TRACING THE ISSUE OF SLAVERY THROUGH THE U.S.
CONSTITUTION
The topic of slavery was stricken from Declaration of Independence
because Thomas Jefferson’s draft of the Declaration of
Independence,…accused the king of waging cruel war against human
nature itself, “violating its most sacred right 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.
Even so, sentiments in the Declaration of Independence led blacks to
appropriate the idea of equality for themselves. By 1790, 8% of AfricanAmericans were free—most purchased or gained their freedom as a
result of service during the American Revolution. By 1800, over 11% of
all American blacks were free.
As the states gained their independence some prohibited the slave
trade. Some even abolished 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; most
states ended the trade by 1794. While no states south of Pennsylvania
abolished slavery during this period, several enacted laws facilitating
manumission by slaveholders.
States also made changes to the differences in legal status between
whites and blacks. In 1791 North Carolina ended the legal
differentiation between the murder of whites and blacks; a white could
receive the death penalty for the murder of a black. Other states dropped
restrictions on blacks’ freedom of movement and travel, protected
property rights of blacks and in 13 of the 16 states black men had the
right to vote, or were not specifically excluded from doing so.
The Ordinance of 1784 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. 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.”
It was inevitable that slavery should have been an important
consideration at the Constitutional Convention…. 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.”
A compromise was reached which stated 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.”
The question of fugitive slaves was something of an anticlimax. Without
serious challenge, the provision was inserted in Article IV, Section 2:
“No persons, 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, 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.
It was the business of the Congress to enact legislation to carry out the
objectives set forth in the Constitution….
[In 1793 there was a] call for a statute to facilitate the surrender of
fugitives from justice. Congress responded by passing the Fugitive
Slave Act of 1793. 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 it did not compel federal authorities to aid in the
pursuit of fugitive slaves. The lack of such provisions generated
criticism by slaveholders for years to come. Meanwhile, opponents of
slavery began actively to aid fugitives, to urge federal judges not to issue
certificates for the return of runaways, and to persuade local officers not
to cooperate in their rendition. Slave masters soon called for a more
effective law.
In the meantime, blacks lost the right to vote first in Delaware in 1792,
and then in Maryland, Kentucky, and New Jersey by 1807. Also, Alien
Laws of the 1790s restricted immigration to whites only and 1792 and
1798 military laws limited enlistments to whites only.
Ending the slave trade under the provision set forth in the
Constitution was not a foregone conclusion.
In January 1800, a group of free Negroes in Philadelphia called on
Congress to revise its laws on the slave trade and on fugitives. When
South Carolina reopened its ports to the trade in 1803, antislavery groups
began to press Congress to act. Congress proceeded to consider
legislation outlawing the trade. By 1807, however, state laws were in
place. Thus, the Prohibition of the Slave Trade Act (1807) was a
compromise. It directed federal officers to be “governed by the
provisions of the laws, now existing, of the several states prohibiting the
admission or importation…of any Negro, mulatto, or other person of
color.”
In 1818 in the first supplementary act to the law of 1807, Congress
sought to make the trade less attractive by increasing the penalty for
anyone engaged in it. In 1819 Congress directed the President to use
armed cruisers on the coasts of the United States and Africa to suppress
the trade. In the following year Congress provided that direct
participation in the slave trade was an act of piracy, punishable by death.
But, there were so few captures and the federal officials did so little to
enforce the statute of 1807 that it was nearly a dead letter. Slavers
introduced their cargo into the United States from Galveston, then a part
of Mexico, from Amelia Island in Florida, until 1819 a part of the
Spanish Empire, and at various parts on the eastern and southern coasts
of the United States. The United States failed to enforce the law. The
trade continued down through the Civil War. A recent student of the
trade estimates that some 51,000 slaves were illegally imported by 1860.
When Missouri sought admission in 1818, northern members of
Congress said that they would agree only on condition that the Missouri
constitution forbid slavery. Southerners claimed that the restriction was
discriminatory; some threatened disunion. After bitter debate, the
impasse was resolved when Maine sought admission. Congress admitted
Maine as a free state and Missouri as a slave state and declared that in
the Louisiana Territory slavery would not exist north of the southern
boundary of Missouri. The Missouri Compromise stimulated the
rivalry between the slave and free states, with each side searching for
ways to enhance its advantage and slavery became a deadlock issue.
Since the Southern states were guaranteed equal representation in the
Senate, Southern Senators could kill any and all bills passed by the
House of Representatives aimed to weaken slavery on a national level.
