Four

THE FIRST TEST

1.

Although autumn had almost arrived by the time the convention adjourned on September 17, 1787, the remaining delegates—and not just those heading south—faced a hot trip home. As they scattered back to their respective states, a new challenge loomed: persuading their constituents to accept the charter whereby they hoped the nation would henceforth govern itself.

Pending ratification by the states, the deal was far from done. Skepticism or outright opposition existed in all thirteen states, but concern ran particularly high in the South about what exactly the proposed Constitution would mean for the future of slavery. Charles Cotesworth Pinckney, upon returning to his home state, conceded that “we would have made better if we could” but assured his fellow Carolinians that “considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make.” The Constitution would provide “a security that the general government can never emancipate our slaves.”

Pinckney was articulating what has since been called “the federal consensus,” the principle that the federal government—referred to at first, perhaps with a touch of disparagement, as the “general” government—had no authority to interfere with slavery where state law permitted it. Such, at least, was the widespread inference from Article 4, Section 1, which stated that “Full Faith and Credit shall be given in each State to the Public Acts, Records, and judicial Proceedings of every other State,” a principle later to be amplified by the Tenth Amendment of the Bill of Rights: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This principle was often restated in ensuing years and thus remained a legal obstacle to the abolition of slavery even as public opinion in the North turned against the institution. As the historian James Oakes remarks, “The biggest problem abolitionists faced was not a proslavery public but a Constitution that protected slavery in the states where it already existed.” As early as June 1788, at the Virginia ratification convention, Madison asserted that “no power is given to the general government to interpose with respect to the property in slaves now held by the states.” In 1790, in response to a petition for the abolition of slavery submitted by the Pennsylvania Abolition Society, Congress responded that it could not “interfere in the emancipation of slaves, or in the treatment of them within any of the States.”

But despite provisions for property protection built into the Constitution, Pinckney’s choices of phrase revealed an incomplete confidence that the protections would be strong enough. “Considering all the circumstances” had a note of defensiveness, and “this species of property” was a strained euphemism for human beings who, despite spurious arguments to the contrary, possessed as much reason and volition as their masters. The Constitution referred to them tellingly as persons because everyone knew that no matter how reasonable the slave owner or reticent the slave, every transaction between them entailed a contest of human wills.

Madison acknowledged as much in one of his contributions to the series of essays favoring ratification of the Constitution signed by “Publius” under the collective title The Federalist, written in collaboration with Hamilton and Jay between the fall of 1787 and the summer of 1788. He began by “deny[ing] the fact, that slaves are considered merely as property, and in no respect whatever as persons.” In fact, he wrote, “the true state of the case is” more complicated, because “they partake of both these qualities: being considered by our laws, in some respects, as persons, and in other respects as property.”

Madison went on to explain that “in being compelled to labor, not for himself, but for a master; in being vendible by one master to another master; and in being subject at all times to be restrained in his liberty and chastised in his body, by the capricious will of another, the slave may appear to be degraded from the human rank, and classed with those irrational animals which fall under the legal denomination of property.” Yet “in being protected, on the other hand, in his life & in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others; the slave is no less evidently regarded by the law as a member of the society; not as a part of the irrational creation; as a moral person, not as a mere article of property.” Here was a perverse version of the founders’ vaunted ideal of the “prudent mean”: the notion that slaves somehow occupied a middle ground between property and persons.

There was, of course, no equivalence between “this species of property” and any other. If a chair tipped over and injured its occupant, no one would think of prosecuting or punishing it, but if a slave struck his master, or a stranger, or another slave, the law held him just as accountable as if he were a free man. Except in cases where it could be shown that a master had commanded a slave to steal, assault, or commit some other crime, slave owners were not liable for the actions of their slaves—on the premise that despite their putative inferiority slaves were human beings fully capable of exercising free will.

In the period between the Revolution and the Civil War, most slave states permitted the killing of slaves as deemed necessary—a judgment left largely to the killer—for “dispersing unlawful Assemblies of rebel Slaves or Conspirators” or while apprehending resistant runaways. When it came to punishing slaves for criminal acts, which included running from one’s master, vigilante violence appears to have been relatively rare in the early republic, at least compared with the horrors of the post-Reconstruction years, when mobs were free to lynch a black man without having to answer to a white man for destroying his personal property.

