Fugitive Slave Clause - Background

Background

Prior to the American Revolution, there were no generally accepted principles of international law that required sovereign states to return fugitive slaves that had fled to their territory. English court decisions and opinions came down on both sides of the issue.

This ambiguity was resolved with the 1772 decision in Somerset v. Stewart case. Lord Mansfield ordered that a fugitive slave from Virginia who had reached England, where slavery was prohibited, was a free person who could not be legally returned to his previous owners. Absent a long standing local custom or positive legislation requiring the return, judges were bound by English law to ignore the prior legal status of the fugitive under foreign laws. Although the decision did not affect the colonies directly and despite a general record of cooperation by northern colonies, law professor Steven Lubet wrote:

Nonetheless, the Somerset precedent was frightening to southern slaveholders. It had been widely published in America, and often over-interpreted as having completely abolished slavery under British law. News of the ruling had spread by word of mouth among slaves, which of course was troubling to their masters.

During and after the American Revolutionary War under the Articles of Confederation, there was no ability to compel free states to capture fugitive slaves from other states and return them to their former masters, although there were provisions for the extradition of criminals. Despite this, there was not a widespread belief that this was a problem or that northern states failed to cooperate on the issue. This was due at least in part to the fact that by 1787 only Massachusetts and Vermont had outlawed slavery.

At the Constitutional Convention many slavery issues were debated and for a time slavery was a major impediment to passage of the new constitution. However there was little discussion concerning the issue of fugitive slaves. After the issues involving the slave trade and the counting of slaves for representation purposes regarding both the distribution of taxes and the apportionment of the members of the United States House of Representatives, two South Carolina delegates, Charles Cotesworth Pinckney and Pierce Butler, proposed that fugitive slaves should be "delivered up like criminals." James Wilson of Pennsylvania and Roger Sherman of Connecticut originally objected. Wilson argued that the provision "would oblige the Executive of the State to do it at public expence" while Sherman stated that he "saw no more propriety in the public seizing and surrendering a slave or servant, than a horse." After these objections the discussion was dropped but the very next day Butler proposed the language which was passed with no debate or objections.

As in the other references in the Constitution dealing with slavery, the words "slave" and "slavery" are not specifically used in this clause. Historian Donald Fehrenbach believes that throughout the Constitution there was the intent to make it clear that slavery existed only under state law, not federal law. On this instance, Fehrenbacher concludes:

Most revealing in this respect was a last-minute change in the fugitive-clause whereby the phrase "legally held to service or labour in one state" was changed to read "held to service or labour in one state, under the laws thereof." The revision made it impossible to infer from the passage that the Constitution itself legally sanctioned slavery.