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Three Fifths of All Other Persons

My review of the John Quincy Adams diaries generated some discussion of Adams’ characterization of the Three-Fifths Clause and his bold predictions about the direction the slavery struggle would take. Before responding to those welcome inquiries, it might be best to review the clause itself, since it is so often misunderstood. The persistent canard that the original Constitution regarded blacks as only “three-fifths human” must be refuted with the same persistence.

A look at the text clears up the worst of the misconceptions. The clause sets the rule for representation in the House, basing it upon a formula (the “federal ratio”) for calculating the respective populations of the states. The first thing to note is that all those counted are referred to as “persons.” However, “free Persons” and “all other Persons” (that is, slaves) are not tallied equally. Free persons are counted without regard to sex, age, race, or class. Women and men, girls and boys, blacks and whites, whether indentured servants or not, are counted in full.

According to the first census of 1790, 8 percent of the black population were free, a percentage that slowly ticked up to 10 percent by 1860. All these free black persons figured in the rule of representation on the same terms as whites. The discrimination made by the text is not race-based but condition-based. Of course, it is true that by this point in the nation’s history, all slaves were black—or at least they were so called, regardless of the actual degree of (involuntary) race mixing—even if not all blacks were slaves.

The real question, then, becomes: why were black slaves discounted by two-fifths?

Here, a moment’s reflection on the strategies of the pro-and anti-slavery delegates to the Constitutional Convention provides the answer. Which group wanted slaves to count in full? Pro-slavery delegates wanted slaves to be fully counted since they wanted to boost their pro-slavery contingent in Congress. Those delegates who were most anti-slavery held that slaves should not be counted at all in the rule of representation. It mocked the very principle of representation to think that the human chattels of the slaveholders should be used to place more slaveholders in government. The battle between these positions (which involved other permutations about the role of wealth and the respective productivity of free and slave labor) yielded the compromise of counting slaves fractionally.

Paul Seaton brought up Robert Goldwin’s fine 1971 essay, “Why Blacks, Women, and Jews Are Not Mentioned in the Constitution.” In showing that “the three-fifths clause had nothing at all to do with measuring the human worth of blacks” but was instead solely about “voting power in Congress,” Goldwin spelled out the concrete effects of the compromise. If slaves had been wholly excluded from the count, as anti-slavery forces wanted, the slave states would have had 41 percent of the seats in the House. If slaves had been counted on a par with free inhabitants, as the pro-slavery forces wanted, the slave states would have been at 50 percent. The Three-Fifths Compromise put them at 47 percent. The conclusion drawn by Goldwin was that the resulting Southern influence was “not negligible, but still a minority likely to be outvoted on slavery issues.”[1]

In view of these statistics, Paul wonders whether Adams was incorrect in claiming that “this slave representation has governed the Union.” After all, the other side, led by John C. Calhoun, complained just as bitterly about a growing Northern ascendency. Keep in mind that, since the apportionment of seats in the House followed the census returns, there was nothing fixed or guaranteed about the relative weight of North and South other than the rule for tallying up the population. And even that could be amended. The legislature of Massachusetts in fact made three attempts (in 1804, 1815, and 1843) to circulate a proposed constitutional amendment that would have based representation solely on free inhabitants. It was roundly rejected by the other states.

At the time of the Founding, it was expected that population growth would occur quickly in the South and Southwest. As luck (or the natural superiority of free labor) would have it, the North and Northwest expanded more rapidly, with the result that, even with the Three-Fifths Clause, the House of Representatives was generally the least pro-slavery part of the federal government. Measures like the 1819 Tallmadge Amendment (excluding slavery from Missouri) and the 1846 Wilmot Proviso (banning slavery in all the territory gained from Mexico) passed the House, but never got through the Senate (where a rough equality between free and slaves states prevailed).

Nonetheless, the effects of the slave bonus were felt. As Abraham Lincoln pointed out, the Kansas-Nebraska Act of 1854 was carried by those 20 additional slave-state representatives in the House. His Peoria speech showed in mathematical detail the manifest unfairness by which every white man in South Carolina had double the voting power of every white man in the North. Maine, with more than twice as many free inhabitants as South Carolina, yet had exactly the same number of House members.