Toward the end of the eighteenth century, chiefly in order to protect human property from casual destruction, punishments for injuring or destroying a slave became more severe. This was the basis of Madison’s claim that a slave was “protected . . . in his life and in his limbs, against the violence of all others.” In one much-publicized case in 1791, a Virginia slave who killed his overseer was acquitted on grounds of self-defense. But despite such qualifications and exceptions, slave masters enjoyed wide latitude in punishing their own slaves, as well as exemption from laws designed to curb violence against a slave by anyone except his owner.

Perhaps the most outrageous feature of the law concerning slaves was its indifference to criminal sexual acts perpetrated against them. Women and girls were violated in untold numbers by masters and overseers as well as by other slaves, and yet, because the concept of rape was essentially absent from the slave codes, virtually no records exist of men brought to trial for committing sexual assault on a slave. As late as 1855, a female slave in Missouri charged with killing her master was convicted and hanged in the face of compelling evidence that he had repeatedly raped her and that she was defending not only her honor but her life. Because black females (slave or free) were said to be chronically wanton—enslaved, in effect, to their own lusts—they were granted no protection from laws that shielded white women from being “defiled . . . by force, menace, or duress.” An enslaved woman was credited with a culpable will if she was accused of committing a crime, but when a sexual crime was committed against her, she was regarded, in the words of the scholar Saidiya Hartman, as “will-less and always willing.” She was treated as a person when she transgressed but as property when she was transgressed against.

2.

Where, then, in a slave, did the line between humanity and property begin and end? To hear Madison parse this question is like hearing a physician describe a patient as if she were a laboratory specimen rather than a sentient being. Madison had a good deal to say about the subject but no apparent interest in what the subject might say for herself. Still, cold and clinical as he may sound to us now, he was taking a significant step toward acknowledging the contradiction within slavery that would ultimately destroy it. In private notes that he kept during the Constitutional Convention (not published until after his death), he stated the matter directly: “It would be wrong to admit in the Constitution the idea that there could be property in men.”

Coming from a man who, twenty years later, was to take a contingent of his own slaves to the White House upon becoming president, this statement may seem brazen hypocrisy, or simply preposterous. To distinguish between slavery in principle and slavery in practice was to make a distinction without a difference, at least as far as people who were enslaved were concerned. But in the context of his time, Madison’s objection to allowing the concept of human property into the federal constitution was coherent and consequential.

He was speaking from within a tradition of English jurisprudence that acknowledged slavery as a legitimate form of human relations if and where “the positive enactments of legislatures or other human agencies” deemed it so. But that same tradition, as represented by John Locke’s immensely influential Second Treatise of Government, first published in 1689, asserted that the “municipal laws of countries . . . are only so far right, as they are founded on the law of nature.” Because slavery, in the words of the English jurist William Blackstone, was “repugnant to reason, and the principles of natural law,” more and more clergy, reformers, and, eventually, politicians became convinced that any statute (positive law) supporting slavery was rendered null and void by the manifest truth (natural law) that it is an unconscionable evil.

A major statement of the conflict between positive and natural law came in 1772, with lasting reverberations. Late in the previous year, Britain’s chief justice, Lord Mansfield, was called upon to decide the case of James Somerset, an African-born man who had been enslaved in Virginia. Somerset had been brought by his owner to England, where he escaped, was recaptured, and was about to be shipped for sale in Jamaica. But before he could be returned to captivity, he was released to the Court of King’s Bench on a writ of habeas corpus obtained by the antislavery activist Granville Sharp, who challenged the legality of his detention.

Mansfield tried to confine himself to the narrow question of whether Somerset’s owner had the right to “compel the slave to go into a foreign country.” But the language in which he delivered his decision—that the owner had no such right—was widely understood to mean that because slavery had never been authorized by statute or common law in England, the laws of the Virginia colony had no authority in the home country. Mansfield then went beyond the legalities of the case to express disgust not only at the enslavement of one man but at slavery itself:

The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

In other words, a slave removed from a jurisdiction where slavery is permitted by positive law to one where it is forbidden in compliance with natural law becomes free by the very act of transit. The slave’s former owner has no legal recourse to get him back. Somerset was released to live as a free man in England, and the case became a touchstone for the antislavery movement on both sides of the Atlantic.

