Slavery and the Constitution

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Long before the constitutional convention of 1787 the question of slavery had become the prime concern of many Americans. In the first and second Continental Congresses, the matter arose when several groups of slaves petitioned for their manumission. Nothing came of their pleas, of course. In thomas jefferson's draft of the declaration of independence, he accused the king of waging cruel war against human nature itself, "violating its most sacred rights of life and liberty in the persons of a distant people … captivating and carrying them into slavery in another hemisphere.…" Although slavery existed throughout the English colonies in 1776, the southern slaveholders in Congress forced rejection of this indictment of the king. If they won their independence on the basis of such an argument, they feared that there would no longer be any justification for slavery.

In some colonies the sentiment against slavery grew during the war for Independence; and the eventual use of slaves as soldiers in the war contributed to the feeling that they should be free. As the states gained their independence some prohibited the slave trade. Some went beyond that enacting legislation looking to the abolition of slavery altogether. Pennsylvania and Massachusetts passed such laws in 1780, followed by Connecticut and Rhode Island in 1784, New York in 1785, and New Jersey in 1786. While no states south of Pennsylvania abolished slavery during this period, several enacted laws facilitating manumission by slaveholders.

Meanwhile, the continental congress began to look at the question of slavery as it undertook to develop a national land policy. When Thomas Jefferson framed the ordinance of 1784 for the organization of government in the western territory, he included a provision that after the year 1800 there should be no slavery or involuntary servitude in any of the states to be organized. That provision was rejected. The idea persisted, however, that slavery should not be extended indefinitely. In the northwest ordinance of 1787 Jefferson's language of 1784 was adopted with the caveat that fugitive slaves escaping into the Northwest Territory from one of the original states "may be lawfully reclaimed and conveyed to the person claiming his or her labor or service.…" The Ordinance did not apply south of the Ohio River, where slaveholders were more likely to settle than in the Northwest Territory.

It was inevitable that slavery should have been an important consideration at the Constitutional Convention. At a time when slavery was waning in the North, the southern states saw in slavery an increasing source of wealth both in the market value of slaves and in what slaves could produce. An economic interest so important could not be ignored by a convention one of whose major concerns was to protect property and to advance the economic interests of those who were to live within the new frame of government. Although there were numerous points at which the emerging document affected the institution of slavery, four were of prime significance to the future of slavery and, indeed, the fate of the Constitution.

One point had to do with the taxing power of Congress. Southern delegates generally feared that in levying taxes, especially poll taxes, the federal government might discriminate against the South in the way it counted slaves. Closely connected with this was the perception that in apportioning representation, the South would suffer from any arrangement that did not recognize and count slaves as people. After considerable debate, some of it acrimonious, a compromise was reached. Direct taxes were to be apportioned among the several states according to population, thus making it impossible to raise a major portion of federal revenue by taxing property that existed only in one section of the country. In determining the basis of taxation and representation, five slaves were to be counted as equal to three free persons. The cryptic language in Article I, section 2, 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."

The other two points regarding slavery were handled with some dispatch, not because they were unimportant but because they did not come up until late in the session, when the weary delegates were eager to return to their homes. On the slave trade, several southern delegates were uncompromising. While those from Virginia and Maryland appeared to favor a prohibition of the trade, those from South Carolina and Georgia were unalterably opposed to the prohibition. To avoid a rupture between the delegates of the upper South and the North, who favored prohibition, and those of the lower South, the compromise was reached that the slave trade could not be ended before twenty years had elapsed. This language was added in Article II, Section 9: "The Migration or Importation of such Persons as any of the States now shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person."

Significantly, there was almost no opposition to the proposal that fugitive slaves be returned to their masters. The public obligation to return slaves, which had already been provided for in several Indian treaties between 1781 and 1786, was established in the Northwest Territory in 1787 along with the prohibition of slavery in that region. When the provision came before the Convention in late August, the delegates were in no mood for a protracted debate. The slaveholders had already won such sweeping constitutional recognition of slavery, moreover, that the question of fugitive slaves was something of an anticlimax. Without serious challenge, the provision was inserted in Article IV, Section 2: "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."