Moreover, the institutional effects of the Three-Fifths Clause were not limited to that body, but extended to the Electoral College, and thus spread throughout the executive and judicial branches (through the President’s appointment power). By some calculations, it was the bounty of the slave representation that secured Jefferson’s election in 1800, with profound and perhaps incalculable consequences.[2] Certainly, it is true that, over time, the federal system skewed slaveward.

Just as pernicious was that some of the Southern states adopted the three-fifths rule for their state legislatures. (Louisiana went further, counting slaves in full.) Slave populations were often distributed very unevenly across counties—think of the situation in Virginia, with slave-dense plantations in the east and almost no slaves in the west (today’s West Virginia). As a result, non-slaveholding “poor” whites, despite their majority status within these states, lost political power to the oligarchic minority of slaveholders.[3]

Yet, when Adams traces so many rippling, ill effects to the Three-Fifths Clause, his argument is not exclusively numerical. Perhaps more fundamentally, it is psychological. According to Adams, slavery “taints the very sources of moral principle,” perverting both reason and sentiment. The slaveholders display “pride and vainglory in their condition of masterdom. . . . They look down upon the simplicity of a Yankee’s manners, because he has no habits of overbearing like theirs and cannot treat negroes like dogs.” The Three-Fifths Clause compounds this tyrannical tendency by giving official recognition to the master’s arrogation: “masters are privileged with nearly a double share of representation.” For Adams, the Bible foretold the result: “Benjamin portioned above his brethren has ravined as a wolf. In the morning he has devoured the prey, and at night he has divided the spoil.”

Thus Missouri, after gaining statehood in 1820 with slavery intact, immediately grasped for more by drafting a new state constitution that banned free blacks from the state—a measure “directly repugnant to the rights reserved to every citizen of the Union in the Constitution of the United States.” In his diary entry for November 29, 1820, Adams argued that Massachusetts would be justified in retaliating by declaring the white citizens of Missouri “aliens within the Commonwealth of Massachusetts, not entitled to claim or enjoy within the same any right or privilege of a citizen of the United States.” Massachusetts might also refuse to return fugitive slaves to Missouri claimants. “All which I would do,” Adams says, “not to violate, but to redeem from violation, the Constitution of the United States.”

If that article of the Missouri constitution were permitted to stand,

it would change the terms of the federal compact—change its terms by robbing thousands of citizens of their rights—and what citizens, the poor, the unfortunate, the helpless, already cursed by the mere color of their skin, already doomed . . . to drudge in the lowest offices of society . . . this barbarous article deprives them of the little remnant of right yet left them—their rights as citizens and as men.

The habit of domestic despotism was spilling over into the public sphere: “The slave-drivers, as usual, whenever this topic is brought up, bluster and bully, talk of the white slaves of the Eastern States, and the dissolution of the Union, and oceans of blood; and the Northern men, as usual, pocket all this hectoring, sit down in quiet, and submit to the slave-scourging republicanism of the planters.” Because of his own fears for the Union, Adams came around to favoring the Missouri compromise, even though it wasn’t a true compromise since “the serviles have the substance and the liberals the shadow.” But he worried about that choice, confessing to his diary that it might have been “a wiser as well as a bolder course [for the free states] to have persisted in the restriction upon Missouri.” If the conflict were indeed irrepressible, then time only allowed the disorder to grow.

Fred Baumann inquired as to the details of Adams’ prophecy. If the Union fell apart, did he expect slavery to remain intact in a separate Southern confederation?

In a number of entries, Adams sketched his vision of the likeliest scenario. Never did he think an amicable divorce between the free and slave states was possible. Dissolution would bring civil war (between the sections) and servile war (slave insurrections and race war in the South—to see why, imagine what would happen once an alliance of free states refused to return fugitive slaves: widespread desertions by slaves, leading to much harsher treatment, triggering slave rebellions). Adams was convinced that the death of slavery would follow. While fully granting that under normal circumstances the federal government had no authority over slavery in the existing slave states, Adams also hypothesized that in time of civil or servile war, slaves could be freed by federal action on grounds of military necessity.