One effect of Mansfield’s ruling in Britain was to advance the emancipation of the relatively small number of slaves who had been brought to the homeland from the colonies—about fifteen thousand in a total population of ten million. It also marked a step toward the eradication of slavery throughout the empire. Although the chief justice was later to recall that “there had been no determination that [slaves] were free,” and that his “judgment (meaning the case of Somerset) went no further than to determine the master had no right to compel the slave to go into a foreign country,” he had sounded, however intentionally, what was heard as a clear call for freedom. While visiting London in 1773, one Virginia slave owner wrote to a correspondent back home that the high court’s decision was “generally felt as putting a negative on the existence of slavery” in Great Britain. In 1785, the poet William Cowper spoke for many when he burst out in patriotic exultation:

Slaves cannot breathe in England; if their lungs

Receive our air, that moment they are free;

They touch our country, and their shackles fall.

Cowper’s ebullience was premature, given that several thousand blacks in Britain continued to be treated as slaves in fact if not in name, and slavery would not be formally abolished in the British Empire until 1833. Soon after Mansfield’s decision, Benjamin Franklin referred to the “Hypocrisy” of Great Britain “for promoting the [slave] Trade, while it piqu’d itself on its Virtue[,] Love of Liberty, and the Equity in its Courts in setting free a single Negro.”

Nonetheless, in America, for decades to come, the Somerset decision would shine a bright light—or, from the southern point of view, cast a long shadow—over the question of whether a slave remains enslaved if he flees or is taken to a free state or territory. For slave owners, the answer was an emphatic yes because the Constitution said so. When, in 1804, South Carolina’s senator Pierce Butler, living in Philadelphia with his slave Ben, was served with a writ of habeas corpus demanding Ben’s release on the grounds that their residency in the city had exceeded six months, his reply was quick and short. “I am a citizen of South Carolina,” he said. “The laws of Pennsylvania have nothing to do with me.”

Here was a reminder that the so-called United States was nothing more than a loosely linked group of semi-sovereign states, each of which resisted federal incursion into its autonomy. It was a would-be nation in which the problem of comity—the constitutional principle of deference owed by one state to the laws of another—was a long way from being resolved. Southerners like Butler seemed to regard comity as a one-way street: Pennsylvania must respect the South Carolina laws by which he owned his slave without limit, but he need not respect the Pennsylvania law that freed any slave brought to the state after a residency of more than six months. Butler’s retort implied that citizenship was conferred by one’s home state, not by the nation, and that it was the home state that defined each citizen’s rights and obligations.*

In more recent times, our own society was roiled by a similar question of comity: If two persons of the same sex living in a state where the law permits them to marry move to another state where the law forbids them to do so, what is the status of their marriage? Where is it valid, and where is it void? This question was answered on June 26, 2015, when the U.S. Supreme Court ruled that gay marriage is a constitutional right that cannot be abridged in any state of the nation. In antebellum America, the analogous (in a jurisdictional if not a substantive sense) problem of whether “residence on free soil made a man free, or whether those states were bound to give judicial recognition to the status created by the laws of the slave states” proved impossible to resolve until the Civil War settled it once and for all.

In effect, slave owners such as Butler were saying that the Somerset principle—that slavery may exist only where local laws allow it—could not be applied within the American union because to do so would be to deny them their property rights whenever they took their human property from a slave state to a free state. But the Somerset precedent went further: it also validated the idea that slavery was an offense against natural law, sometimes called the “higher law,” or the law of nature inscribed in the human heart. This idea found especially warm adherents in New England, which had been settled in the preceding century by stringent English Protestants (Puritans) who believed, in the words of one of their leading ministers, that “we have an oracle in our breasts, which if we would but rub up, would reveal all things to us.” To their descendants—some of whom, bearing names of Puritan pedigree like Higginson, Beecher, Adams, and Weld, became leaders of the abolitionist movement—one of the things revealed was that whatever its status according to the laws of man, slavery was a heinous sin in the eyes of God.