In dealing with slavery the delegates to the Convention made certain, as if out of a sense of guilt or shame, never to use the word "slave" or any of its variations in the Constitution itself. "Three fifths of all other persons," "Persons held to Service or Labour," and "Migration or Importation of Such Persons," were all mere euphemisms. Everyone knew what they meant. They were meant to shield the consciences of the delegates just as the clauses themselves were meant to protect the institution of slavery. In none of the deliberations did the delegates give serious consideration to abolishing slavery, even though slavery made a mockery of freedom, equality, and the rights of man. It did not make a mockery, however, of the rights of property. American independence and the new Constitution had the effect of giving slavery a longer life than it was to have in the British Empire.

It was the business of the Congress to enact legislation to carry out the objectives set forth in the Constitution. As far as slaves were concerned, this meant the enactment of legislation to facilitate the recovery of runaway slaves by their masters. The impetus for legislation came, however, not from concerns about fugitive slaves but in the call for a statute to facilitate the surrender of fugitives from justice. When the governor of Pennsylvania was unable to persuade the governor of Virginia to give up three white men accused of kidnapping a Pennsylvania free Negro, he presented the facts in the case to President george washington. When the President transmitted the matter to Congress, it responded by passing the Fugitive Slave Act of 1793. After dealing with the matter of the surrender of fugitives from justice in the first two sections, the law turned to the rendition of fugitive slaves.

Under the law a slaveholder could apply to a federal district or circuit judge for a certificate authorizing him to return his slave to the state from which he had fled. This certificate was to be granted after the master had captured his slave, and there were few federal judges at the time; therefore, the master was compelled to go to considerable expense and travel before enjoying the protection of the federal courts. The law did not authorize judges to issue warrants for the arrest of slaves and it did not compel federal authorities to aid in the pursuit of fugitive slaves. The lack of such provisions generated criticism by slave-holders for years to come.

Although under the law of 1793 many fugitives were recaptured and returned to the places from which they had fled, masters continued to complain about the difficulties of reclaiming their human property. Meanwhile, as antislavery sentiment gained momentum in the first decade of the century, opponents of slavery placed additional obstacles in the way of slaveholders seeking the return of their runaways. They began actively to aid fugitives, to urge federal judges not to issue certificates for the return of runaways, and to persuade local officers not to cooperate in their rendition. Slavemasters soon called for a more effective law, and in 1818, a stronger bill was introduced in the house of representatives. As it made its way through Congress, it was burdened with amendments introduced by antislavery legislators requiring proof of ownership before a court of record and making masters criminally liable for false claims. Although a version of the proposed law passed both houses, it was tabled when the conference committee was unable to resolve the problem of amendments.

As the new century began, many Americans turned their thoughts to the provision of the Constitution prohibiting Congress from closing the slave trade before 1808. The slave trade was flourishing, and the slave interests faced a curious dilemma. If the trade continued they risked increasing the chances of violence as unruly blacks from Africa or revolutionary and resourceful blacks from the Caribbean were imported. On the other hand, they required a larger number of slaves to tend their burgeoning plantations. Hoping that the national and state governments would provide safeguards against uprisings and insurrections, they were tempted to favor the continued importation of slaves. At least, they wished to keep their options open.

Ending the slave trade under the provision set forth in the Constitution was not a foregone conclusion, and the antislavery forces knew it. All through the decade they pressed for stringent federal legislation to end the trade. In January 1800, a group of free Negroes in Philadelphia called on Congress to revise its laws on the slave trade and on fugitives. When South Carolina reopened its ports to the trade in 1803, antislavery groups began to press Congress to act. Several resolutions were introduced in Congress condemning the slave trade, but that body took no conclusive steps. The question was brought dramatically before the country in December 1805, when Senator Stephen R. Bradley of Vermont introduced a bill to prohibit the slave trade after January 1, 1808, but the bill was indefinitely tabled. This measure set the stage for President Jefferson to address the issue in his annual message to Congress in December 1806. He called attention to the approaching date when Congress could constitutionally prohibit "all further participation in those violations of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country have long been eager to proscribe."

