The Constitution and the Underground Railroad: How a System of Government Dedicated to Liberty Protected SlaveryRoundup
tags: slavery, Underground Railroad, Fugitive Slave Act
Paul Finkelman, Ph.D. is the President of Gratz College in greater Philadelphia. He is the author of more than 50 books and hundreds of articles. His most recent book, Supreme Injustice: Slavery in the Nation’s Highest Court was published by Harvard University Press in 2018.
On August 28, 1787 two of South Carolina’s delegates to the Constitutional Convention, Pierce Butler and Charles Pinckney, suggested a new provision for the draft constitution. The Convention had been debating the new form of government for more than three months. Throughout the summer there had been lengthy and acrimonious debates over how slavery would affect the new form of government. Southerners had demanded, and won, numerous provisions to protect the system of human bondage.
No other social or economic institution received such special treatment. In the three-fifths clause the new Constitution counted slaves to determine representation in Congress, thus increasing the power of the slave states in the House of Representatives and in the electoral college. The Constitution empowered Congress to regulate all international trade, except the African slave trade, which could not be abolished by Congress for at least twenty years. Congress and the states were prohibited from taxing exports, which protected the tobacco and rice grown by slaves. In two different places the Constitution promised that the national government would suppress “domestic Violence” and “Insurrections” which for slaveowners meant only one thing: slave rebellions.
Now Butler and Pinckney demanded that “fugitive slaves and servants” should “be delivered up like criminals” if they escaped into other states. Some northern delegates mocked this demand, asking why their states should spend money and time helping southerners hunt down their “property.” The South Carolinians withdrew their proposal, but that evening there must have been intense conversations among the delegates. The next day, without any more debate or even a formal vote, the Convention approved what became Fugitive Slave Clause.
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.
Avoiding the word slave, the clause appeared to mean that if a slave escaped to a free state, the free state could not free that person, and any fugitive who was found would be turned over to the person who claimed ownership of the slave. This clause appeared in Article IV of the Constitution, which regulated relations between the states. Thus, the language of the clause and its structural placement implied that this was something that the states would have to work out among themselves.
During the debates over ratification, anti-slavery northerners complained about the slave trade provision and the three-fifths clause, but overlooked the fugitive slave clause. No northerners saw its potential to harm their neighbors or that it might disrupt their society. However, southern federalists pointed to the clause as a reason to ratify the Constitution. General Charles Cotesworth Pinckney (whose younger cousin had introduced the clause) bragged to the South Carolina state legislature: “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.” Similarly, at the Virginia convention Edmund Randolph quoted this clause to show that the Constitution protected slavery. He noted that “Everyone knows that slaves are held to service and labor.” He argued that under the Constitution “authority is given to owners of slaves to vindicate their property” because it allowed a Virginian to go to another state and “take his runaway slave” and bring “him home.”
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