending on the focus of the ratio being discussed. The first ratio is the number of constituents to one representative or the “Ratio of Constituency” as I like to call it to keep things straight for a novice. The “Ratio of Constituency” was used to calculate the number of Congressmen a State receives in the federal House of Representatives. Even though the Constitution of 1787 expressed the first ratio as 30,000 constituents to one representative, Congress changed it to 33,000 in 1792 under the first Enumeration or Census. Over the following decades, Congress changed the number of constituents to one representative several times. As a result, a State’s number of representatives in the Federal House would either increase or decrease. Initially, any fractions from the result were disregarded. In 1842, Congress gave States with fractional results equal to or greater than the ratio, or .5, an additional representative. In 1850, Congress really made the math interesting by setting the number of representatives in the House to 233. The House number of 233 representatives would be ‘apportioned’ or divided into the total population of the United States to calculate the “Ratio of Representation” of the constituency. “Ratio of Representation” of the constituency is just another way to call the “Ratio of Constituency”. “The Ratio of Constituency” was divided into a State’s population to determine the number of representatives it received in the Federal House of Representatives, including an additional representative if the resulting fraction was equal to or greater than the ratio. Crazy. I know.

The second ratio is the number of slaves, or five, which equals three free persons for the purposes of population count during an Emuneration or Census. Once the number of slaves was known, their number was added to the free persons’ count and divided by the constituent ratio to calculate the number of seats a State received in the federal House of Representatives.

THE THREE-FIFTH’S CLAUSE

Article 1, Section 2, Clause 3 is referred to as the ‘Three-Fifth’s Clause’ or the ‘Three-Fifth’s Compromise’ because of its 3/5s ratio component in factoring the slave population in calculating the population of a State. Each State’s population is determined by adding free persons, persons bound to service for a term of years (indentured servants), and three-fifths of all other persons (or slaves), excluding Indians. “Three-fifths of all other persons” mentioned in the article, means Congress counts three out of five slaves, as free inhabitants, as a factor in calculating a State’s population. With the end of the War of 1861, the ‘Three-Fifths Compromise’ was changed by the United States Congress to reflect all people.

SOMETHING LEFT OUT

What the Article fails to say is that the Ratio of Constituency or 30,000, as expressed in the Constitution of 1787, is divided into the State’s population to calculate the number of representatives it would receive in the Federal House of Representatives. It’s assumed. The Founding Fathers were famous for not showing the long math to an answer. Everything else is pretty self-explanatory in this Article.

IMPORTANT NOTE:

Do not confuse the Ratio of Constituency with the “Three-Fifth’s Clause” for slave population computation. They serve different functions in Article 1, Section 2, Clause 3; Although both are ratios.

CORNERSTONE

It’s March 18, 1861. On his way to Richmond, Confederate Vice President Stephens stops off in Savannah, Georgia to promote the new government. It’s half past seven o’clock at the Athenaeum. Before a packed house, Stephens delivers one of the most controversial speeches of the 20th Century. Some historians call it “The Cornerstone Speech”. Besides making some interesting comments on the foundations of the new government or believed to have, Vice President Stephens makes an interesting comparison. According to the Savannah Republican, Stephens points out that the Permanent Constitution of the Confederate States contains the same rights and principles as the Constitution of the United States.

If Stephens made this comment, why did he? Why was it important for Vice President Stephens to make this point before the people of the South? Americans were suspicious of the secessionist leadership. By the time they met in Montgomery to create a new compact, seven states had left the Union. They left through Conventions by popular vote but without ratifying the Convention’s results through a DIRECT popular vote by ‘the people’, except for Texas, which did both. ‘The people’ wondered what the secessionists intended to do with their power. Did they intend to install a monarchy or oligarchy? Did they intend to give full representation to the slave and alter the Ratio of Representation changing how the people were represented in the new Confederate Federal House of Representatives? Did they intend to burden the people with taxes to maintain and grow the new government? Would ‘the people’ be represented differently in the Confederacy? It was Stephens’s job to calm the fears of Americans. He reassured them Confederate leadership maintained a federalist style of government in the new Constitution of the Southern Republic of States.

STEPHENS’ ALLEGED CLAIM REPRESENTS THE VALUES OF ALL CONFEDERATE SOLDIERS

Many modern-day socialists/abolitionists claim Stephens’ alleged comments reflect the values of what Southerners fought for during the war. That claim is easily defeated by reviewing the Preamble of the Final Constitution of the Confederate States. The job of ANY PREAMBLE is to express the document’s intent. It says:

We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquility, and secure the blessings of liberty to ourselves and our posterity invoking the favor and guidance of Almighty God do ordain and establish this Constitution for the Confederate States of America.

It doesn’t mention slavery, does it? It mentions “We, the people“. The people, through their representatives, expressed their intent in establishing a new government through their State institutions.

The Confederacy Formed Over Slavery?

Another modern-day claim socialists/abolitionists make is the Confederacy was formed over slavery. This claim is also easily defeated by reviewing the Final Constitution of the Confederate States. The Preamble mentions nothing about slavery behind the intent of the new government by the Confederate Founding Fathers. Also, there is nothing in the document, itself, where it restricts FREE STATES or STATES with NO SLAVE CODES to join the new Southern Confederacy of States.

WHAT COMPARISON DID VICE PRESIDENT STEPHENS MAKE ABOUT THE “NEW” AND “OLD CONSTITUTION”?

“The new Constitution or form of Government, constitutes the subject to which your attention will be partly invited. In reference to it, I make this first general remark. It amply secures all our ancient rights, franchises and privileges. All the great principles of Magna Charta are retained in it. No citizen is deprived of his life, liberty or property, but by the judgement of his peers, under the laws of the land. The great principle of religious liberty, which was the honor and pride of the Old Constitution, is still maintained and secured. All the essentials of the old Constitution, which have endeared into the hearts and the American people, have been preserved and perpetuated.”

SOURCE: The Charleston Daily Courier – Charleston, SC – March 25, 1861 – Page 4 – Savannah Republican

NOTE: Vice President Stephens refers to the “Constitution of the United States” as the “Old Constitution”.

“ALL THE ESSENTIALS”

What was Vice President Stephens referring to when he said, “All the essentials of the old Constitution, which have endeared into the hearts and the American people, have been preserved and perpetuated.“?

One of those essentials ‘preserved’ and ‘perpetuated’ in the Final Constitution of the Confederate States was Article 1, Section 2, Clause 3 containing the Ratios of Representation.

What proof do I offer? The people’s representatives of twenty-one States at the Washington Peace Conference approved it in a bill to be submitted to Congress in what would have become the 13th Amendment.

IN CONCLUSION

Unquestionably, Americans feared an oligarchy; the people feared being under-represented. They feared additional taxation. They feared having their political power taken from them by the Confederate leadership.

How did the Confederate founders plan to solve the problem? Install Article 1, Section 2, Clause 3, or the Ratios of Representation, from the “Old Constitution” in the new compact. The States, with no or smaller slave populations, would not be misrepresented in the Federal House of Representatives in the Confederacy.

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 ratio.  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.’ 

What were Stephens’s personal feelings and thoughts on the institution of slavery? I will address those in another article.

The people needed reassurance and Vice President Stephens provided that in his speech in Savannah. He reassured the American people, especially those in the Border States, of the federal character of the Confederate government, and that they would be represented no differently in the new government from that “Old Constitution” of the United States.

THIS ARTICLE WAS WRITTEN IN MEMORY OF DORIS NEEDHAM

WHY WRITE THIS ARTICLE?

It provides additional context to Confederate Vice President Alexander Stephens’s “Cornerstone” speech in March 1861.

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