Slavery and four years of war

by Joseph Warren Keifer

VI CONSTITUTION OF THE UNITED STATES

The Convention to frame the Constitution met in Philadelphia (1787). George Washington was its President; it was composed of the leading statesmen of the new nation, sitting in a delegate capacity, but in voting on measures the rule of the then Congress was observed, which was to vote by States.

The majority of the thirteen States were then slave States, and all, save Massachusetts, still held slaves; and all the coast States indulged in the African slave trade.

Massachusetts provided for the abolition of slavery in 1780 by constitutional provision declaring that:

"All men are born free and equal, and have certain natural, essential, and unalienable rights," etc., by which declaration its highest judicial tribunal struck the shackles at once from every slave in the Commonwealth.

Connecticut provided in 1784 for freeing her slaves.

New Hampshire did not prohibit slavery by express law, but all persons born after her Constitution of 1776 were free; and slave importation was thereafter prohibited.

Pennsylvania, in 1780, by law provided for the gradual emancipation of slaves within her territory. To her German population and the Society of Friends the credit is mainly due for this act of justice. This Society had theretofore (1774) disowned, in its "yearly Meeting," all its members who trafficked in slaves; and later (1776) it resolved:

"That the owners of slaves, who refused to execute proper instruments for giving them their freedom, were to be disowned likewise."

New York adopted gradual emancipation in 1799, but final emancipation did not come until 1827.

Rhode Island, in the first year of the First Continental Congress (1774), enacted:

"That for the future no negro or mulatto slave shall be brought into the colony . . . and that all previously enslaved persons on becoming residents of Rhode Island should obtain their freedom."

New Jersey in 1778, through Governor Livingstone, made an attempt at emancipation which failed; it was not until 1804 that she prohibited slavery in what proved a qualified way, and it seems she held slaves at each census, including that of 1860, and possibly in some form human slavery was abolished there by the Thirteenth Amendment to the Constitution.

The census of 1790 showed slaves in all the original States save Massachusetts alone; Vermont was admitted into the Union in 1790; her Constitution prohibited slavery, but she returned at that census seventeen slaves.

The first census under the Constitution, however, showed, in the Northern States, 40,370 slaves, and in the Southern States, 657,572; there being in Virginia alone 293,427, nearly one half of all.

The Convention closed its work September 17, 1787, and on the same date George Washington, its President, by letter submitted the "Constitution to the consideration of the United States in Congress assembled," saying:

"It is obviously impracticable in the Federal Government of these States to secure all rights of independent sovereignty to each and yet provide for the interest and safety of all. . . . In all our deliberations on this subject we kept steadily in our view that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety; perhaps our national existence."

This Constitution by its preamble showed it was, in many things, to supersede and become paramount to State authority. It was to become a charter of freedom for the people collectively, and in some sense individually. Its preamble runs thus:

"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Nine States were, by its seventh article, necessary to ratify it before it went into effect.

The ratification of the Constitution, on various grounds, was fiercely opposed by many patriotic men, Patrick Henry among the number. Some thought it did not contain sufficient guarantees for individual freedom, others that private rights of property were not adequately secured, and still others that States were curtailed or abridged of their governmental authority and too much power was taken from the people and centered in the Federal Government. Mason, of Virginia, a member of the Convention that framed it, led a party who opposed it on the ground, among others, that it authorized Congress to levy duties on imports and to thus encourage home industries and manufactories, promotive of free labor, inimical and dangerous to human slavery. The best efforts and influence of Washington and other friends of the Constitution would not have been sufficient to secure its ratification had they not placated many of its enemies by promising to adopt, promptly on its going into effect, the amendments numbered one to ten inclusive. (The First Congress, September 25, 1789, submitted those ten amendments according to the agreement, and they were shortly thereafter ratified and became a part of the Constitution.)

By a resolution of the Old Congress, of September 13, 1788, March 4, 1789, was fixed as the time for commencing proceedings under the Constitution. At the date of this resolution eleven of the thirteen States had ratified it. North Carolina ratified it November 21, 1789, and Rhode Island, the last, on May 29, 1790.

Vermont, not of the original thirteen States, ratified the Constitution
January 10, 1791, over a month prior to her admission into the
Union. This latter event occurred February 18, 1791.

Thus fourteen States became, almost at the same time, members of the Union under the Constitution, and each and all of which then held or had theretofore held slaves.

Notwithstanding all this, there were many of the framers of the Constitution and its warmest friends who sincerely desired to provide for the early abolition of slavery, some by gradual emancipation, others by heroic measures; and there were many from the South who favored emancipation, while by no means all the leading and influential citizens of the Northern States desired it.