John Quincy Adams c. 1843

As this conviction took hold in what has been called the “New England Conscience,” it grew, in the minds of slaveholders, from an aggravation into an affront. Massachusetts, especially, was regarded by southerners as an “asylum” for fugitive slaves and its citizens seemed drenched in moralistic self-delight. When the South Carolina Whig William Grayson sat in Congress in the 1830s behind the neo-Puritan John Quincy Adams of Massachusetts, he made a habit of watching for a “tinge of crimson” to appear on Adams’s “singularly bald” scalp. He knew that when Adams’s head turned red, it was an infallible sign that he was about to launch another tirade against the sinful South. One correspondent to the Richmond Enquirer improbably compared the cerebral Adams to a “hyena in human shape.”

By the eve of the Civil War, southerners blamed the imminent breakup of the nation on what one Georgia planter called the “intolerant and turbulent spirit” of the “New England race,” which had always believed itself exclusively privy to the will of God. During the war, when a captured Confederate soldier charged that “Emerson and Beecher, as well as Grant and Sherman, and their followers” were “sacrilegious enough to believe themselves a portion of the Deity,” he was expressing a long-established view that Yankees were a people dripping with self-righteousness and self-love.

But invoking God against the sin of slavery was by no means unique to New England. In 1776, the Scottish founder of free-market economics, Adam Smith, who professed no strong religious faith, wrote that “the property which every man has in his own labour, as it is the original foundation of all other property, so it is the most sacred and inviolable.” Such words—“sacred,” “inviolable”—were deployed with increasing frequency from what Melville was later to call—at the start of the fugitive slave crisis in the 1850s—the “warm halls of the heart” against heartless rulings issued from the “cold courts.”

With attacks mounting on slavery as a violation of “what law should be, but wasn’t,” significant numbers of people in the early republic, including a good many slave owners, expected that over time positive law would catch up with natural law until, like other unnatural practices such as cannibalism and human sacrifice, slavery would be a thing of the past. This expectation was embedded in the Declaration of Independence, in which Jefferson invoked “nature’s God” as an approving witness to the power of the Revolution—a word that retained its root meaning of turning or revolving—to advance mankind along the arc of moral progress.

Both the declaration and the Constitution were filled with phrases of aspiration (“pursuit of happiness,” “to form a more perfect union”) not only for America but for the world. When Oliver Ellsworth, representing Connecticut at the Constitutional Convention, predicted that “slavery in time will not be a speck in our country,” his words sounded credible to many in the room even if the nods of northerners were met by glares from their southern counterparts.

Cynical as one tends to be today about politics and politicians, it is tempting to hear such words as empty rhetoric. And knowing what we know—that slavery was to last almost another eighty years, to be destroyed not by moral consensus but by a war that consumed nearly a million lives—those confident predictions by the founding fathers of its demise may now sound foolish and glib.

But for at least a moment, the Revolution had seemed to bring the prospect of universal emancipation to the verge of fulfillment. When Jefferson reflected that God’s “justice does not sleep forever,” he was giving voice to the hope—mixed, for slave owners, with fear—that the end of slavery was drawing near. Even the deletion from the Declaration of Independence of Jefferson’s attack on the slave trade, and the deferral, in the Constitution, of its prohibition for twenty years, did not confute the prevailing view that slavery was on the wrong side of history. “There were probably few members of the Convention,” Du Bois wrote more than a century later in his history of the Atlantic slave trade, “who did not believe that the foundations of slavery had been sapped merely by putting the abolition of the slave-trade in the hands of Congress twenty years hence.”

3.

Part of the reason was that the war itself had shaken its foundations. Even as some slave owners reviled the British for their policy of “stealing” slaves, others urged the colonists to do precisely what the British were doing: offer freedom to slaves in exchange for military service. In 1780, the Virginian Joseph Jones suggested to Madison that in order to encourage enlistment in the Continental army, which was chronically short of manpower, “a Negro not younger than ten or older than 40 years” should be provided “for each Recruit”—to be obtained from large-scale slave owners and paid for by the new national government. In reply, Madison wondered whether there might not be a simpler and better way. “Would it not be as well to liberate and make soldiers at once of the blacks themselves as to make them instruments for enlisting white Soldiers?” After all, he added, “it would certainly be more consonant to the principles of liberty which ought never to be lost sight of in a contest for liberty.” Then, anticipating Jones’s shock at such a radical suggestion, Madison assured him that “no imaginable danger could be feared from” liberated slaves even if guns were handed out to them.