Here is another visionary passage, not as famous as the one that recounts his conversation with John C. Calhoun, but equally spine-tingling in its accuracy:

If slavery be the destined sword in the hand of the destroying angel which is to sever the ties of this Union, the same sword will cut in sunder the bonds of slavery itself. . . . It seems to me that its result must be the extirpation of slavery from this whole continent; and, calamitous and desolating as this course of events in its progress must be, so glorious would be its final issue, that, as God shall judge me, I dare not say that it is not to be desired.

Glimmers of the 1865 Second Inaugural.

[1] For these calculations, Goldwin relied on William Wiecek who in turn relied on Donald L. Robinson, Slavery in the Structure of American Politics, 1765-1820 (Harcourt Brace Jovanovich, 1971), p. 180.

[2] As Christopher Wolfe points out in his comment appended to my review, there is dispute among the historians about the systemic effects of the Three-Fifths Clause. For details on some of the competing numbers-crunching scenarios see Garry Wills’s “Negro President”: Jefferson and the Slave Power (2003), Don E. Fehrenbacher’s The Slaveholding Republic (2001), and Lance Banning’s review of Wills, entitled “Three-Fifths Historian,” in the Fall 2004 issue of the Claremont Review of Books.

[3] See the landmark new book by Forrest A. Nabors, From Oligarchy to Republicanism: The Great Task of Reconstruction.

Reader Discussion

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on February 05, 2018 at 07:32:23 am

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Three Fifths of All Other Persons | Top 100 Blog Review
on February 05, 2018 at 12:15:32 pm

I have no idea why the election of 1800 and Jefferson has any part in this discussion of the 3/5 rule.

Slavery simply was not an issue in the election of 1800. If it had been an issue, then the fact that Adams and his running mate, Charles C. Pinckney, represented the Federalist's policy of running a northern elitist dedicated to trade and a strong central government with a southern planter dedicated to preserving slavery would be conclusive proof that the party of Hamilton was also the party of slavery.

Also, all of the authorities referred to seem to be oblivious to the fact that the period between 1820-54 was the Golden Age of the Senate. Except at the margins, the House was irrelevant because every Congress avoided levying direct taxes like the plague because all such bills had to originate in the House.

Also, the moralistic historical revisionists ignore the fact that almost all of the US's foreign exchange prior to 1860 was derived from the sale of agricultural commodities (chiefly tobacco, cotton, indigo and rice) that relied upon slave labor. The result was that by 1840, the state of the law was such that any state could enslave a person and thereafter no state could set that person free.

This was demonstrated in Prigg v. Pennsylvania (1843). In that case a woman was born a slave under Maryland law. She escaped to Pennsylvania and had a child in Pennsylvania. Both the mother and the child were free under Pennsylvania law but a slave under Maryland law. The result of Story's decision was that both were returned to Maryland under Federal law. All Story could manage was to hold that the Commonwealth of Pennsylvania did not have to actively assist slave catchers execute their Federal warrants. He invited Congress to correct that problem with appropriate legislation. The result ws the Fugitive Slave Act of 1852.

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EK
on February 05, 2018 at 13:09:50 pm

" By some calculations, it was the bounty of the slave representation that secured Jefferson’s election in 1800, with profound and perhaps incalculable consequences."

I am disappointed by this statement. It may be read to say both nothing and everything.
What precisely is Ms Schaub intimating? Is one to believe that the south viewed Jefferson as "slave-friendly"? Is one to take the corollary of that to be that the Federalists were not (this is rebutted by EK's comments on Pinckney above).

Are we to see evidence of some grand "slave trust" machination to assure the election of Jefferson.

OR

Are we to take the simplest (strictest?) import of the words of the comment - that the simple math of the previously agreed upon 3/5 population formula inevitably resulted in a greater number of Electors (than the 0/5's version) and that the south simply preferred Jefferson who may be rightfully termed an "agrarian". the south'e economy being almost exclusively based upon agriculture, it could be expected to support a fellow agrarian.