Pursuant to the President's eloquent call, which was reminiscent of his draft of the Declaration of Independence, Congress proceeded to consider legislation outlawing the trade. Every provision of the proposed law was debated vigorously. Slaveholders, fearing that Africans smuggled into the United States would not be under the control of the law, wanted them seized and sold into slavery. The antislavery members of Congress strongly objected. The prohibition of the slave trade act (1807) was a compromise. It directed federal officers to be "governed by the provisions of the laws, now existing, of the several states prohibiting the admission or importation … of any Negro, mulatto, or other person of color."

In 1818 in the first supplementary act to the law of 1807, Congress sought to make the trade less attractive by increasing the penalty for anyone engaged in it. For example, a fine of $20,000 was replaced by a lowered fine and imprisonment for three to seven years. There were stiffer penalties for persons who knowingly purchased illegally imported Negroes; one-half of all forfeitures and fines were to go to informers. In 1819 Congress directed the President to use armed cruisers on the coasts of the United States and Africa to suppress the trade. Half the proceeds of a condemned ship would go to the captor as bounty, and the captured slaver was to be returned to the port from which it sailed. In the following year Congress provided that direct participation in the slave trade was an act of piracy, punishable by death.

The slave trade was profitable, and it continued despite federal legislation. State laws on the disposition of illegally imported Africans varied. North Carolina directed that such Africans "be sold and disposed of for the state." Georgia directed that the Africans either be sold or given to the Colonization Society for transportation to Africa, with the Society bearing all expenses. Despite these laws, most imported slaves seem to have escaped capture. There were so few captures and the federal officials did so little to enforce the statute of 1807 that it was nearly a dead letter. Slavers introduced their cargo into the United States from Galveston, then a part of Mexico, from Amelia Island in Florida, until 1819 a part of the Spanish Empire, and at various ports on the eastern and southern coasts of the United States. Secretary of the Treasury William H. Crawford confessed that the United States had failed to enforce the law.

Estimates regarding the numbers involved in the illicit slave trade varied. In the decades following passage of the supplementary acts, slavers easily evaded federal authorities, and enforcement received no more than lip service in Washington. In 1839 President martin van buren called for revision of the laws covering the slave trade in order that "the integrity and honor of our flag may be carefully preserved." A decade later President Zachary Taylor invited the attention of Congress "to an amendment of our existing laws relating to the African slave trade, with a view to the effectual suppression of that barbarous traffic." Nothing happened, and the trade continued down through the Civil War. Because of its clandestine nature, precise figures are impossible; a recent student of the trade estimates that some 51,000 slaves were illegally imported by 1860.

Shortly after the United States purchased Louisiana in 1803, inhabitants from the older states began to settle in the newly acquired territory. When Louisiana entered the Union in 1812 as a slave state, eastern and northern interests began to appreciate the political and economic consequences of slave states entering the Union. They believed that under the Constitution the federal government could prevent the creation of slave states in the territories. They were determined, therefore, to prevent slave states from entering the Union, or, failing that, to limit the number of new slave states. When Missouri sought admission in 1818, northern members of Congress said that they would agree only on condition that the Missouri constitution forbid slavery. Southerners claimed that the restriction was discriminatory; some threatened disunion. After bitter debate, the impasse was resolved when Maine sought admission. Congress admitted Maine as a free state and Missouri as a slave state and declared that in the Louisiana territory slavery should not exist north of the southern boundary of Missouri.

The missouri compromise stimulated the rivalry between the slave and free states, with each side searching for ways to enhance its advantage. While southern spokesmen insisted that the problems of slavery were local, they relied on the federal Constitution and laws to protect slavery in defiance of the first amendment; they demanded that antislavery petitions to Congress be laid on the table without receiving notice. At the same time they demanded that Congress act to facilitate the return of fugitive slaves. As antislavery sentiment in the North increased and abolitionists became more active in obstructing the return of fugitives, the Southerners' demands for protection became more shrill. There were numerous dramatic moments between 1830 and 1860, when abolitionists seized fugitive slaves from their captors or interrupted court proceedings to give accused fugitives the opportunity to flee.

