Unlike human evolution or racial difference, interest was a subject the founders knew a lot about. Madison named the main obstacle that conflicting interests placed in the path toward nationhood when he wrote, in retrospect, that “the States were divided into different interests not by their difference of size, but by other circumstances, the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves.”
The facts bore him out. By the 1780s, the number of slaves in what was about to become the United States was approaching three-quarters of a million, with all but fifty thousand concentrated in the South. Within twenty years, every state north of Delaware was to take judicial or legislative steps to abolish slavery either immediately or on some schedule of future completion, and by the 1780s the process was well under way. In the nation’s first capital city, Philadelphia, the number of slaves had declined since the 1760s from roughly fourteen hundred (in a city of some thirty thousand) to less than half that number by the time of the Revolution. The men who converged there in 1787 faced a daunting problem: how to consolidate a nation in which slavery was the bedrock of the economy and culture in one region but increasingly peripheral in the other.
If we could transport ourselves back to their time, we would be struck by corresponding contrasts between the southern and the northern delegates who came together to try to get the job done. Delegates from the South were accompanied by black valets, cooks, and housemaids, some of whom might have doubled as mistresses, while their northern counterparts traveled alone or perhaps with a free (by comparison) white servant or two. If a northern gentleman chided his southern counterpart for bringing along his slaves, it did not take much wit for the southerner to ask just how, given his scruples, the esteemed gentleman from, say, Connecticut or New Jersey could enjoy his morning molasses or evening smoke, or dress himself in slave-grown cotton, without aiming his revulsion at himself.
Sixty years later, a child’s primer titled The Anti-slavery Alphabet made the point in rhyme:
S is the sugar, that the slave
Is toiling hard to make,
To put into your pie and tea,
Your candy, and your cake.
Here was the basic difference between South and North: not the presence or absence of slavery, but the fact that in the former it was visible everywhere while in the latter it was visible almost nowhere.
Of the fifty-five delegates, twenty-five owned slaves. Three—Franklin, Hamilton, and William Livingston—belonged to abolition societies, but only Livingston had no personal entanglement with slavery. Franklin denounced slavery in print but delayed the emancipation of his own slaves until after his death. Hamilton had married into a slave-owning family and might briefly have owned one or more household slaves himself. “The web of slavery,” as the novelist James McBride puts it, “is sticky business. And at the end of the day, ain’t nobody clear of it.”
Knowing they would not extract themselves from the web anytime soon, the delegates also knew that if they were to agree on how to organize a nation, the dispute over slavery must somehow be deferred—or, to use the parliamentarian term, tabled. This was a challenge for which they were well prepared. Committed to the Aristotelian principle that “the intermediate state is in all things to be praised,” they were natural deal makers. Compromise, as one might say today, was in their DNA.
In matters of religion, this meant they were tolerationists. Some were sincerely Christian, others nominally so, but all agreed—or at least professed to agree—with the political philosopher John Locke that “if men were better instructed themselves, they would be less imposing on others.” They were acutely aware that in the Old World a toxic combination of established religion and suppression of dissent had produced endless strife. They doubted that any one creed had a monopoly on truth. From these convictions arose the novel American principle of separation of church and state.
In politics, they believed in what Jefferson called “temperate liberty”—the virtuous moderation required of a republican citizen, by which private wants are willingly subordinated to the public good. Yet if they credited human beings with a capacity for reason and sympathy, they were also inclined to believe that all people were liable to sink into rank selfishness. As a boy in Boston, Franklin had been impressed by the Puritan preacher Cotton Mather, who privately admonished him to “stoop” in humility “as you go through” the world rather than strut through it in pride. Madison, as a student at Princeton, had imbibed the neo-Calvinist theology of its late president Jonathan Edwards, who delivered what is still probably the most famous sermon in American history, “Sinners in the Hands of an Angry God,” and whose books on will and virtue remained in Madison’s personal library all his life.
The founders belonged to the secular Enlightenment, but they retained more than a trace of what Edwards called “the Great Christian Doctrine of Original Sin.” They believed that a just and stable government must take account of the human propensity to coerce and exploit others. Such a government must be flexible enough to adapt to the ebb and flow of contesting passions. It must occupy a middle ground, even though the ground was always shifting. They believed, too, with the British philosopher and statesman Edmund Burke (who sympathized with the American Revolution) that “all government—indeed every human benefit and enjoyment, every virtue and every prudent act—is founded on compromise and barter.” Hamilton had a shorter phrase for the same idea: he called it the “prudent mean.”