I did appreciate the information on the "in-state" 3/5's compromises as I had not previously been aware of that.

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gabe
on February 05, 2018 at 14:33:17 pm

"At the time of the Founding, it was expected that population growth would occur quickly in the South and Southwest. As luck (or the natural superiority of free labor) would have it, the North and Northwest expanded more rapidly, with the result that, even with the Three-Fifths Clause, the House of Representatives was generally the least pro-slavery part of the federal government."

As luck would have it, indeed. But do we know why, in light of the Founding generation's expectations, the Framers incorporated the Three-Fifths Clause into the Constitution? If we are to believe, as Lincoln does, that the Constitution puts slavery "in the course of ultimate extinction," these two ideas are in tension. How can the Constitution inhibit slavery's spread if the Founders conceded to the South a provision that they fully expected to give it, if future population expectations were accurate, a majority in the House of Representatives?

Mirroring the projected growth in population in the South, I imagine it was thought many of the argument new states added to the Union (save for those formed out of the Louisiana Territory) were to be slave states. So the divided government argument can't be correct, since the Senate likely would be a bastion of slave-holding interests, and the Electoral College, as you noted, leaned more toward Democrats because of the Three-Fifths Clause.

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Brayden Smith
on February 05, 2018 at 14:58:27 pm

In 1789, the Revolutionary Generation did not, and could not, expect that the United States would easily expand beyond the line of the Mississippi River without a war with Spain and France. At best, the Revolutionary Generation imagined expansion would towards southern Canada and the Maritimes. And they were very mistaken about that.

The Louisiana Purchase was a bolt out of the blue and a complete game changer. Something Jefferson took advantage of but certainly not something that was anticipated. That's the problem with most of Ms Schaub's essentially "nunc pro tunc" arguments.

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EK
on February 05, 2018 at 15:42:45 pm

And yet, a review of US Census data from 1790 to 1860 does not show the "surge" in southern population relative to population growth in the North. (Note: It was unclear how early census "actually" handled the 3/5th's issue).

Question.

How did the prohibition on the Slave Trade during 1808 affect the population of the south. some cursory review in the past indicates that there was a "buildup" prior to that date and for some half a decade later. Additional population in slave growth had to be from domestic sources after that - and there were some natual limits to that growth.

anyone have any ideas on that?

EK and others are right about the crucial role of the Senate in sustaining the Slave Power and the addition of new States carved out of Jefferon,s little adventure.

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gabe
on February 05, 2018 at 15:59:34 pm

Yeah, Fredrick Douglass's testimony on the development of the internal slave trade, which began with practice of northern states like New York of abolishing slavery but also allowing a period of grace during which northern slave owners could liquidate their investment by sell their slaves south.

This was a horrible period in our history. But all of the slave owners were wealthy Whigs and the present fashion of blaming Jeffersonian democratic-republicans for the deeds of the Federalist Whigs is something we are all familiar with.

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EK
on February 05, 2018 at 18:00:50 pm

They may not have expected expansion without war, but it's not out of the question that they would have fought to gain territory. The zeal for which the U.S. fought for Canadian territory around the War of 1812 shows, I think, that the country wasn't dovish. And the U..S.'s continued attempts to control some of the islands in the Caribbean, plus its takeover of Florida, make it convincing that expansion could have been southward. I'm welcome to convincing though.

As for her supposed mischaracterization of the 1800 election, while the Louisiana Purchase, and in particular its favorable terms, couldn't have been anticipated, it seems apparent that the easiest and most capacious direction to expand was westward. Because "west" isn't "north" or "south," the slave interest would have to be divided with the antislavery interest. That could be an argument in her favor, but I suppose it's still not an unfolding of history that one could bank on.

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Brayden Smith
on February 05, 2018 at 19:21:12 pm

The fact is, when it comes to personhood, one cannot compromise the essence of personhood without denying the very essence of being in essence, a beloved son or daughter, brother or sister, husband or wife, father or mother. 100 percent of persons are beloved sons and daughters; being a human person is not a matter of degree.