It may, however, be assumed, in the light of authentic history, that the majority of the framers of the Constitution, and a majority of its friends in the States, hoped and believed that slavery would not be permanent under it. In this belief it was framed. Slavery was not affirmatively recognized in it, though there was much discussion as to it in the Constitutional Convention. There was no attempt to abolish it; such an attempt would have failed in the Convention, and the Constitution, so necessary to the new nation, had it even provided for gradual emancipation, would not have been ratified by the States.

It can hardly be said that the Constitution was framed on the line of compromise as to the preservation of human slavery, though it was necessary, in some occult ways, to recognize its existence. This was in the nature, however, of a concession to it; the word slave or slavery was not used in it.

The Supreme Court of the United States, however, early interpreted the third clause of Section IV., Article 2, as providing for the return from one State to another of fugitive slaves. This interpretation has been, on high authority, and with much reason, in the light of history, stoutly denied. The clause reads:

"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 labor, but shall be delivered up on claim of the party to whom such service or labor is due."

The "service or labor" here referred to, it is claimed, was that owing by persons who were under indentures of some kind, growing out of contracts for transportation into the colonies of persons from the Old World, and possibly growing out of other contract obligations wherein they had agreed, for a long or short term, to perform "service or labor." Many such obligations then existed.

Slaves were not then nor since regarded by their owners as "persons" merely "held to service or labor," but they were held as personal chattels, owing no duty to their masters distinguishable from that owing by an ox, a horse, or an ass.

But the supreme judiciary and the executive and legislative departments of the government came soon to treat this as a fugitive- slave clause. It is only now interesting to examine its peculiar phraseology and the history and surrounding circumstances under which it became a part of the Constitution, to demonstrate the great care and desire of the eminent and liberty-loving framers of the Constitution to avoid the direct recognition of African slavery.

The only other clause in which the adherents of slavery claimed it was recognized is paragraph 3, Section 2, Article I., which provided that:

"Representation and direct taxes shall be apportioned among the several States . . . 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."

The "other persons" referred to here, if only slaves, are very delicately described. But this clause, too, came to be recognized by all the departments of the government as referring to slaves. It is quite sure that if the good and plain men of the Revolutionary period had been dealing with a subject not shocking to their consciences, sense of justice, and humanity, they would have dealt with it in plain words, of direct and not doubtful import.

The clause of the Constitution giving representation in the House of Representative of Congress and in the Electoral College in the choice of President and Vice-President, came soon to be regarded as unjust to the free States. Three fifths of all slaves were counted to give representation to free persons of the South; that is, three fifths of all slave property was counted numerically, and thus, in many Congressional districts, the vote of one slaveholder was more than equal to two votes in a free State. For example, in 1850, the number of free inhabitants in the slave States was 6,412,605, and in the free States, 13,434,686, more than double. The representation in Congress from the slave States was 90 members, from the free States 144. Three fifths of the slaves were 1,920,182, giving the South 20 (a fraction more) members, the ratio of representation then being 93,420. If the 234 representatives had been apportioned equally, according to free inhabitants, the North would have had 159 and the South 75, a gain of fifteen to the free and a loss of that number to the slave States, a gain of 30 to the North.

The same injustice was shown in levying direct taxes. (All this, however, has been changed by the Fourteenth Amendment to the Constitution.)

The same discriminating language is used (Sec. 9, Art. I.) when obviously referring to the African slave trade. A strong sentiment existed in favor of putting an end at once to the traffic in human being; the Christian consciences of our forefathers revolted at its wickedness, and there was then beginning a general movement throughout the civilized world against it. Some European countries had denounced it as piracy.

It was, however, profitable, and much capital was invested in it, and there was even then an increased demand for slaves in the cotton, rice, and tobacco States.

It was feared so radical a measure as the immediate stoppage of this trade would endanger the Constitution, and as to this, also, it was deemed wise to compromise; so Congress was prohibited from legislating to prevent it prior to the year 1808. This trade was not only then carried on by our own people, but, through ships of other countries, slaves were imported into the United States. Each State was left free to prohibit the importation of slaves within its limits.

We have now referred to all the clauses of the Constitution as originally adopted relating, by construction or possibility, to slavery or slave labor.

The Republic, under this great charter, set out upon the career of a nation, properly aspiring to become of the first among the powers of the earth, and succeeding in the higher sense in this ambition, it yet remains to be told how near our Republic came, in time, to the brink of that engulfing chasm which in past ages has swallowed up other nations for their wicked oppression and enslavement of man.

Slavery, thus delicately treated in our Constitution, brought that Republic, in less than three quarters of a century, to the throes of death, as we shall see.