No person held to Service or Labor 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.
The above quote comprises a part (Article 4, Section 2, Clause 3) of the United States Constitution—that ringing call for freedom, unity and Republican government we have all been taught to revere—that contains several things worth noting. First, though it is known as the Fugitive Slave Clause, neither the word “slave” nor “slavery” is ever mentioned. We see the word “person” and we see the words “Service of Labour” but we don’t see “slavery” either here or elsewhere in our founding document. This indicates, as Andrew Delbanco in his new book, The War Before the War: Fugitive Slaves and the Struggle for America’s Soul Before the Civil War(Penguin: 2018), emphasizes, that there was a certain delicacy or reticence (shame?) on the part of the Founding Fathers where slavery was concerned. That’s probably because of the 55 delegates to the Constitutional Convention, no less than 25 of them were slave owners, including those great fathers of freedom, Washington and Jefferson. So, as Washington himself knew (during the revolution, he had asked for help tracking down his own wayward slaves, worried that Tories would take his escaped slaves with them to the British side), the problem for southern states especially, in their decision to join the Union, was whether or not they could recover that mobile “property” that made up so much of their wealth. In fact, more than ½ million of the new nation’s 3 million people were slaves, and in the five southern colonies, “slaves accounted for two in every five persons” (45). Moreover, Delbanco quotes historian Eric Foner to the effect that by the 1850s, the economic value of “enslaved men, women and children when considered as property exceeded the combined worth of all the banks, factories and railroads in the United States” (26-7). So when the Founding Fathers wrote the Constitution, there wasn’t much argument or even discussion about the Fugitive Slave clause, nor about notprohibiting “the Migration or Importation of such Persons as any of the States now existing shall think proper to admit” (Art. 1, Sect. 9, Clause 1), i.e. importing more slaves, nor about the now-infamous three-fifths compromise—which provided that representation for those slave states could be padded by adding to the number of “free” persons “three-fifths of all other persons.” Because even though the “persons” in question were considered to be equivalent to cattle where their rights and well-being were concerned, they were still numerous enough for the slave states to want to use them to achieve “fair” representation. And this gets to a wonderful distinction (or contradiction) discussed by James Madison: that though slaves may be “classed with those irrational animals which fall under the legal denomination of property,” at the same time “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…as a moral person, not as a mere article of property” (87). Which meant not only that slaves were held accountable to the law for their actions, but that slave owners were exemptfrom responsibility for what their “property” did, since that “property” was considered fully capable of exercising free will—which was human.
Of course, the problem with these “properties who were human” was that they also had the disturbing inclination to want to be free. And so, many escaped from their bondage in the southern states to the north (though it should be emphasized that northern states were nearly as racist and discriminatory towards Africans as their southern neighbors; hence (128) “Connecticut restricted the franchise to white males in 1818, a year earlier than Alabama”). And this was the problem that southern states fretted and fumed over, insisting on the passage of several additions to the Fugitive Slave Clause to make it easier to reclaim their “property.” The first was the 1793 Fugitive Slave Act, signed by Washington himself. It authorized a slave owner’s agent to “seek rendition of his property in federal or state court” and fined anyone who obstructed with this return of a runaway (20). But this didn’t stem the tide, especially when several northern states enacted “personal liberty laws” to help protect the fugitives who increasingly sought safety there. These laws—in states from Vermont to Pennsylvania, from Michigan to Wisconsin—allowed escaped slaves to contest their capture not just physically, but in jury trials, a process that slave owners ringingly denounced as “unconstitutional.” And so, the issue ultimately came to the Supreme Court, where Chief Justice Joseph Story in March 1842, ruled in the case of Margaret Morgan, a slave who had fled in 1832 to Pennsylvania to join her free black husband. This induced, in 1837, a white woman from Maryland who had inherited both Margaret and her children, to hire Edward Prigg to arrest Margaret as her property and take her back to Maryland with her children. But since Pennsylvania’s personal liberty law allowed the state to charge Prigg with kidnapping, he was arrested, tried and convicted, and it was this case that made it to Justice Story’s court. Faithfully following the Constitution, Story ruled that Pennsylvania’s (and therefore all) personal liberty laws were unconstitutional, and affirmed the right of slave masters to recover their escaped slaves from free states. But he left a little loophole: those northern states could make laws forbidding their authorities to assist slave catchers, thus making the recovery of fugitive slaves much more difficult, if not impossible.