Slavery was first and foremost, unconstitutional, because it denied the personhood of a beloved son or daughter.

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Nancy
on February 05, 2018 at 19:27:01 pm

Gabe, perhaps this will answer your question:

https://constitution.laws.com/three-fifths-compromise

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Nancy
on February 05, 2018 at 19:49:48 pm

Gabe, yes, she's piking up on Garry Wills' observation in the book of his whose review she cites. I suggested 35 of an Historian for the review. It's simply that the Southern States had an electoral college advantage due to their slave edge. It's not that slavery was an issue, as EK above imputes to her.

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Ken Masugi
on February 05, 2018 at 21:42:05 pm

People often refer to the founders, a broad term. I think of the signers of the 1787 draft constitution as the originalists. The first Congress was comprised of politicians who knew no better than to restore Blackstone and self-appointed legislative "deity."

They scheduled end purchasing Africa's commodity, Africans, twenty years after ratification. With a slave-states ratio of 8:5, they could neither negotiate abolition of slavery nor devise its economic feasibility. Therefore, they left abolition to the future.

The required nine states ratified the draft constitution on June 21, 1788, establishing the USA. The nine hoped remaining four free and independent states would join the USA. One did, in time for operations, which began March 4, 1789. By March-April, erroneous governance "under God" had been restored.

Sixty-four years after the signer's USA had been ratified, Frederick Douglass decried the wanton internal slave trade that was underway. However, with help from black scholars, he understood the draft constitution. He stated, ". . . interpreted, as it ought to be interpreted, the Constitution is a glorious liberty document. Read its preamble, consider its purposes. Is slavery among them? Is it at the gate way? or is it in the temple? it is neither. "

Perhaps the 3/5 rule should be resurrected as a means of empowering a civic people in competition with dissidents to human justice. Beyond adult citizenship, perhaps require a potential voter to paraphrase the preamble in the spirit of the original but worded for his or her lifestyle and sign a commitment to First do no harm respecting the agreement he or she offers other citizens.

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Phillip Beaver
on February 05, 2018 at 21:45:19 pm

Sorry. In the second paragraph, "They" should be "The originalists"

Also, the last paragraph should be led by BTW, to indicate that it is a side thought.

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Phillip Beaver
on February 06, 2018 at 12:07:40 pm

If you read history forward from the 1763 Treaty of Paris, which ended the Seven Years War, and the associated Proclamation Line of 1763 I think that my statement that at the time of the ratification of the Constitution most Americans did expect that the US's natural boundaries would be the lines of the Mississippi and St. Lawrence Rivers.

As it concerned the Americans, the Proclamation Line followed the watershed of the Appalachian mountains and the St. Lawrence River. France ceded its territory west of the Appalachians and north of the St. Lawrence watershed to Great Britain. A year earlier, France had ceded its claims to the Louisiana territory to Spain. The British imagined an Indian Reserve west of the Appalachians, south of the Ohio River and east of the Mississippi River. This was very unpopular in the colonies as was the creation of Quebec north of the Ohio and St Lawrence Rivers.

In the 1763 Treaty of Paris, Spain ceded Florida to Britain but retained Louisiana. (France had ceded Louisiana to Spain in 1762 and regained Louisiana from Spain in 1800).

The boundary disputes of the period 1754-66 between the Americans, French, Spanish and Indians is well covered in Fred Anderson's "The Crucible of War" (2000).

In the 1783 Treaty of Paris, which ended the Revolutionary War, Britain ceded its possessions west of the Proclamation Line of 1763 and south of the Great Lakes and St. Lawrence River to the US. It ceded Florida back to Spain. The treaty more than doubled the size of the American colonies as they stood in 1774. Of course the territory cede by Britain to the US was occupied by large and powerful Indian tribes and confederations who dislike the Americans more than they did the British and French. Consolidating the gains from the 1783 Treaty of Paris would be the work of a generation.

I can honestly say I have not read anything from the period 1763 to 1803 that suggests a national policy contemplating expansion west of the Mississippi River. Notions of expansion south to Cuba and the Caribbean came later than that; my impression is the 1840-50s. But there was a provision in the Articles of Confederation that allowed for parts of Canada to join the Confederation.