It was a daring idea but not a new one. As early as June 1775, one of John Adams’s Virginia correspondents had suggested that the Continental Congress “proclaim instant freedom to all the Servants that will join in the Defence of America.” In 1778, Benedict Arnold, before he went over to the British side of the conflict, had proposed a joint attack with French naval forces against the British colonies of Barbados and Bermuda, where the invaders would “engage in the marine service of the united states about 5 or 6 hundred black and Mulatto Slaves who are employed as mariners in coasting vessels, by giving to them the pay and privileges of American Seamen, and assuring them of the[ir] freedom after the war, or three years Service.”

John Laurens (son of Henry Laurens, who, before and after his diplomatic career, ran a thriving slave-trading business) repeatedly proposed that slaves who fought for the cause of independence should be rewarded with freedom. Such a plan was actually approved in 1779, when Congress authorized payments of up to a thousand dollars per slave to masters who would relinquish them to join the fight. But greeted by “contemptuous huzzas” in the South Carolina legislature and elsewhere, the scheme was never implemented. “We are much disgusted here,” wrote one of its opponents, “at the Congress recommending we arm our slaves.”

General Washington shared the concern. In a March 1779 letter to Henry Laurens, he worried that arming some portion of the slaves would cause “much discontent” among the rest, though he confessed that he had not thought the matter through:

The policy of our arming Slaves is, in my opinion, a moot point, unless the enemy set the example; for should we begin to form Battalions of them, I have not the smallest doubt (if the War is to be prosecuted) of their following us in it, and justifying the measure upon our own ground; the upshot then must be, who can arm fastest, and where are our Arms? Besides, I am not clear that a discrimination will not render Slavery more irksome to those who remain in it; most of the good and evil things of this life are judged of by comparison; and I fear a comparison in this case will be productive of much discontent in those who are held in servitude; but as this is a subject that has never employed much of my thoughts, these are no more than the first crude Ideas that have struck me upon the occasion.

Notably, the slave-owning Washington applied his view of human psychology (“the good and evil things of this life are judged of by comparison”) to all persons without distinction between blacks and whites.

Like most if not all of the founders, he realized that the new nation, having assumed, in the language of the Declaration of Independence, “a separate and equal station . . . among the powers of the earth,” now stood in a fundamentally changed relation to slavery as both an idea and an institution. Before the Revolution, proponents and opponents of slavery could speak of it as an unsought inheritance from their imperial masters. After the war, both were obliged, as one might say today, to “take ownership.” What had been an imposition was now a choice—a choice, some historians have suggested, that left southerners “at least subconsciously aware” of the contradiction between their loyalty to slavery and their professed love of liberty.

Delving into the subconscious of people in the present, even those we know intimately, is hard enough. To do so for people in the past, whom we know only through writings by or about them, would seem to be all but impossible. And given their cavalier use of the slavery metaphor to express political grievance—first against the crown, later against the North—it would seem that self-knowledge among slave owners must have been buried deep if it was there at all. Yet the euphemistic language (“correction” for “whipping”; “sending” for “selling”) with which they spoke of their slaves suggests that at least some could not bear to speak the truth even to themselves.

Defending slavery in postrevolutionary America on any but prudential grounds required a mental contortionist. This was increasingly obvious as the pseudoscientific racialism to which Jefferson was drawn and that others fully embraced began to lose its grip on educated people. In 1797, the distinguished Philadelphia physician Benjamin Rush presented a paper to the American Philosophical Society arguing “that the black color (as it is called) of the Negroes is the effect of a disease in the skin of the leprous kind.” Today this statement sounds patently outrageous, but in its time it was a rebuke to popular prejudice. Whiteness, for Rush, was still the norm, and blackness a pathology, but skin color had no more implication for character or mental capacity than a boil or a rash. The idea that some people were “naturally” suited for slavery and unsuited for freedom was becoming intellectually disreputable.*

There were also strategic reasons to reject it. Just as, a century and a half later, racial segregation would become a liability for America’s ideological struggle with the Soviet Union, slavery was becoming an international embarrassment for the young republic in the wake of its separation from Britain. “A slaveholding nation,” as David Brion Davis has remarked, “could not serve the world as a model of freedom”—a point that became an enduring theme from the Revolution to the eve of the Civil War, when Lincoln said of slavery, “I hate it because it deprives our republican example of its just influence in the world.”