This was the core idea of the Constitution. It underlay the concept of mixed government, in which power would be distributed among legislative, executive, and judicial branches—thereby, its authors hoped, blunting the inevitable quest for power by one faction over another. The national legislature would be bicameral, with the lower house based on the principle of proportional representation while the upper house (the Senate) gave each state equal voice regardless of the relative size of its population. The executive (the president) would stand apart from and above the legislature but would also be constrained by it. The Supreme Court would be independent—empowered to review both state and federal statutes to ensure their consistency with constitutional principles, and to do so, in theory at least, in a disinterested spirit.* And the Constitution even provided for its own revision by allowing for amendment through a process that was deliberately designed to be difficult and slow.
All these checks and balances were well and good, but how, on the question of slavery, could a “prudent mean” be achieved? In the decade since Jefferson had tried to inject a condemnation of the slave trade into the declaration, tension over slavery had only increased. Gouverneur Morris, a native New Yorker who represented Pennsylvania at the convention, declared that slavery was “the curse of heaven on the states where it prevailed.” Two weeks later, Charles Pinckney of South Carolina, younger cousin of Charles Cotesworth Pinckney, retorted by estimating that “in all ages one half of mankind have been slaves” and called slavery a blessing “justified by the example of all the world.”
As usual, the Virginians were caught in the cross fire. Washington, who chaired the convention, once confessed, “I wish from my soul that the legislature of this state [Virginia] could see the policy of a gradual abolition,” adding hopefully that such a policy “would prevent much future mischief.” Jefferson (absent from the proceedings while serving as American minister in Paris) expressed deeper foreboding. “I tremble for my country,” he wrote about slavery, “when I reflect that God is just: that his justice does not sleep forever.”
In 1784, Jefferson attacked the Atlantic slave trade again in the form of a proposal for its prohibition to the Continental Congress (now known as the Confederation Congress), but the bill fell short of approval by one state. The South Carolinian Charles Cotesworth Pinckney dismissed that proposal as selfishness dressed up as altruism. “Virginia,” he sneered, “will gain by stopping the importations. Her slaves will rise in value, & she has more than she wants.” The question of the future of slavery pitted not only North against South but the South against itself.
Among the issues confronting the delegates at Philadelphia, one of the most pressing was how explicit—pro, con, or studiously neutral—the Constitution should be about slavery. Ultimately, the framers produced a text so filled with euphemism and circumlocution that politicians and historians have argued ever since about what its authors really intended to say on the subject. Although it has often been noted that the word “slavery” appears nowhere in the document, we are left with a “curious silence to explain: the refusal to mention the word.” The fact that the word was used in the course of debate makes its absence from the final document all the more striking, and there has never been a consensus about why.*
Seventy years after the adoption of the Constitution, Abraham Lincoln gave his view on this question. By excluding the contested word, he said, the founders had “hid slavery away, in the constitution, just as an afflicted man hides away a wen or a cancer, which he dares not cut out at once, lest he bleed to death; with the promise, nevertheless, that the cutting may begin at the end of a given time”—though they never disclosed a date for performing the operation. Frederick Douglass disagreed, aligning himself instead with his first political mentor, William Lloyd Garrison, who decried the Constitution for its tacit protection of slavery as a “covenant with death” (a phrase, as the scholar Manisha Sinha has recently discovered, that previously had been used by the black abolitionist James W. C. Pennington, who was, like Douglass, a fugitive from the South). But a few years later, Douglass broke with Garrison and adopted a view closer to Lincoln’s and that of the new Republican Party. “If in its origin,” he wrote in 1863, “slavery had any relation to the government, it was only as the scaffolding to the magnificent structure, to be removed as soon as the building was completed.”
Whichever side one takes on the question of how the founders and their followers imagined the ultimate fate of slavery, the Constitution certainly protected it in several significant ways. Everyone understood what was intended by Article 1, Section 9, Clause 1: “The Migration or Importation of such Persons as any of the States now existing 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.”