This is how the situation stood just before the Civil War, though several more fugitive slave cases, and several books—notably Frederick Douglass’ Narrative of his life, and Harriet Beecher Stowe’s Uncle Tom’s Cabin—added fuel to the fire. So did the continual addition of new states in the West, particularly that of Texas, which in late 1845 was approved for entry as a slave state, the 16thslave state out of 28 states overall. So, too, did the waiting states “acquired” by the U.S. after the Treaty of Guadalupe-Hidalgo ended the Mexican War in February of 1848—which added to the United States “an area almost twice as large as the Northwest Territory” in an expansion that comes to no less than 30% of the present-day United States. Whether those states entered as slave or free mattered critically to the expansion of the South’s “peculiar institution” because raising cotton so depletes the soil that new lands for cultivation, and thus slavery, were constantly required. Seeing the writing on the wall, the great abolitionist, William Lloyd Garrison, called for the immediate dissolution of the American Union, a union he said was based “on the prostrate bodies of three millions of the people, and cemented with their blood” (218). On the other side, of course, was John C. Calhoun, South Carolina’s senator and a former vice-president, and he had a theory which he claimed justified slavery—the “mud-sill” theory. Here’s how Calhoun put it:
In all social systems there must be a class to do the menial duties, to perform the drudgery of life. That is, a class requiring but a low order of intellect and but little skill. Its requisites are vigor, docility, fidelity. Such a class you must have, or you would not have that other class which leads progress, civilization, and refinement. It constitutes the very mud-sill of society and of political government;and you might as well attempt to build a house in the air, as to build either the one or the other, except on this mud-sill. Fortunately for the South, she found a race adapted to that purpose to her hand(240; emphasis added).
I think that’s very cute. So, obviously, did many southern gentlemen, who continued to press for slave states to be admitted, and continued to press for laws making it easier to return their fleeing slaves. They managed to get yet another Fugitive Slave Act passed, this one in September of 1850, which denied whatever was left of the Bill of Rights to escaped slaves: denied habeas corpus; denied them the right to testify in their own defense; denied them trial by jury; denied them presenting exonerating evidence such as having been raped by their masters; criminalized sheltering a fugitive; required local authorities to help in their capture and return; and gave the power to extradite them to Federally-appointed commissioners.
Still, slaves kept escaping and abolitionists and freed slaves in the north kept increasing their commitment to defending them, and even attacking those who tried to apprehend them. Cases like that of Margaret Garner only added to their commitment, for the pregnant Garner, having escaped from Kentucky over the Ohio River in 1856 with her husband and four children, was so desperate when slave catchers and U.S. Marshals tracked them all down that she “took a kitchen knife and cut the throat of her two-year-old daughter, then slashed at her 3 surviving children, trying to kill them too rather than leave them to the life of degradation she had known” (319). No matter: the judge ordered her rendition back to Kentucky, whereupon she was sold, and died in Mississippi two years later. She was later immortalized in Toni Morrison’s novel, Beloved.What her case and other cases made clear was that the values of emancipation of slaves held by much of the north, and the continuation of chattel slavery held by the south could never be reconciled peacefully. They could only be settled by war.
Yet thought the pre-war years brought a kind of de facto emancipation, President Lincoln still clung to the hope that “border states would join the Union, and therefore, no emancipation would be needed” (363). Indeed, Lincoln in March of 1862, with the war imminent, even sent a message to Congress “recommending a program of compensatedemancipation,” intending to compensate slave owners for their financial losses of slaves, to resolve the situation. Delbanco quotes the reaction to this recommendation by the abolitionist Thaddeus Stevens, who derided it as “the most diluted, milk and water gruel proposition…ever given to the American nation” (366). Which indeed it was. No matter. Within days, Lincoln signed on to the article of war introduced into Congress, and added the penalty of court-martial for any officer who sent fugitive slaves back to their owners. Then, once Lincoln had the cover of a major victory for the Union troops (which came at Antietam Creek), he issued his formal Emancipation Proclamation on January 1, 1863. By the end of the war, more than 400,000 former slaves were being protected by Union troops, and on June 28, 1864, the Fugitive Slave Law was finally repealed by Congress.
Still, Delbanco is passionate about what slavery meant and still means to this nation. In one of his most moving passages, he writes:
There is no calculating the unsettled debts of slavery. Since the Civil War, black Americans have been subjected to more than a century and a half of ingenious variations—if not quite replications—of the lethal assault to which they had been subjected by slavery itself. There is no enumerating them (385).
‘No enumerating them,’ Delbanco says, but he tries, and they include “the forced labor system that took hold after Reconstruction in the South…chain gangs, uncompensated workers into mines, lumber camps, quarries, farms, and factories.” They also include the “millions excluded from social welfare programs after the Great Depression…de jure and de facto segregation…the gross disproportion of young black men languishing in prisons…and daily insults to self-respect delivered to black Americans for no other reason than the fact of their blackness” (ibid). We might add the not-so-hidden evidence in our current political climate of an enduring and pervasive racism that has animated the Right and even average Americans desperate to revive their precious world of white privilege. But perhaps it is not necessary to add anything more. The War Before the War makes the sickening case quite well. So well that every American should be required to read and absorb what it says.