After 1783, the state militias stood down and the standing army was reduced to an artillery battery at West Point and one regiment of infantry in western Pennsylvania. After 1791, the regular army was increased to about 5000. The size of the Army was not increased beyond that until the War of 1812. The slave states were looking forward to expanding west into what became Alabama, Mississippi and Tennessee and the free states were looking forward to expanding into what became Ohio, Indiana and Illinois. Both the free and slave states had their eyes on Kentucky.

One has to be careful not let our knowledge of what happened later distort our understanding of the motives and aims of the people who were living in the present in the last two decades of the 18th Century.

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EK
on February 06, 2018 at 21:08:20 pm

Which policy is more liberal? Accounting “all other persons” as 0 for the purposes of apportioning representation? Or accounting them equal to “free persons”? When Calhounite statesmen later take over the South from their more liberal grandsires, they and their proslavery policy would be granted more representation in the federal government to advance oligarchy and slavery in America over moribund abolition and republicanism, if you reckon each of “all other persons” a 1.

But why accede to counting “all other persons” at all? Why agree to the extenuation of the slave trade? Because SC & GA would disunite. So what?

When harried by delegates to the Virginia ratifying convention who did wish to limit the growth of slavery, and were willing to let SC & GA leave the Union, Madison explained, “Great as the evil is, a dismemberment of the Union would be worse. If those states should disunite from the other states for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers” (Elliot’s Debates, v. 3, p. 454.).

Madison’s warning was not puffery. Another section from JQA’s recorded conversation with Calhoun in 1820 goes like this:

Feb. 24, 1820 – “I had some conversation with Calhoun on the slave question pending in Congress. He said he did not think it would produce a dissolution of the Union, but, if it should, the South would be from necessity compelled to form an alliance, offensive and defensive, with Great Britain. I said that would be returning to the colonial state. He said, yes, pretty much…” and that “they would find it necessary to make their communities all military.”

What was gained by winning the positive grant of power to Congress to end the slave trade by 1808 in exchange for extending the trade? Leonidas Spratt, delegate the Confederate convention explained, “If the foreign slave trade had never been suppressed, slave society must have triumphed...”. Spratt wanted to resume the project that was blocked by Congress in 1808. In the new-born Confederacy “slaves might be increased to forty millions, without a corresponding increase among the whites” (Southern Literary Messenger, v. 32, Dec., 1861, pp. 412, 417).

What was gained by keeping SC & GA in the Union? Madison in Federalist #43: “Among the advantages of a confederate republic enumerated by Montesquieu, an important one is… Should abuses creep into one part, they are reformed by those that remain sound.”

And that is what the Union did in 1861-1865. Had they reckoned each of “all other persons” a 1 when apportioning representation, the task of the Union might have been more difficult, maybe impossible.

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Forrest Nabors
on December 21, 2019 at 07:29:41 am

One question I want to ask is whether any delegates at the time of the Constitutional Convention wanted only the white population to be counted – so that not only slaves and “Indians not taxed” would be excluded, but also free blacks and “Indians taxed”. Whilst racial hostility was less extreme in the eighteenth century – likely because scientific studies of race were exceedingly limited and of zero interest to most whites in the colonies – and free blacks could vote in some colonies, it was still present and intensified rapidly as the new nations grew.

The actual history of the free black population reveals a sharp increase between 1790 and 1810 that slowed to a trickle due to extreme white hostility and resultant severe restrictions upon free blacks from then until the Civil War due to the growing intransigence of whites toward the existence of free blacks, which I often compare with the Nazis’ attitude towards Germany‘s Jews.

On the western frontier by the 1840s virtually every new state was drafting laws that totally excluded free blacks from even entering, though enforcement proved beyond the capacity of the era’s primitive law enforcement. Under this condition, it is utterly logical that calls for an amendment to base representation upon only white population would have been made in the North and West, but I have never heard of any. Does anyone know of calls to base representation upon only white population?

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Julien Peter Benney

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