Religious sentiment, too, was building against it. In 1784, the Methodist Church, soon to be the largest denomination in the South, resolved “to extirpate this abomination among us” by expelling members who did not emancipate their slaves, as well as anyone who bought or sold slaves except for the purpose of liberating them. And if science and religion were changing, so was the law. The highest court in Britain had declared slavery an “odious” form of barbarism that had lingered too long at the periphery of the empire and had no place at the imperial center. That some of the former North American colonies were moving to abolish it while others retained it meant that every time a slave owner took his slaves across the internal American border between slavery and freedom, the putative unity of the new nation was exposed as a lie.

4.

Madison knew all this not only as a political or legal matter but from personal experience. In the summer of 1783, traveling to Philadelphia for a session of Congress, he took with him his slave Billey, whom he had owned since both were children. According to Pennsylvania’s recently adopted Gradual Emancipation Act, a nonresident slave owner could retain his slave while on “sojourn” in the state, and when his business was concluded, as long as it consumed less than six months, he could take him home just like any other piece of movable property.

As a member of Congress, Madison was exempt from the six-month limit, but—possibly because Billey had attempted to escape or had grown restless while living in antislavery Philadelphia—he decided that rather than bring his slave back to Virginia, he would relinquish him locally, at a price less than his worth, to a Quaker merchant for a term of service as an indentured servant. After completing his term, Billey would be free.

Madison explained himself in a letter to his father, who, as a county judge, had once sentenced a slave to death for stealing twenty-five cents’ worth of goods from a storehouse. The younger Madison’s letter was a marvel of self-contradiction. On the one hand, he wrote approvingly that Billey yearned for the freedom due to any man by virtue of his humanity. On the other hand, perhaps to mollify his father, he wrote disapprovingly that Billey’s yearning “tainted” him, so that if he were to return to Virginia, he would foment discontent among other slaves and pose a risk of spreading sedition. Having tasted freedom, Billey was no longer fit to live among those whom he might inspire to seek it for themselves:

I have judged it most prudent not to force Billey back to Virginia even if it could be done; and have accordingly taken measures for his final separation from me. I am persuaded his mind is too thoroughly tainted to be a fit companion for fellow slaves in Virginia. The laws here do not admit of his being sold for more than 7 years. I do not expect to get near the worth of him; but cannot think of punishing him by transportation merely for coveting that liberty for which we have paid the price of so much blood, and have proclaimed so often to be the right, & worthy pursuit, of every human being.

Here was a case of what F. Scott Fitzgerald was to describe many years later as “the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.” Fitzgerald associated this talent with “a first-rate intelligence,” but the phrase could just as easily describe what is nowadays called compartmentalization, the habit of holding separately in mind irreconcilable commitments—a trick at which the founders were adept, especially the Virginians. In Madison’s case, the opposed ideas were the universal right to freedom and the legitimacy of slavery as sanctioned by local law. When the British abolitionist Harriet Martineau traveled to Montpelier to visit him late in his life, she was amazed by his ability to hold forth at the dinner table on the evils of slavery while being waited on by his slaves.

Madison’s experience with Billey—or, more accurately, with the distinction between how Billey was regarded in Virginia and Pennsylvania—pointed to the same division within the nation as within himself. The Constitution, of which he was chief architect, tried to bridge the difference. But it took no position on the fundamental question of positive versus natural law—on, that is, the rightness or wrongness of slavery itself. Instead, through the fugitive slave clause, it tried to reconcile the irreconcilable laws of a partitioned nation in which each side of the slavery dispute, for the sake of the nation’s survival, conceded the sovereignty of the other side. Runaway slaves and those who pursued them thus found themselves in a borderland between two nations pretending to be one—a pretense that would soon be put to the test.

Portrait of James Madison by Asher B. Durand, 1833

5.

The first test came even before ratification of the Constitution was complete. Shortly before the Revolution, a Maryland slave owner named Davis had moved to what he might have thought was then northwest Virginia, taking with him a slave named John, who, in keeping with custom, bore his master’s surname. In 1779, however, the region where they had moved was absorbed into Washington County, Pennsylvania. One year later Pennsylvania adopted its Gradual Emancipation Act, which prohibited further importation of slaves and emancipated all children born thereafter in the state.

