The 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.

—Bradley Rebeiro

Introduction

Perhaps none of the clauses in the Constitution pertaining to slavery was more nebulous or spurred more contention and violence than the Fugitive Slave Clause.¹ There is little doubt that this provision pertained to fugitive slaves. It was referred to as the Fugitive Slave Clause even though the words fugitive and slave appear nowhere in the text.² The Framers reached a consensus that would protect property in slaves but paradoxically omit lawful recognition of slavery. Still another issue remained: the Fugitive Slave Clause did not carry with it an express grant of power. This omission resulted in significant conflict between the federal government and southern states on one side and northern states on the other. Many of these conflicts, which centered on the proper scope and meaning of the Fugitive Slave Clause and Congress’s power to enforce it, were resolved in favor of the federal government and southern states.

History Before 1787

The origins of the Fugitive Slave Clause lie somewhat counterintuitively with Somerset v. Stewart (1772).³ Stewart, a Virginia slaveholder, brought one of his slaves—James Somerset—with him on a business trip to England. Through the writ of habeas corpus, Somerset claimed he was free by virtue of setting foot on English soil, where slavery was unlawful. In a decision that sent shockwaves through the southern colonies, Lord Mansfield granted Somerset’s habeas petition. He reasoned that slavery was so contrary to the nature of law that only positive, or statutory, law could sustain it. Put differently, if a slave was brought to English soil—where slavery was not tolerated—that slave became free.

This pronouncement did not cause significant friction among the colonies and, later, the states. The Articles of Confederation, for example, provided for the return of fugitives from justice but said nothing of slaves.⁴ But as more states considered and enacted emancipation laws, the slaveholding states began to appreciate the implications of Somerset.⁵ The first step these states took to protect their peculiar property was the Northwest Ordinance of 1787. The Confederation Congress banned slavery in the territories but ensured that fugitive slaves could be reclaimed if they sojourned to the territories.⁶ No longer would slaveholders have to worry about Somerset’s rationale: Positive legislation in a sense would sustain the odious institution for slaveholding states.

The Constitutional Convention

Although it would later lead to significant tension in interstate relations, the Fugitive Slave Clause prompted surprisingly little discussion at the Constitutional Convention. On August 28, 1787, Pierce Butler and Charles Pinckney of South Carolina introduced a provision to require the return of fugitive slaves.⁷ James Wilson of Pennsylvania objected that their proposal would require the executive of each state to deliver fugitive slaves at public expense.⁸ Roger Sherman of Connecticut argued that there was “no more propriety in the public seizing and surrendering a slave . . . than a horse.”⁹

Butler and Pinckney withdrew their provision from consideration and later reintroduced a revised version that mirrored the Articles of Confederation’s fugitive provision but included a provision for the returning of fugitive slaves: “If any person bound to service or labor in any of the U– States shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor.”¹⁰ With these deliberations happening so close to the Northwest Ordinance’s enactment, Butler and Pinckney were able to rely on plenty of authority; they just needed the right words.¹¹

The Committee of Style later changed the proposed clause in several ways. Most notably, “legally” was changed to “under the laws thereof.” This change avoided the idea that slavery was morally valid.¹² The resulting clause’s plain language, full of circumlocutions, was ambiguous in two ways that would later carry significance: It did not specify who would have the responsibility to recover fugitive slaves, and it did not mention the word “slave,” although all delegates understood the clause to reference fugitive slaves.¹³ What seemed relatively clear at the time, however, was that the clause would ensure that Somerset would not have purchase in the wake of northern emancipation.

The Ratification Debates

Viewed in the light of the controversies that would soon follow, it is equally surprising that there was no considerable attention given to the Fugitive Slave Clause during the ratification debates. Perhaps the closest example is Federalist No. 42, where Madison discusses competing claims of citizenship and the need for uniform naturalization rules. The emphasis on “free inhabitants” and the problem of some states conferring citizenship on persons for whom another state might proscribe citizenship might be read to address the problem of free states conferring citizenship on fugitive slaves.

Early Practice

During the early Republic, the Fugitive Slave Clause was interpreted to promote slavery. The Second Congress passed the Fugitive Slave Act of 1793 (formally “an Act respecting fugitives from justice, and persons escaping from the service of their masters”).¹⁴ This act authorized states to assist in the recapture of fugitive slaves. Perhaps more controversially, it gave slave owners or their agents authority to enter states into which fugitive slaves had escaped in order to recover them. (See Essay No. 141.) It also provided steep penalties for anyone who helped to harbor or conceal escapees.

Significant opposition to the Act arose in the North. States passed the first versions of what would become known as Personal Liberty Laws, which provided modest protections for free blacks.¹⁵ The first iterations of these laws took the form of anti-kidnapping statutes. These laws heavily penalized or even criminalized the kidnapping of free blacks. They also prohibited slave owners or their agents from seeking to recover alleged fugitives without the involvement of local authorities and generally provided formal procedures to process the return of runaway slaves. On their face, the Personal Liberty Laws seemed to conform to the 1793 Act, but they denied slave holders and their agents what they believed was the full measure of protection to recover fugitive slaves under the federal statute.

Prigg v. Pennsylvania and Jones v. Van Zandt

In 1842, the contest between slaveholders and Personal Liberty Laws finally reached the Supreme Court in Prigg v. Pennsylvania.¹⁶ Pennsylvania’s Personal Liberty Law prohibited the removal of blacks from the state for the purpose of enslaving them. Margaret Morgan, who was residing in Pennsylvania, was alleged to have escaped from Maryland. Edward Prigg was charged with securing Morgan’s return to Maryland. The Pennsylvania Supreme Court upheld Prigg’s conviction for kidnapping Morgan. However, on appeal, the Supreme Court declared that the Personal Liberty Law was unconstitutional. Justice Joseph Story’s majority opinion found that the state law was preempted by the Fugitive Slave Clause and the 1793 Fugitive Slave Act. But the Northern states also emerged with a small win: Story determined that the federal government could not force states to assist in executing the 1793 Act.