In some northern states residents feared that the Fugitive Slave Law of 1793 would operate to the disadvantage of kidnapped whites and free Negroes accused of being runaway slaves. Consequently, state legislatures empowered state courts to rule in matters arising out of the 1793 law. The Pennsylvania statute of 1826 required the master to present to a magistrate proof of his claim to the alleged fugitive. If the magistrate was convinced the claim was well founded, he was to issue a certificate authorizing the removal of the runaway from the state. If, on the other hand, anyone had seized a person suspected of being a runaway and wrongfully removed him, he would, upon conviction, be deemed guilty of a felony and suffer fine and imprisonment. In due course and by amicable arrangement the Supreme Court ruled on the constitutionality of the Pennsylvania statute in prigg v. pennsylvania (1842), thereby significantly affecting the slavery question for the next two decades.

Edward Prigg, a slave catcher, seized a Negro woman and her children in Pennsylvania with the intention of returning them to their alleged owner in Maryland. When Prigg sought a certificate authorizing their removal, the magistrate, dissatisfied with the proof of ownership, declined to issue the certificate. Prigg took them anyway and was subsequently convicted for violating the 1826 law. The Supreme Court reversed the state court in a decision that had far greater significance than merely exonerating Prigg. Speaking for the Court, Associate Justice joseph story declared the Pennsylvania personal liberty law unconstitutional, because it invaded a field placed within the exclusive domain of the federal government by the Fugitive Slave Act of 1793 and by the Constitution itself. "Under the Constitution," said Story, the right to seize a runaway and the duty to deliver him pervaded "the whole Union with an equal and supreme force, uncontrolled and uncontrollable by State sovereignty or State legislation." States could enforce the law of 1793, if they wished; but they could not be required to do so, Story added. Further, if an owner recaptured his fugitive slave he did not need a state magistrate's permission to return him to his place of abode.

By placing the fugitive slave question within the exclusive jurisdiction of the federal government, Justice Story implicitly encouraged northern states that did not wish to cooperate in the enforcement of federal legislation on the subject. The decision promoted the belief, moreover, that antislavery forces could work through sympathetic state and local officials to prevent the recovery of fugitive slaves. Accordingly ten free states enacted personal liberty laws.

When slaveholders felt the impact of Prigg in relieving states of responsibility in enforcing the Fugitive Slave Law, they agitated for a more stringent federal law that neither abolitionists nor hostile state laws could nullify. Because the annual pecuniary loss in fugitive slaves was in the hundreds of thousands of dollars, slaveholders increased their pressure on Congress to act. Despite its validation in Prigg, the Act of 1793 was inadequate. State courts seemed to vie with abolitionists in their disregard for federal authority. What was needed was a new act of Congress providing effective federal machinery for its successful enforcement. Early in 1850, Senator James Mason of Virginia introduced a bill to that end. Thus began the long and tortuous route by which a new fugitive slave law made its way through Congress.

The debate on the bill was extensive and, at times, acrimonious, connected as it was with other matters that were to constitute the compromise of 1850. In the Senate, william h. seward of New York wanted to guarantee to every alleged fugitive slave the right to trial by jury. henry clay of Kentucky, on the other hand, wished to emphasize the right of the aggrieved master to recover his property from any place, including a free state, where the slave had fled. daniel webster of Massachusetts, to the surprise of many Northerners and Southerners, agreed with Clay and declared that "in regard to the return of persons bound to service, who have escaped into the free States …itismy judgment that the South is right, and the North is wrong." After the bill passed both houses, President Millard Filmore signed it on September 18, 1850.

The new fugitive slave law undertook to establish adequate federal machinery for its enforcement. Circuit courts were to appoint commissioners who, concurrently with circuit and district judges, had authority to grant certificates for the return of fugitive slaves. United States marshals were to execute warrants issued under the act, and a failure of diligent execution was punishable by a $1,000 fine. If a fugitive should escape from a marshal's custody, the marshal was liable for the slave's full value. When the marshal or claimant brought the slave before the court to request a certificate for his return, the alleged fugitive was not permitted to testify in his own behalf. Court disturbances, aiding or abetting fugitives, and harboring or concealing fugitives were punishable by a $1,000 fine and six months imprisonment.