Some delegates favored an immediate ban on the Atlantic slave traffic, while others opposed any ban at any time and swore they would “never receive the plan if it prohibits the slave-trade” now or ever. Even the planters of South Carolina, which had recently imposed a two-year pause in the importation of slaves in response to falling commodity and slave prices, were divided over whether to continue or curtail the trade. But by 1788, Charles Cotesworth Pinckney was warning that without a reliable supply of fresh slaves “South Carolina would soon be a desert waste.”
Even though the Constitutional Convention reached a deal that would postpone prohibition for twenty years, howls of protest arose from Georgia as well as South Carolina that “Negroes were our wealth, yet behold how our kind friends in the north were determined soon to tie up our hands, and drain us of what we had!” James Wilson of Pennsylvania, recommending ratification of the Constitution to his state’s legislature, singled out the slave-trade clause for special praise: “I consider this as laying the foundation for banishing slavery out of this country.” Many years later, in a brief on behalf of a fugitive slave whom he was defending in court, John Jay’s grandson remarked that “great was the disgust” of his grandfather’s generation at permitting the Atlantic slave trade to continue even for a moment—yet, in the hope that compromise would prove to be a step toward slavery’s extinction, they agreed to tolerate the trade for a limited time.
Meanwhile, if anything else was to get done, another question had to be settled: How should slaves be counted for the purpose of calculating the number of representatives from each state in the lower house of Congress and for computing taxes that might be levied by the federal government on the states, based on their population? It is often mistakenly said that the eventual answer—the notorious “three-fifths” compromise (Article 1, Section 2, Clause 3)—implied that a black slave was equivalent in some existential sense to three-fifths of a free white person:
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.
In fact it would have been in the interest of slave states to count slaves as whole persons because the South would thereby have increased its number of seats in the House of Representatives. The North would have preferred to count each slave as a smaller fraction of a person (early in the negotiations one-half was proposed) or not at all, which would have reduced the number of southern seats in the House. Like the temporary proscription of action against the slave trade, the three-fifths rule was a compromise accepted with reluctance by both sides.* It was achieved in part because while slave states conceded that slaves were not full persons for the purpose of determining congressional representation, they benefited from a commensurate reduction in federal taxes that might be levied against them based on their total number of eligible inhabitants.
Both deals were instances of what Du Bois, in his remarkably evenhanded account of the proceedings, called “log-rolling.” The authors of the Constitution might have been, as Jefferson called them, an “assembly of demi-gods,” but they were much more like the grousing gods of ancient Greece than the all-knowing god of Christianity. They performed their divine work not only in the Convention Hall but also over stew and grog in the proverbial smoke-filled rooms of hostelries and taverns. And as so often in American history, a political bargain struck by white people came at the expense of black people, for whom there was no seat at the table.
Before a final text was settled on, one more issue concerning slaves remained to be decided: What was to be done with those who ran away?
This was a question to which the recent war had given new urgency. Even Great Britain, with all its military might, had found it no simple matter to wage war across the Atlantic. So in addition to payments for mercenaries and pardons for criminals at home in exchange for enlistment, a strategy was developed to turn the rebels’ slaves against them.
The first official proclamation promising freedom to slaves in exchange for deserting their masters and aiding the loyalist cause came in the summer of 1776 from Virginia’s royal governor, Lord Dunmore, who, with mob violence breaking out against British officials, had fled to safety aboard a Royal Navy frigate off the coast from Norfolk. John André, a British officer of high social polish and higher self-esteem who would be hanged in 1780 as an accomplice of Benedict Arnold’s in the plot to surrender West Point, was convinced that the emancipation strategy would be both easy and effective. “We need not seek” the rebels’ human property, he believed, because “it flies to us” on its own accord, and once slave owners are left helpless to till their land and reap their crops, “famine follows.”
Three years later, in June 1779, with the war going badly for the British, Sir Henry Clinton, commander of British forces in North America, extended the offer of freedom to all slaves except those owned by masters loyal to the crown. That these policies were more a matter of military strategy than moral conviction is attested to by the fact that in some areas where fugitives became too numerous for the British to manage, Clinton ordered them returned to their masters.
The scholar who pioneered the study of the Revolutionary War experience of African Americans, Benjamin Quarles, has remarked that “slaves had been running away a century and a half before the Revolution, but what in peacetime was a rivulet became in wartime a flood.” As is often the case in the story of fugitive slaves, their flight had unforeseen consequences. Not only did slave enticement by the British prove insufficient to turn the tide of war, but by inflaming the colonists, it helped to snuff out “whatever loyalty there was” in the South and left a legacy of racial fear that lingered long after the war was over.
