Monday, September 01, 2008

The Fugitive Slave Act of 1793 2: The Constitutional Convention

The surprisingly brief history of the Fugitive Slave Clause at the Constitutional Convention is pretty well know. Nonetheless, for convenience I'll recap it here.

The issue of fugitive slaves first arose in the convention in connection with the consideration of proposed Article XV as reported by the Committee of Detail on Monday August 6, 1787. Article XV as reported stated in its entirety:

Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.

In other words, at that point the proposed article contained only what ultimately became the Extradition Clause.

At the very end of the session on Tuesday August 28th, Pierce Butler and Charles Pinckney of South Carolina brought up the idea of a fugitive slave provision for the first time:

Art: XV being taken up, the words "high misdemeanor," were struck out, and "other crime" inserted, in order to comprehend all proper cases: it being doubtful whether "high misdemeanor" had not a technical meaning too limited.

Mr. BUTLER and Mr. PINKNEY moved "to require fugitive slaves and servants to be delivered up like criminals."

Mr. WILSON. This would oblige the Executive of the State to do it at the public expence.

Mr. SHERMAN saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.

Mr. BUTLER withdrew his proposition in order that some particular provision might be made apart from this article. Art XV as amended was then agreed to nem: con:


On the next day, the convention returned to the subject. Again, the discussion was exceedingly brief. Mr. Butler proposed language that the ultimately became the Fugitive Slave Clause, and it was agreed to without dissent. Madison’s relevant notes state in their entirety:
Mr. BUTLER moved to insert after art: XV. "If any person bound to service or labor in any of the U. States shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor," which was agreed to nem: con:

Ultimately the proposed Articles, including Article XV, were referred to the “Committee on Stile.” The Committee reported its handiwork on Wednesday September 12th. Article XV had become Article IV, Section 2. That section contained three provisions: the Privileges and Immunities Clause, the Extradition Clause and the Fugitive Slave Clause. The Committee had slightly changed Mr. Butler’s language, but not in any material way:
Sect. 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled be delivered up, and removed to the state having jurisdiction of the crime.
No person legally held to service or labour in one state, escaping into another, shall in consequence of regulations subsisting therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due.

In the review of the Committee’s draft that followed, only one proposal was made concerning the language of Article IV, Section 2. Although it reflects the sensitivity of some members to the moral issues that slavery involved, it did not change the substance. Again, here is Madison’s entire discussion of the change, which was made on Saturday September 15th:
Art. IV. Sect 2. parag: 3. the term "legally" was struck out, and "under the laws thereof" inserted after the word "State," in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view.

Thus the Fugitive Slave Clause reached its final form:
No person held to service or labour in one state under the laws thereof, escaping into another, shall in consequence of regulations subsisting therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due.

The Fugitive Slave Clause undoubtedly gave slaveowners something of value. The Articles of Confederation had contained no similar provision, nor had the Articles given the Confederation Congress power over the issue. At most, masters might attempt to exercise their common law right to recapture fugitives on their own, but it appeared that nothing restricted free states from denying that right by asserting that any slave who entered their territory could not be seized and returned.

It is also fair to say that slaveowners believed they were obtaining something of value. As Akhil Amar has summarized:
The clause thus gave slave states an explicit guarantee that they lacked under the background legal rules in place in 1787 America. In trying to sell the Constitution to his fellow slave masters in Virginia, Madison explained that, despite its linguistic indirection, the language governing “service or labour” was “expressly inserted, to enable owners of slaves to reclaim them. This is a better security than any that now exists.” Without the clause, free states could not only refuse to “deliver[] up” fleeing slaves but could even formally free them, reported Madison. “At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws; for the laws of the states are uncharitable to one another in this respect.” In the Carolinas, leading Federalists offered similar accounts of Article IV.

See Elliot’s Debates 3:453 (Madison); 4:176 (James Iredell); 4:286 (Gen. Charles Cotesworth Pinckney); Farrand’s Records 3:84 (William Blount, Richard D. Spaight and Hugh Williamson to Gov. Richard Caswell of North Carolina).

Over the following decades, however, advocates of slavery increasingly came to inflate the protections that they had supposedly bargained for and received. For example, in 1842, Mr. Meredith, one of the attorneys who argued Prigg for the State of Maryland, maintained:
It was during this conflict of law, of opinions and of interests between the northern and southern states, that the constitution embracing the provision in question was adopted. That provision, it is well known, was the result of mutual concessions in reference to the whole subject of slavery. On the one hand, the south agreed to confer upon congress the power to prohibit the importation of slaves after the year 1808; on the other, the north agreed to recognise and protect the existing institutions of the south; and for that very purpose, the clause in question was engrafted upon the constitution. The history of the times proves, that the south regarded and relied upon it, as an ample security to the owners of slave property. In the Virginia convention, in order to satisfy the minds of the people, that property of this description was abundantly protected, Governor Randolph held this language: “Were it right to mention what passed in convention on the occasion, I might tell you, that the southern states-even South Carolina herself- conceived this property to be secured by these words.” Such, undoubtedly, was the confidence of the whole south, in the intention of the framers of the constitution. Such was their intention; and if so, it would seem to follow as a necessary consequence, that they meant to commit all legislative power over the subject exclusively to Congress. The provision was manifestly intended to restore to the south the rights which the customary law had formerly extended to them, in common with the other colonies. Those rights had been disregarded by many of the states. And the apprehension must have forced itself upon every southern mind in the convention, that if the provision were left to be carried out by state legislation, it must prove but a precarious and inadequate protection.

(Emphasis added)

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