Abolitionists and others attacked the Fugitive Slave Law as unconstitutional. Horace Mann said that it made war on the fundamental principles of human liberty. charles sumner called it a "flagrant violation of the Constitution, and of the most cherished rights—shocking to Christian sentiments, insulting to humanity, and impudent in all its pretensions." Others argued that the fugitive slave clause of the Constitution did not confer on Congress any power to enact laws for the recovery of fugitive slaves. They questioned the power of Congress, moreover, to give commissioners authority to render judgments that only United States judges could properly render under the Constitution. The denial to fugitives by the law of 1850 of the right to trial by jury and to confront and cross-examine witnesses was itself an unconstitutional denial of due process, its opponents argued. The fact that commissioners received fees instead of fixed salaries meant that they were themselves interested parties in fugitive slave cases. If the commissioner turned over the fugitive to his claimant, he received a ten dollar fee. If he freed the fugitive, the commissioner received only five dollars. What commissioner could be trusted to render impartial justice when his income depended on the kind of decision that he rendered?

The flight into Canada from northern cities of numerous free Negroes and fugitive slaves dramatized for many Northerners the new role of the federal government in obstructing the efforts of those who sought freedom. Many Northerners vowed to prevent enforcement of the new fugitive slave law. Fugitive slave cases increased, but so did rescues, accompanied by denunciations of federal officials. Friends of fugitives resorted to desperate measures such as kidnapping slave hunters and poisoning their bloodhounds. They organized vigilance committees not only to engage in action but also to express their moral revulsion to every effort to enforce the new law. In 1852 the Boston committee unsuccessfully attempted to prevent the rendition of Thomas Sims, an alleged fugitive from Georgia. Composed of such men as Theodore Parker, Wendell Phillips, Horace Mann, and Charles Sumner, the committee, on April 13 at 3 a.m., watched as the United States marshal walked Sims down State Street, past the spot where Crispus Attucks fell and to the wharf where the ship was waiting to take him back to Savannah. Six days later Sims was publicly whipped in Savannah, the first slave Massachusetts had returned.

Opponents of the Fugitive Slave Law of 1850 challenged it in the same way that opponents had challenged its predecessor. The Supreme Court ruling in strader v. graham (1851) could well have controlled the problem for years to come. After Jacob Strader, a citizen of Kentucky, helped several Negroes leave Kentucky, their alleged master sued Strader for damages. Strader claimed that the blacks were not slaves and that they made regular visits to Ohio where they worked as entertainers. These visits, Strader claimed, had caused them to become free even if they had previously been slaves because the Ordinance of 1787 forbade slavery in the Northwest Territory of which Ohio had been a part. When the case reached the Supreme Court, Chief Justice roger b. taney, speaking for the entire bench, declared that whatever the status of the blacks while outside Kentucky, they were subject to Kentucky laws upon their return. Nothing in the Constitution, he insisted, could control the law of Kentucky on this subject.

Meanwhile, opposing forces in Kansas were attempting to settle the issue in their own way. The bill to organize Kansas and Nebraska as territories had repealed the Missouri Compromise and left to the inhabitants of the respective territories the decision whether the states-to-be would be slave or free. Abolitionists, believing there should be no more slave states under any circumstances, were determined to make Kansas as well as Nebraska free states. To that end, they undertook first to settle Kansas with persons who would vote for a free constitution and thus to discourage slaveholders from settling in Nebraska, which they were certain would become a free state. Proslavery forces were determined at least to make Kansas a slave state. Both sides were certain they had the Constitution on their side. After bitter arguments and bloody battles, Kansas voted for a free constitution. The South felt that its ambitions had been frustrated and its rights under the Constitution violated as well.