Some of the fear was deliberately stoked by the colonists themselves—and not only by southerners. Franklin, serving as ambassador to France in 1779, collaborated with the Marquis de Lafayette on designing a children’s book (never published) intended to “impress the minds of Children and Posterity with a deep sense” of British barbarism. One of the planned illustrations was to depict
Dunmore’s hiring the Negroes to murder their Master’s Families.
A large House
Blacks arm’d with Guns and Hangers
Master and his Sons on the Ground dead,
Wife and Daughters lifted up in the Arms of the Negroes as they are carrying off.
According to Jefferson, some 70,000 slaves fled to British lines in search of freedom between the outbreak of hostilities in 1775 and the British surrender at Yorktown in 1781. Some modern historians put the number closer to 100,000. These estimates may be high, especially considering that many of the runaways were re-enslaved, but whatever the true number, the flight from slavery during the Revolutionary War has been plausibly described as “the largest unknown slave rebellion in American history.” Along the coastal waterways of Maryland, Virginia, and the Carolinas, slaves cut boats loose from their moorings or stole them from untended barns, then sailed, rowed, or paddled to British naval vessels cruising close to shore. Farther inland, slaves caught in the chaos of battle, including some owned by signers of the Declaration of Independence, were pressed into service by British troops.*
Hundreds of miles to the north, New York City became “a haven for fugitive slaves” during the British occupation, which lasted from September 1776 until the end of the war. After defecting to the British, Benedict Arnold led a series of raids through Virginia in early 1781, dispatching his troops to ransack rebel plantations (including the Byrd family seat at Westover), after which one contemporary reported that “the infatuation” of the slaves “was amazing: they flocked to the Enemy from all quarters, even from very remote parts.” With its “vast Concourse of runaway Negroes,” the Revolution offered a shocking preview of what it would mean if the edifice of slavery were to collapse.
Removed as we are today from these events by nearly two and a half centuries, we tend to think of the Revolution as a sort of costume drama—a decorous affair conducted by men in three-cornered hats brandishing sabers or clumsy muskets at one another with little risk of mutual harm. In fact it was a bloody and brutal war. On the rebel side alone, some twenty-five thousand died during military service from wounds, disease, and starvation. And like all subsequent wars, it opened fissures not only between the enemies but among those who made the alliance by which the war was won. After the fighting was done, no question was more divisive among the victors than the future of slavery. One purpose of the postwar negotiations not only with Britain but also among the colonists themselves over the terms of their proposed Constitution was to put the genie of the runaway slave back in the bottle.
This was easier said than done. Could former owners hope to retrieve slaves who had fled to Canada, Newfoundland, or Nova Scotia? If so, how? George Washington, among others, doubted the former and threw up his hands at the latter. “Slaves which have absconded from their Masters,” he lamented to another signer of the Declaration of Independence, Benjamin Harrison, “will never be restored to them,” because there are too “many doors through which they can escape.”
Washington’s pessimism was well-founded. “Numberless difficulties” stood between identifying and apprehending escaped slaves, and the British, in no mood for reconciliation, were guilty, according to one Virginian, of “a glaring piece of injustice” in failing to honor the terms of the peace treaty signed in 1783. That treaty included a clause—added belatedly by the sole southern delegate to the negotiations, Henry Laurens of South Carolina—prohibiting imperial forces from “carrying away any negroes or other property of American inhabitants” in the course of their withdrawal. But “carrying away” was an ambiguous phrase, and because no one could draw a precise distinction between coerced defection and voluntary flight, it was an ambiguity of which the British took advantage.