As for slaves already born, their masters could pay a registration fee before November 1, 1780, and thereby retain them.* But many slave owners simply ignored this requirement, especially those living near the Virginia border, which was not formally settled until 1784. Among them was John Davis’s master, who continued to treat John as his personal property and in 1788 took him to Ohio County, Virginia, where he hired him out as his slave, collecting the main part of his wages for himself.

Thus began the shuttling of John Davis back and forth between the two states. Soon after his removal to Virginia, several abolitionists, knowing he had been sent away against his will, located him and returned him to Pennsylvania as a free man on the grounds that his owner had never registered him as a slave. A few months later, the man to whom he had been rented in Virginia, fearful of being held liable for his replacement value, hired a team of three bounty hunters to hunt him down and return him to Virginia and to slavery. They tracked him to his old neighborhood, where, according to the Pennsylvania Abolition Society, they “assaulted, seized, imprisoned, bound, and carried” him back against his will. In November 1788, a Pennsylvania grand jury indicted them for the crimes of kidnapping and assault.

Not surprisingly at a time when the authority of one state’s laws over citizens of another state was unsettled, the accused men never showed up to face the charges. More than two years later, the governor of Pennsylvania requested their extradition in an effort to bring them to trial. When Virginia’s governor refused, his Pennsylvania counterpart wrote to President Washington requesting federal help in arresting the three accused Virginia men as fugitives from justice. Technically, therefore, this “first interstate conflict over the rendition of fugitives from justice” centered not on the rights of a fugitive slave but on one state’s right to prosecute persons from another state who had crossed its border for the purpose of enslaving a man who, under its laws, was free.

Washington turned first for advice to Jefferson, who passed the problem on to Attorney General Randolph, the man who had recently coached the president on how to skirt Pennsylvania’s abolition law. Randolph, in turn, found both governors at fault. The Pennsylvanian, he thought, had failed to provide “an authenticated copy” of the state law in question and had also failed to provide sufficient evidence that the accused had in fact “fled from . . . justice.” Randolph faulted the Virginia governor as well, who, on advice of his own attorney general, had tried to minimize the gravity of the crime by treating it as an act of “trespass” rather than felonious assault and kidnapping. On Randolph’s advice, Washington asked both governors for more information—in the hope (vain, as it turned out) that they would work things out between them. Instead, the case grew more vexed as aggrieved Virginians accused Pennsylvania abolitionists of a campaign to “seduce” slaves into Pennsylvania—which, they thought, put the seizure of “fugitives” like John Davis in an innocent light as the retrieval of stolen property.

By the fall of 1791, with the dispute heating up, Washington decided to ask the House of Representatives to clarify the mutual obligations of states in cases where accused criminals—a category that included both kidnappers and fugitive slaves—fled from one state to another. The result—composed by a committee of three, two from Massachusetts, one from Virginia—was a draft bill according to which claimants were to apply for an arrest warrant to the governor in the state where the fugitive from justice was known to be hiding. In cases involving criminal defendants, such a warrant could be granted only upon presentation of evidence persuasive to a judge or grand jury. In fugitive slave cases, warrants could be issued on the strength of depositions from “two credible persons.” In neither case was there any provision for the accused to contest extradition, presumably because it was assumed that criminal defendants would be granted due process in the state to which they were returned for trial. As for fugitive slaves, having been identified as such, they would simply be returned to their masters as if they were poached livestock—except that they had poached themselves.

Before the bill came to a vote, it had already become clear that it was aggravating more than alleviating tensions between pro- and antislavery factions, so the House suspended work on it. Among other problems, it made a jumble of state and federal authority by, on the one hand, defining reclamation as a state responsibility while, on the other hand, prescribing fines to be imposed by federal courts on state officials who failed to comply with valid warrants. The effort now shifted to the Senate, where, between March 1792 and January 1793, multiple attempts were made to shape a bill that could command support from southern as well as northern members.