The antislavery forces would not let the decision in Strader stand without challenge. They hoped it might be modified, or even overruled, in another decision offering some protection to slaves who had been in free states. Soon another case, dred scott v. sandford (1857), presented an ideal opportunity, they thought, to secure an unequivocal statement on the status of slaves in the free states and in the territories. Dred Scott, a Missouri slave, traveled with his master to the free state of Illinois, where they lived for a time, then to Minnesota, a free territory under the provisions of the Missouri Compromise. Upon their return to Missouri, his master sold Scott to a New York resident in a vain attempt to establish federal diversity jurisdiction when Scott subsequently sued for his freedom. When the Supreme Court announced its decision on March 6, 1857, Chief Justice Taney was again the spokesman.

Taney declared that because Negroes had been viewed as belonging to an inferior order at the time that the Constitution was ratified, they were not citizens within the meaning of the Constitution's provision defining the permissible jurisdiction of federal courts in cases between citizens of different states. Moreover Scott had not become free by virtue of the Missouri Compromise, because the Compromise was unconstitutional; Congress had no authority to prohibit slavery in the territories. In any case, Taney concluded, once Scott returned to Missouri his status was determined by Missouri law. In Missouri he was still a slave, and thus not a citizen of any state. The case was dismissed for want of jurisdiction.

The decision gave the proslavery forces more support than they could possibly have expected. Slavery's opponents called the decision wicked, atrocious, and abominable. Others hoped the decision would settle once and for all the grievous sectional issues that were about to destroy the Union. But the decision remained controversial. Its impact on events of the next few years is unclear. Perhaps it did not contribute significantly to the critical disputes and eventual divisions in the Democratic party. Perhaps the decision did not greatly stimulate the growth of the Republican party. Yet, as Don E. Fehrenbacher, the leading historian of the decision, has said, "it was a conspicuous and perhaps an integral part of a configuration of events and conditions that did produce enough changes of allegiance to make a political revolution and enough intensity of feeling to make that revolution violent."

The abolitionists, although embittered by the decision, did not relent in their effort to secure judicial support for their position. In a Wisconsin case, which came to the Supreme Court as ableman v. booth (1859), they attempted once again to have the Fugitive Slave Law of 1850 declared unconstitutional. Sherman M. Booth, an abolitionist editor in Milwaukee, had been arrested for helping a Negro escape from a United States deputy marshal. The state courts pronounced the law unconstitutional and ordered Booth released. When the case reached the Supreme Court in 1859, Chief Justice Taney reversed the state courts, censured them for presuming to pass judgment on federal laws, and held that the Fugitive Slave Law was fully authorized by the Constitution.

Booth was the last opportunity the abolitionists would have to take their cause to the Supreme Court. They would win local victories, such as the denial of the right of transit by slaves through a free state, but the Fugitive Slave Law remained intact until the civil war. It would take much more than court challenges or even local disturbances to dislodge the institution of slavery. The fact remained that slavery was so deeply imbedded in the Constitution itself and so firmly protected by it that both violent action and a constitutional amendment would be required to effect far-reaching and lasting change.

The violent action was not long in coming, but the outbreak of the Civil War did not put an end to slavery. President abraham lincoln insisted that the Confederate states were still in the Union and continued to enjoy the constitutional protection of slave property. Once the war began in earnest, however, there was no enforcement of the fugitive slave laws, and as slaves escaped to the Union lines, their emancipation became increasingly a part of the war's objectives. Congress early took steps to free certain slaves. The confiscation act of August 6, 1861, declared that owners forfeited slaves engaged in hostile military service. In July 1862 Congress took additional steps in the Second Confiscation Act by granting freedom to slaves of traitors. Furthermore, the slaves of all persons supporting the rebellion were "forever free of their servitude.…" Although Lincoln had serious doubts about the constitutionality of the act, he signed it.

Meanwhile, Congress was moving speedily to emancipate the slaves whom it constitutionally could. It could not pass a universal emancipation bill, but it could and did abolish slavery in the district of columbia and the territories. The emancipation bill for the District of Columbia precipitated a lengthy debate, during which President Lincoln persuaded the lawmakers to include an appropriation of $1,000,000 for compensation to owners not exceeding $300 for each slave and for the removal and colonization of the freedmen. Even so, Lincoln was reluctant to sign the bill. He signed it after Senator charles sumner of Massachusetts and Bishop Daniel A. Payne of the African Methodist Episcopal Church pleaded with him to approve it. On June 19, 1862, Congress passed and sent to the President a bill abolishing slavery in the territories, with no provision for the compensation of owners, and Lincoln signed it.