When Sir Guy Carleton, commander in chief of His Majesty’s forces in North America, made no serious effort to round up refugee slaves as part of the postwar settlement, the normally temperate James Madison condemned his inaction as “scandalous.” Others among the founders took a different view—notably Alexander Hamilton, who had grown up on the West Indian “sugar island” of Nevis, where black slaves outnumbered white colonists by eight to one.* Hamilton’s mother, accused by her husband of committing multiple adulteries, had been incarcerated in a prison to which blacks charged with crimes were taken for shackling and sometimes castration. As a child, Hamilton had seen teams of slaves lashed in the streets as if they were horses whipped in order to quicken their trot. During the war, he served as aide-de-camp to Washington and afterward felt it would be unconscionable to re-enslave people who had been promised freedom, whether by the colonists or the British:
In the interpretation of treaties, things odious or immoral are not to be presumed. The abandonment of negroes, who had been induced to quit their masters on the faith of official proclamations, promising them liberty, to fall again under the yoke of their masters and into slavery is as odious and immoral a thing as can be conceived. It is odious not only as it imposes an act of perfidy on one of the contracting parties, but as it tends to bring back to servitude men once made free.
Congress tried nevertheless to induce the British to honor their stated obligations or, if recovery of escaped slaves could not be accomplished, at least to provide slave owners with some form of compensation. As postwar negotiations dragged on, the failure to resolve the issue sowed suspicion in the South not only toward the British but also toward the two northern diplomats who had negotiated the postwar settlement—John Jay, president of the New York Manumission Society, and John Adams of Massachusetts—who, unlike their colleague Laurens, never had their hearts in the business of slave reclamation.
Despite his personal feelings, Jay recognized that the question of wartime runaways created an ominous dilemma. In language close to Hamilton’s, he reported to Congress in 1786 that it would be “cruelly perfidious” to return slaves to their former masters—not only because, in his view, slavery itself was a violation of human rights, but because recaptured slaves would be subject to vengeful punishment if forcibly returned to those from whom they had run. Notwithstanding these objections, Jay took the view that Britain was bound by the law of nations to uphold the treaty.
The result was a moral and political problem of which a variant would haunt the Republic for years to come: if escaped slaves were returned in accordance with the requirements of law (in this case the treaty with Britain), a “great wrong” would be done “to these Slaves, and yet” if justice prevailed over an unjust law, a wrong would be done “to their Masters.” In a preview of many subsequent attempts—all of which failed—to find a middle way between law and justice, Jay suggested compensating slave masters for their losses. “No price can compensate a Man for bondage for life,” he told Congress, “yet every Master may be compensated for a runaway Slave.” Perhaps in principle it was a fair proposal, but given the British disinclination to act on it and the slave owners’ fear that it would open the door to broader emancipation, it was, in practice, pointless.
Memories of war were still fresh when the delegates to the Constitutional Convention turned directly to the fugitive slave issue in August 1787. That same summer another critical meeting was taking place one hundred miles north in New York, where the Confederation Congress had taken up the question of how to organize the immense territories northwest of the Ohio River. These lands had recently been ceded by the existing states to the federal government under the Articles of Confederation, and the time for decision about their governance was at hand.
On July 13, the Congress—which included some members, notably Madison and Hamilton, who shuttled between New York and Philadelphia to participate in both meetings—approved what came to be known as the Northwest Ordinance. This was a plan for creating new states, each of which would be eligible for admission to the Union once its population reached sixty thousand persons. In these future states, slavery was to be forbidden.
Although it was a representative from Massachusetts, Nathan Dane, who initially proposed to Congress that slavery be prohibited in the Northwest Territory, he met no significant opposition from southerners, who had reasons—wariness of competition in producing crops such as tobacco and indigo; eagerness to encourage settlement that would generate trade through southern ports—for favoring it. In one sense, a great principle was at stake, the principle that slavery had no place in “countries which have been talked of, which we have boasted of, as asylums for the oppressed of the earth.” But this was also another instance of logrolling—a trade-off between keeping slaves out of territories assumed to be “principally for New England settlers,” most of whom had no interest in slave owning, while permitting them in western lands recently ceded by North Carolina (eventually to become the state of Tennessee), where slavery was already established.
Nor was it the only trade-off within the larger territorial bargain. If the new territories and, subsequently, the states to be formed from them were to be closed to slavery, slave owners required assurance that their slaves could not gain freedom by taking themselves there. Excluding slavery from some parts of the nation must go hand in hand with providing means for the rendition of fugitive slaves to the parts where it still existed. In the language of the Northwest Ordinance,
any person escaping in to the [free territories], from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her service as aforesaid.
