The Fugitive Slave Clause: A Constitutional Essay

In this particular series of blogs [1] we have focused on areas of the Constitution that have caused both historical and contemporary political controversy, and not delved deep into areas of constitutional law but rather focused on the political history of a given area of the Constitution, as well as that which may be understood by logic apart from a deep understanding of law itself.  There are few areas of the constitution that have been dogged throughout the history of the United States with more questions and controversies than the so-called Fugitive Slave Clause, which can be found in Article IV, Section 2, Clause 3 of the United States Constitution and reads:  “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 [2].”

The relative importance of this clause may be determined from the fact that it sits at nearly the beginning of the clauses after the division of government into three branches in order of their importance has been taken up.  Given the decline in pro-Union sentiment when it became obvious to the South that substantial portions of the North were unwilling to enforce this particular clause, it would be fair to say that this clause was a sine qua non of the South remaining in the Union, given the insistence of slaveowners that the rendition of runaway slaves be done cheerfully.  Yet it should be admitted at the outset that this clause did not only refer to fugitive slaves.  Note that even though it is obvious that fugitive slaves are included, that the word slave does not appear at all in the passage.  For example, at least one of the founding fathers of our country, Benjamin Franklin, and at least one of our presidents, Andrew Johnson, skipped out on apprenticeships and set out on their own to find freedom away from the strict restrictions of such indentures.  When slaves were freed in New York according to their gradual emancipation scheme in the early 19th century, freed slave youth were placed in lengthy apprenticeships as a way of compensating slaveowners there for the loss of their labor, lasting more than 20 years.  Technically speaking, this particular clause of the constitution not only required the remanding of runaway slaves, but also runaway apprentices and others who would have been termed indentured servants.

In most of the discussion of the Fugitive Slave Clause, however it is interpreted, there is one element of the clause that generally escapes notice and attention.  It is lamented that the Constitution made a covenant with evil in that it required free areas to accept, if not actively support, the return of fugitives to the areas where they escaped from so that they could fulfill either their term of apprenticeship or a lifetime of slavery.  There are debates over who is required to return the fugitives to their service, and whether it was just to create laws that were biased in favor of those seeking to regain those who are claimed to be slaves.  Yet one thing is seldom commented on when looking at the Fugitive Slave Clause, and that is the fact that this clause does not conceive of any fugitives, slaves or apprentices or indentured servants or anyone else as anything other than people.  The clause begins, let us note, that “no person held to service or labour,” so that this deals with human beings and not, say, runaway mustang horses or beef cattle.  Forgotten in the disputes about this clause, and there are many, is the fact that the Constitution does not conceive of slaves, or anyone else in a status that could be termed unfree in some fashion, as anything other than a person.

This is not a one-off accident, either, it should be noted.  In Article 1, Section 2, Clause 3 of the United States Constitution, when determining the apportionment for seats in the House of Representatives, this clause reads:  “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, 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.”  Note here that slaves–again the word slaves is not used–are considered as “all other Persons.”  At least as far as the Constitution is concerned, and however degraded was their status before the law, or however many rights they were deprived of as a result of their unjust exploitation, slaves were never considered within the text of the Constitution as anything less than human beings.

One wonders whether the slaveowners often reflected on that fact.  We can recognize truths and not act on them, and that certainly appears to be the case when it comes to laws about slavery.  Even though the United States constitution clearly recognized slavery and to some extent required those who followed the law of the land to act in ways to demonstrate good faith with their slaveowning fellow citizens, the Constitution itself does not view slaves as chattel, like cows or horses, but consistently as people those few times when it uses circumlocutions to avoid calling them slaves.  Throughout the history of slaveowning in the American Republic, there was a tension between a Constitution that resolutely saw them as people and a body of law and cultural prejudice that saw them as mere moveable property.  So long as the Constitution viewed them as people, and so long as people wrestled with that fact, then there was the chance that eventually they would be treated like human beings with all the rights and privileges according to that status.  And, although the process has taken a long time and prejudice is by no means wiped away, that is precisely what happened with regards to the Fugitive Slave Clause, which mercifully is no longer part of the constitution at all.

[1] See, for example:

[2] A good essay of this clause can be found at:!/articles/4/essays/124/fugitive-slave-clause

About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
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9 Responses to The Fugitive Slave Clause: A Constitutional Essay

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