One version provided compensation for slave masters based on how many days a fugitive was delayed from returning to “service.” Another required only a deposition from the claimant in order to initiate pursuit of an accused runaway, while still another required submission of oral testimony or affidavits from at least two persons to a duly empowered magistrate before rendition could be lawfully ordered. Yet another draft proposed a statute of limitations (how long an interval between flight and attempted reclamation was never defined) that would protect persons who might once have been enslaved but who had lived for years in a free community. Through it all, debate went round and round over whether someone helping a fugitive evade arrest must be shown to have done so “knowingly,” “willingly,” or “willfully” in order for the offense to rise to the level of a punishable crime, as well as over how, or by whom, such fine discriminations of intent were to be made.

After almost a year of wrangling, the Senate sent a bill back to the House, which, on February 5, 1793, approved it. It stipulated that the governor of the state from which a fugitive has escaped must provide a certified copy of the indictment to his counterpart in the state to which the slave has fled. Slave owners or their agents were then authorized to seize him, take him before a federal judge or state officer in the sanctuary state, and, by “oral testimony or affidavit,” seek a certificate of removal before taking him back. And while earlier draft language was removed that would have required local officials to do the work of seizure themselves, the bill prescribed a fine of five hundred dollars—an onerous sum at the time—for anyone “who shall knowingly and willingly obstruct or hinder such claimant, his agent, or attorney, in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, his agent or attorney.”

Along the way to a final text, the many revisions and deletions had both hardened and softened it. For some northerners, the result was pure poison. Particularly offensive was the deletion of language forbidding removal to slavery of persons who had been born or had lived for a long period of time in a free state. The proposed bill also failed to ensure the right to legal counsel for fugitives, or to speak in their own defense, or to be tried by a jury. By imposing fines on anyone who would “obstruct or hinder” their capture, it penalized northerners for refusing to perform the morally dubious duty of acquiescence. And it left free black persons vulnerable to kidnapping on the pretext that they had once been somebody’s slave.

Kidnapping scene from Jesse Torrey’s A Portraiture of Domestic Slavery, in the United States, 1817

For many southerners, however, the bill was not strong enough. It stopped short of requiring northerners to take an active role in the chase and capture—although as the legal scholar Paul Finkelman, who has studied the intricacies of fugitive slave law more closely than anyone else, points out, it was a “blessing” for slave owners because it did not leave them dependent on northerners for help in recovering their slaves. Once authorized by the governor of the state from which the fugitive had fled, they or their agents had free rein to travel north and do it themselves.

Whatever its strengths or weaknesses, the 1793 law marked a new chapter in the history of efforts to regulate the fugitive slave problem: it criminalized behavior that had hitherto been largely outside legal constraints. It turned slave owners into outlaws if, as many were accustomed to do, they or their agents ventured north to seize a fugitive without submitting to a cumbersome judicial process. And it turned northerners into outlaws if they refused to cooperate with that process or actively resisted it. Intended to tighten the link between North and South, it had the effect of pushing them further apart, though the extent of the estrangement would not become fully evident for years to come. On February 12, 1793, President Washington signed the bill into law.

In the ensuing decades, as the weakness of the law became evident, two fruitless attempts were made in Congress to strengthen it. In 1801, led by a representative from Maryland, a bill was nearly passed that would have fined an employer for hiring any black person who could not produce a legal certificate proving his freedom. Employers would also have been required to advertise descriptions of newly hired black workers so that slave owners could scrutinize the newspapers to ensure that their absconded property was not among them. In 1817, another failed bill proposed immunizing bounty hunters from prosecution for any crime short of “mayhem or murder” in the state that they invaded in pursuit of runaways.*

For fifty-seven years, the law of 1793 remained the only federal effort to enforce Article 4, Section 2, Clause 3 of the U.S. Constitution. It turned out to have no effect on the fate of John Davis, who, as far as is known, remained enslaved in Virginia for the rest of his life, nor on the three men who forced him there, who were never prosecuted. By the time the second fugitive slave bill was signed into law in 1850, the first federal attempt to manage the problem had come to be regarded in the South as a dismal failure and in the North as a shameful precedent. It was, said Emerson, an effort to affirm “an intimate union between two countries, one civilized & Christian & the other barbarous.” Over the intervening years, a good deal of evidence accumulated to support his contention that there were indeed two countries where the law of the land pretended there was only one.