While Congress was dealing with the issue of fugitives in the Northwest Territory, the Constitutional Convention took up the related issue of persons accused of a crime in one state who fled to another. The Committee of Detail, charged with submitting draft language to the whole convention, proposed a clause that would require every state in the new republic to return persons to the state where such crimes had allegedly taken place:
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.
This was, in effect, an intra-national extradition treaty. But it was not strong enough to satisfy Charles Pinckney, who, most likely aware of what Congress had decided in New York, requested that “some provision should be included in favor of property in slaves” so that fugitives, whom he regarded as having stolen themselves from their owners, would be treated like any other thief or malefactor. Joining him was his cousin Charles Cotesworth Pinckney as well as his fellow South Carolinian Pierce Butler (Frederick Douglass later called the latter two a pair of “illustrious kidnappers”), who, on August 28, 1787, moved to add a phrase requiring “fugitive slaves and servants to be delivered up like criminals.” At this, Roger Sherman of Connecticut protested that there was “no more propriety in the public seizing and surrendering a slave or servant than a horse.” Wilson of Pennsylvania objected, too, on the ground that states where few citizens owned slaves should not be expected to provide protection for out-of-state slave owners at taxpayers’ expense. With courteous alacrity, Butler withdrew his proposal in order to ponder a revision.
The next day he offered slightly modified language, and without further debate it was added as a separate clause to the wording previously submitted by the Committee of Detail:
If any Person bound to service or labor in any state of the United States shall escape into another State, He or She shall not be discharged from such service or labour in consequence of any regulations in the State to which they escape; but shall be delivered up to the person justly claiming their service or labor.
Thus the substance of what would become the fugitive slave clause was accepted without dissent.
In return, southern delegates gave up their insistence on a two-thirds majority in both House and Senate for passage of “navigation acts”—restrictions, that is, like those previously imposed by the British—which could limit trade to American ships and, by suppressing competition from carriers of other nations, would increase the cost of trade on which the South depended. The southern concession on this point (one historian counts it among “the Convention’s most successful horse-trades”) might have helped ease the way for new language aimed specifically at fugitive slaves. The earlier language concerning persons “charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State” was retained as a separate clause (Article 4, Section 2, Clause 2) immediately preceding the new statement about persons “bound to service or labor.”
By early September, the job was almost done. But before the finished text of the Constitution was put to a vote by the entire convention, the Committee of Style subjected the new clause to one more round of revision. The gender pronouns (“He or She shall not be discharged”) were dropped, perhaps because it seemed unwise to call attention to the fact that women and girls would be vulnerable to forced rendition. The word “justly” was also struck out, perhaps because it invited challenges to the justice of a slave master’s claim. And, as if to stress the presumed validity of such a claim, the word “due” was added:*
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.
This final draft (Article 4, Section 2, Clause 3) seems to have been regarded as a commonsense clarification rather than a departure from precedent—so eminently sensible, in fact, that it “became a part of the Constitution with virtually no discussion of its exact meaning or potential application.”
On September 17, thirty-nine of the original fifty-five delegates approved the finished document, including the thrice-revised fugitive slave clause. Among those who did not sign, most had left the convention for reasons of failing personal or family health. Among those still present, some declined to sign because they regarded the document as incomplete without a bill of rights. Others felt that the Constitution empowered the federal government excessively at the expense of the states. Of those who demurred, several came around to supporting it later, and among the stated reasons for refusing to sign, not a single objection to the fugitive slave clause was recorded.
Why did this part of the Constitution, which was to prove so incendiary and eventually explosive, pass without objection after barely a pause for “speedy, even collegial” debate? For one thing, there was a long line of precedents behind it, reaching back to the 1640s when the early New England colonies agreed that “if any servant run away from his master into any other of these confederated Jurisdictions,” he “shall be delivered” to his master upon “due proof.” More immediately, both pro- and antislavery delegates considered it a self-evident truth that if the new nation was to include states permitting slavery as well as states forbidding it, slave owners must have legal recourse should their human property flee from the one to the other.
Nearly twenty years later, John Adams went so far as to say that southerners consented to the Constitution because joining a nation whose states pledged allegiance to the laws of other states (Article 4, Section 1: “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state”) would actually improve the security of their slaves. From the southern point of view, a union in which fugitives from one state could not find refuge in another state marked an improvement over a loose confederation of semi-sovereign states with varying rules of extradition. The plain fact was that by joining the nation, slaveholders were more likely to get their runaways back. “Were they not restrained by their Negroes,” Adams wrote to his son John Quincy Adams in 1805, “they would reject Us from their Union, within a Year.” In short, the South chose to become part of the United States less out of desire to join the Union than out of fear of what might befall it if it remained outside.
