Slavery and the Constitution

• Author: John Hope Franklin
• Pages: 2427-2434

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Long before the CONSTITUTIONAL CONVENTION OF 1787 the question of slavery had become the prime concern of many Americans. In the first and second Continental Congresses, the matter arose when several groups of slaves petitioned for their manumission. Nothing came of their pleas, of course. In THOMAS JEFFERSON'S draft of the DECLARATION OF INDEPENDENCE, he accused the king of waging cruel war against human nature itself, "violating its most sacred rights of life and liberty in the persons of a distant people ? captivating and carrying them into slavery in another hemisphere.?" Although slavery existed throughout the English colonies in 1776, the southern slaveholders in Congress forced rejection of this indictment of the king. If they won their independence on the basis of such an argument, they feared that there would no longer be any justification for slavery.

In some colonies the sentiment against slavery grew during the war for Independence; and the eventual use of slaves as soldiers in the war contributed to the feeling that they should be free. As the states gained their independence some prohibited the slave trade. Some went beyond that enacting legislation looking to the abolition of slavery altogether. Pennsylvania and Massachusetts passed such laws in 1780, followed by Connecticut and Rhode Island in 1784, New York in 1785, and New Jersey in 1786. While no states south of Pennsylvania abolished slavery during this period, several enacted laws facilitating manumission by slaveholders.

Meanwhile, the CONTINENTAL CONGRESS began to look at the question of slavery as it undertook to develop a national land policy. When Thomas Jefferson framed the ORDINANCE OF 1784 for the organization of government in the western territory, he included a provision that after the year 1800 there should be no slavery or involuntary servitude in any of the states to be organized. That provision was rejected. The idea persisted, however, that slavery should not be extended indefinitely. In the NORTHWEST ORDINANCE of 1787 Jefferson's language of 1784 was adopted with the caveat that fugitive slaves escaping into the Northwest Territory from one of the original states "may be lawfully reclaimed and conveyed to the person claiming his or her labor or service.?" The Ordinance

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did not apply south of the Ohio River, where slaveholders were more likely to settle than in the Northwest Territory.

It was inevitable that slavery should have been an important consideration at the Constitutional Convention. At a time when slavery was waning in the North, the southern states saw in slavery an increasing source of wealth both in the market value of slaves and in what slaves could produce. An economic interest so important could not be ignored by a convention one of whose major concerns was to protect property and to advance the economic interests of those who were to live within the new frame of government. Although there were numerous points at which the emerging document affected the institution of slavery, four were of prime significance to the future of slavery and, indeed, the fate of the Constitution.

One point had to do with the TAXING POWER of Congress. Southern delegates generally feared that in levying taxes, especially POLL TAXES, the federal government might discriminate against the South in the way it counted slaves. Closely connected with this was the perception that in apportioning representation, the South would suffer from any arrangement that did not recognize and count slaves as people. After considerable debate, some of it acrimonious, a compromise was reached. Direct taxes were to be apportioned among the several states according to population, thus making it impossible to raise a major portion of federal revenue by taxing property that existed only in one section of the country. In determining the basis of taxation and representation, five slaves were to be counted as equal to three free persons. The cryptic language in Article I, section 2, reads: "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 other two points regarding slavery were handled with some dispatch, not because they were unimportant but because they did not come up until late in the session, when the weary delegates were eager to return to their homes. On the slave trade, several southern delegates were uncompromising. While those from Virginia and Maryland appeared to favor a prohibition of the trade, those from South Carolina and Georgia were unalterably opposed to the prohibition. To avoid a rupture between the delegates of the upper South and the North, who favored prohibition, and those of the lower South, the compromise was reached that the slave trade could not be ended before twenty years had elapsed. This language was added in Article II, Section 9: "The Migration or Importation of such Persons as any of the States now shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

Significantly, there was almost no opposition to the proposal that fugitive slaves be returned to their masters. The public obligation to return slaves, which had already been provided for in several Indian treaties between 1781 and 1786, was established in the Northwest Territory in 1787 along with the prohibition of slavery in that region. When the provision came before the Convention in late August, the delegates were in no mood for a protracted debate. The slaveholders had already won such sweeping constitutional recognition of slavery, moreover, that the question of fugitive slaves was something of an anticlimax. Without serious challenge, the provision was inserted in Article IV, Section 2: "No person, held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the party to whom such Service or Labour may be due."

In dealing with slavery the delegates to the Convention made certain, as if out of a sense of guilt or shame, never to use the word "slave" or any of its variations in the Constitution itself. "Three fifths of all other persons," "Persons held to Service or Labour," and "Migration or Importation of Such Persons," were all mere euphemisms. Everyone knew what they meant. They were meant to shield the consciences of the delegates just as the clauses themselves were meant to protect the institution of slavery. In none of the deliberations did the delegates give serious consideration to abolishing slavery, even though slavery made a mockery of freedom, equality, and the rights of man. It did not make a mockery, however, of the rights of property. American independence and the new Constitution had the effect of giving slavery a longer life than it was to have in the British Empire.

It was the business of the Congress to enact legislation to carry out the objectives set forth in the Constitution. As far as slaves were concerned, this meant the enactment of legislation to facilitate the recovery of runaway slaves by their masters. The impetus for legislation came, however, not from concerns about fugitive slaves but in the call for a statute to facilitate the surrender of FUGITIVES FROM JUSTICE. When the governor of Pennsylvania was unable to persuade the governor of Virginia to give up three white men accused of kidnapping a Pennsylvania free Negro, he presented the facts in the case to President GEORGE WASHINGTON. When the President transmitted the matter to Congress, it responded by passing the Fugitive Slave Act of 1793. After dealing with the matter of the surrender of fugitives from justice in the first two sections, the law turned to the rendition of fugitive slaves.

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Under the law a slaveholder could apply to a federal district or circuit judge for a certificate authorizing him to return his slave to the state from which he had fled. This certificate was to be granted after the master had captured his slave, and there were few federal judges at the time; therefore, the master was compelled to go to considerable expense and travel before enjoying the protection of the federal courts. The law did not authorize judges to issue warrants for the arrest of slaves and...