Rather than settling the matter, however, Prigg simply presented another possibility among the competing interpretations and increased friction over the Fugitive Slave Clause. In 1837, Salmon P. Chase would be one of the first lawyers to offer a new view of the Fugitive Slave Clause when abolitionists sought his legal expertise in several high-profile cases out of Ohio. The first case involved a fugitive slave named Matilda, who worked for James G. Birney, a well-known abolitionist.¹⁷ Matilda had been seized by slave catchers, and Birney, with very little time to spare, solicited Chase’s assistance to provide Matilda with a legal defense. Chase invoked the Northwest Ordinance of 1787 and argued, much in line with Somerset, that property claims in slaves could not survive into free territories.¹⁸ Unsurprisingly, Chase’s argument did not win the day, and Matilda was sold into slavery.

In Jones v. Van Zandt (1847), Chase refined his theory of the Fugitive Slave Clause. Relying in part on Story’s reasoning in Prigg, Chase posited that the federal government did not have power to enact the Fugitive Slave Act.¹⁹ Chase relied heavily on Madison’s Notes from the Constitutional Convention. He argued that Framers intended to ensure that the Constitution—and by extension, the federal government—did not recognize the moral validity of slavery. Rather, the Constitution provided certain protections for the institution. Chase maintained that the Fugitive Slave Clause did not expressly grant the federal government power to enforce it, an omission that he found significant. According to Chase, the clause’s enforcement was to be left to the states and the states alone.²⁰ To Chase’s dismay, the Supreme Court rejected his argument and upheld the constitutionality of the 1793 Act.²¹

The Fugitive Slave Act of 1850

As tension over the future of slavery continued to rise, Congress passed more statutes to assuage the South’s concerns. These measures continued to anger the North and contributed to increasingly unapologetic anti-slavery visions of the Constitution. Perhaps nothing brought the conflict to a head more than the Fugitive Slave Act of 1850.²² Prigg had confirmed that state officials could not be forced to carry out the 1793 Act. In response, under the 1850 Act, federal magistrates would adjudicate claims concerning alleged fugitive slaves and would be awarded more money if they determined that an alleged fugitive was indeed a fugitive slave.

The 1850 law also denied the alleged fugitive an opportunity to be heard before the magistrate or present evidence. Northerners found this provision particularly objectionable, as it was tantamount to a denial of the due process of law under the Fifth Amendment (See Essay No. 172). The Wisconsin Supreme Court, for instance, declared the act unconstitutional, but the U.S. Supreme Court overturned that decision in Ableman v. Booth.²³ Several states refused to assist in enforcing the Act. In cities with a strong anti-slavery presence, there was an increased resistance to the capture of blacks.²⁴

Abolitionist Responses to the Fugitive Slave Clause

Some abolitionists responded with increasingly creative interpretations of the Fugitive Slave Clause. Frederick Douglass, for instance, popularized a theory that the clause did not pertain to slaves at all. Douglass, relying on the omission of the word “slave,” argued that the clause could apply only to indentured servants or those who could enter contracts and thus were “held to Service or Labour.”²⁵ Because slaves could not enter contracts, they could not be “held to Service” in any sense. Thus, the federal government had no obligation to ensure the protection of slaveowners’ claims to property in slaves. Moreover, the Due Process Clause of the Fifth Amendment, properly understood, imposed an affirmative duty on the federal government to protect the liberty of all persons, including the enslaved.

Ultimately, the conflict around the Fugitive Slave Clause—in some measure caused by the Framers’ reluctance to make clear what it covered and who could enforce it—could not be solved through the political process or through the courts. Not until ratification of the Thirteenth Amendment, which abolished slavery, was the conflict finally put to rest.

1. Art. IV, § 2, cl. 3. ↩︎
2. Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation’s Founding 103–04 (2019). ↩︎
3. Somerset v. Stewart, 98 Eng. Rep. 499 (1772). ↩︎
4. Articles of Confederation, art. IV, § 2. ↩︎
5. Wilentz, supra at 101–09. ↩︎
6. The Northwest Ordinance, Art. VI (1787). ↩︎
7. 2 Farrand’s 443. ↩︎
8. Id. ↩︎
9. Id. ↩︎
10. Id. at 453. ↩︎
11. Wilentz, supra at 103–05. ↩︎
12. 2 Farrand’s 628; Wilentz, supra at 111–12. ↩︎
13. Wilentz, supra at 107. ↩︎
14. 1 Stat. 302 (1793). ↩︎
15. Thomas Morris, Free Men All: Personal Liberty Laws of the North, 1780–1861, ch. 2 (1974). ↩︎
16. Prigg v. Pennsylvania, 41 U.S. 539 (1842). ↩︎
17. John Niven, Salmon P. Chase: A Biography 50 (1995). ↩︎
18. Id. at 51–54. ↩︎
19. Brief for Defendant, Jones v. Van Zandt, 46 U.S. 215 (1847). ↩︎
20. Id. at 100. ↩︎
21. Van Zandt, 46 U.S. at 232. ↩︎
22. 9 Stat. 462 (1850). ↩︎
23. 62 U.S. 506 (1859). ↩︎
24. Lawrence Lader, Bold Brahmins: New England’s War Against Slavery: 1831–1863, at 203–16 (1973). ↩︎
25. Frederick Douglass, Address at Scottish Anti-Slavery Society, Glasgow, Scotland, The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery? (Mar. 26, 1860). ↩︎