Northern states feared the Fugitive Slave Law of 1793. State
legislatures empowered state courts to rule in matters arising out of the
1793 law. The Pennsylvania statute of 1826 required the master to
present to a magistrate proof of his claim to the alleged fugitive. If
anyone had seized a person suspected of being a runaway and wrongfully
removed him, he would, upon conviction, be deemed guilty of a felony
and suffer fine and imprisonment. The Supreme Court ruled on the
constitutionality of the Pennsylvania statute in PRIGG V.
PENNSYLVANIA (1842). The Supreme Court reversed the state court
decision. Speaking for the Court, Associate Justice Joseph Story
declared the Pennsylvania Law unconstitutional, because it invaded a
field placed within the exclusive domain of the federal government by
the Fugitive Slave Act of 1793 and by the Constitution itself. States
could enforce the law of 1793, if they wished; but they could not be
required to do so. By placing the fugitive slave question within the
exclusive Jurisdiction of the federal government, Justice Story implicitly
encouraged northern sates that did not wish to cooperate in the
enforcement of federal legislation on the subject. Accordingly ten free
states enacted personal liberty laws. The impact of Prigg was to relieve
states of responsibility in enforcing the Fugitive Slave Law.
case,…once Scott returned to Missouri his status was determined by
Missouri law. In Missouri he was still a slave, and thus not a citizen of
any state. The case was dismissed for want of jurisdiction.
The Compromise of 1850 included a new fugitive slave law that
undertook to establish adequate federal machinery for its enforcement.
Circuit courts were to appoint commissioners who, concurrently with
circuit and district judges, had authority to grant certificates for the return
of fugitive slaves. US marshals were to execute warrants issued under
the act, and a failure of diligent execution was punishable by a $1,000
fine. If a fugitive should escape from a marshal’s custody, the marshal
was liable for the slave’s full value. When the marshal or claimant
brought the slave before the court to request a certificate for his return,
the alleged fugitive was not permitted to testify in his/her own behalf.
Court disturbances, aiding or abetting fugitives, and harboring or
concealing fugitives were punishable by a $1,000 fine and six months
imprisonment. The right to trial by jury and to confront and crossexamine witnesses was itself an unconstitutional denial of due process.
Fugitive slave cases increased, but so did rescues, accompanied by
denunciations of federal officials.
The outbreak of the Civil War did not put an end to slavery. President
Abraham Lincoln insisted that the Confederate states were still in the
Union and continued to enjoy the constitutional protection of slave
property. However, there was no enforcement of fugitive slave laws.
The Confiscation Act of August 6, 1861, declared that owners forfeited
slaves engaged in hostile military service. In July 1862 the Second
Confiscation Act granted freedom to slaves of traitors. Furthermore, the
slaves of all persons supporting the rebellion were “forever free of their
servitude…” Congress abolished slavery in the District of Columbia
and the territories with $1,000,000 for compensation to owners not
exceeding $300 for each slave and the removal and colonization of the
freedmen. On June 19, 1862, Congress passed and sent a bill to the
President abolishing slavery in the territories, [but] with no provision for
the compensation of owners.
The bill to organize Kansas and Nebraska as territories…repealed the
Missouri Compromise and left the inhabitants of the respective territories
the decision whether the states-to-be would be slave or free. After bitter
arguments and bloody battles, Kansas voted for a free constitution. The
South felt that its ambitions had been frustrated and its rights under the
Constitution violated as well.
Dred Scott v. Sandford (1857) presented an ideal opportunity…to
secure an unequivocal statement on the status of slaves in the free states
and in the territories. Chief Justice Taney was…the spokesman [when
he] declared that because Negroes had been viewed as belonging to an
inferior race at the time that the Constitution was ratified, they were not
citizens within the meaning of the Constitution’s provision. Scott had
not become free because the Compromise was unconstitutional;
Congress had no authority to prohibit slavery in the territories. In any
Abolitionists would win local victories…but the Fugitive Slave Law
remained intact until the Civil War.
On September 22, 1862, Lincoln issued the Preliminary Emancipation
Proclamation, to take effect January 1, 1863. Abandoning the notion of
colonization, the President, declared free those slaves in states or parts of
states under Confederate control. He further declared that the freedmen
would be received into the armed service of the United States. This
proclamation, did not actually free the slaves. Although military action
set many of them free, either state or federal action or both were needed
to achieve real and permanent freedom in law and practice. By early
1865, Tennessee, West Virginia, Maryland and Missouri had taken steps
to free their slaves.
By December 18, 1865, twenty-seven states, including the eight former
Confederate states, had ratified the Thirteenth Amendment, and it
became part of the Constitution.
By John Hope Franklin, Encyclopedia of the American Constitution,
SACC-ZURC, Vol. 4. Leonard W. Levy, Kenneth L. Karst and Dennis J.
Mahoney, eds. Macmillan Pub. Co., NY: London, 1986.