Adams might have overstated the case, but his basic point was sound. In 1819, Pennsylvania’s chief justice, William Tilghman (born in 1756), made much the same point as if it were obvious to anyone with personal memory of the founding. “Whatever may be our private opinions on the subject of slavery,” he wrote, “it is well known that our southern brethren would not have consented to become parties to a Constitution . . . unless their property in slaves had been secured.”
Looking back from the 1850s, the antislavery Virginian Edward Coles described what amounted to a coordinated compromise between the Congress in New York and the Constitutional Convention in Philadelphia. “The distracting question of slavery,” he wrote in 1856,
was agitating and retarding the labours of both, and led to conferences and inter-communications of the members, which resulted in a compromise by which the northern or anti-slavery portion of the country agreed to incorporate into the Ordinance and Constitution the provision to restore fugitive slaves; and this mutual and concurrent action was the cause of the similarity of the provision contained in both, and had its influence in creating the great unanimity by which the Ordinance passed, and also making the constitution the more acceptable to slaveholders.
Also writing in the 1850s about the Northwest Ordinance, Missouri’s senator Thomas Hart Benton, who had once favored slavery expansion but now opposed it, agreed:
The first clause prohibiting slavery in the Northwest territory, could not be obtained without the second, authorizing the recovery of slaves which should take refuge in that territory. It was a compromise between the slave States and the free States, unanimously agreed to by both parties, and founded on a valuable consideration—one preventing the spread of slavery over a vast extent of territory, the other retaining the right of property in the slaves which might flee to it.
Without an accommodation for returning fugitive slaves, there would have been no prohibition of slavery. The latter logically required the former.
The same assurance was needed in Philadelphia—a need so clear to all sides that opposition to the fugitive slave provision of the Constitution never amounted to more than a few grumbles. In fact, by comparison to the Northwest Ordinance, the constitutional guarantee offered to slave owners concerning fugitives was stronger. Where the ordinance used the language of permission (“may be lawfully reclaimed”), the Constitution used the language of command (“shall be delivered up”).
Benton, a close student of constitutional history, reiterated Coles’s point that the authors of the two documents had worked in concert:
The right to recover fugitive slaves went into the constitution, as it went into the ordinance, simultaneously and unanimously; and it may be assumed upon the facts of the case, and all the evidence of the day, that the constitution, no more than the ordinance, could have been formed without the fugitive slave recovery clause contained in it. A right to recover slaves is not only authorized by the constitution, but it is a right without which there would have been no constitution.
Neither Thomas Hart Benton nor Edward Coles was an entirely reliable source for what had happened or why. Benton, born in 1782, had been a child at the time of the founding. Coles, born in 1786, had been an infant. And like all historical writing, their versions of the past reflected their preoccupations in the present. At the time they were writing, in the 1850s, the fugitive slave question was again driving the sections apart. Coles, who had known several of the founders and was an admirer of Lincoln’s, based his account on what he claimed were personal communications from Madison, whom he had once served as personal secretary and who lived until 1836. Benton, whose life also spanned the whole history of the nation, felt he was witnessing late in life a repeat of the nation’s early history. He believed that resolution of the fugitive slave problem was less likely this time around, and while he supported the new fugitive slave law as part of the Compromise of 1850, he doubted it would work.
Looking back today at the nation’s founding from our own vantage point, we can hardly know any better than Coles or Benton what would have happened if the southern demand for a fugitive slave clause had been refused during the drafting of the Constitution. We cannot know, as one historian puts it, whether the South was “really willing to take the risk of walking out of the Convention and remaining outside a union of American states. But we do know that the Northern delegates were not willing to call their bluff.” Perhaps their unwillingness was cowardice, or perhaps it was prudence. In either case, it seemed clear to northerners and southerners alike that if there had been no provision for recovering fugitive slaves, there would have been no nation. So the deal was struck.
If ever there was a deal in which the devil was in the details, this was it. The resolution of the fugitive slave problem turned out to be no resolution at all because, on the details, the founders had nothing to say.