The President continued to argue that the federal government could not emancipate the slaves unless it also compensated the owners and colonized the freedmen. Unfortunately for him, his arguments convinced neither the representatives of the border slave states nor the Negro delegations that visited him. Consequently, he was compelled to face the mounting pressures to free the slaves without any apparent constitutional means of doing so. Even as he moved toward an emancipation policy, Lincoln kept his own counsel. He listened patiently to the constant stream of delegations, some urging him to free the slaves, others insisting that he do nothing. The only thing he revealed was that the matter was on his mind, day and night, "more than any other."

In the late spring of 1862 Lincoln decided that he would emancipate the slaves by proclamation. The bleak military outlook pressed the decision on Lincoln. In July he read to the Cabinet a recently completed draft and solicited suggestions regarding language and timing. The members confined their remarks to possible political and military consequences. Lincoln agreed that a propitious moment to issue it would be in the wake of a Union victory, lest some view it as an act of desperation.

Although the battle of Antietam, September 17, 1862, was not the clear-cut victory for which Lincoln had been waiting, he decided to act anyway. On September 22, 1862, he issued the Preliminary emancipation proclamation, to take effect on January 1, 1863. Abandoning the notion of colonization, the President, in the final Proclamation, declared free those slaves in states or parts of states under Confederate control. He further declared that the freedmen would be received into the armed service of the United States "to garrison forts, positions, stations, and other places, and to man vessels in said service." Even without a comprehensive emancipation policy, Lincoln is reported to have said as he signed the document, "I never, in my life, felt more certain that I was doing right than I do in signing this paper."

Lincoln realized, of course, that his proclamation, primarily a war measure, did not actually free the slaves. Although military action set many of them free, either state or federal action or both were needed to achieve real and permanent freedom in law and practice. By early 1865, Tennessee, West Virginia, Maryland, and Missouri had taken steps to free their slaves. Delaware and Kentucky, like the Confederate states, had taken no such action by the end of the war.

It early became clear that only national action, preferably through a constitutional amendment, could provide a uniform emancipation policy. Yet some doubted the wisdom or even the prudence of using the Constitution to reform a domestic institution such as slavery. Others questioned the legality of amending the Constitution while eleven states remained outside the Union. The latter circumstance was a major reason why the proposed amendment to forbid slavery throughout the nation initially failed to get the necessary two-thirds approval of the House after it had passed the senate in the spring of 1864. After the election of 1864 and with the war winding down, the House finally approved the amendment on January 31, 1865. The following day, Lincoln was pleased to sign the resolution submitting the amendment to the states for ratification.

By December 18, 1865, twenty-seven states, including eight former Confederate states, had ratified the thirteenth amendment, and it became part of the Constitution. One of the ironies was that the amendment could not have been ratified without the concurrence of the slave states whose governments Congress did not recognize in 1865. This seemed an appropriate way to end slavery, which was itself the most remarkable anomaly in the history of the country.

John Hope Franklin

(see also: Fugitive Slavery.)


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Bowen, Catherine Drinker 1966 Miracle at Philadelphia: TheStory of the Constitutional Convention May to September 1787. Boston: Little, Brown.

Curtin, Phillip 1969 The Atlantic Slave Trade: A Census. Madison: University of Wisconsin Press.

Du Bois, W.E. Burghardt (1896) 1954 The Suppression of the African Slave Trade to the United States of America. New York: Social Science Press.

Fehrenbacher, Don E. 1978 The Dred Scott Case: Its Significance in American Law and Politics. New York: Oxford University Press.

Finkelman, Paul 1981 An Imperfect Union: Slavery, Federalism, and Comity. Chapel Hill: University of North Carolina Press.

Franklin, John Hope 1963 The Emancipation Proclamation. Garden City, N.Y.: Doubleday.

Levy, Leonard W. 1950 Sims' Case: The Fugitive Slave Law in Boston in 1851. Journal of Negro History 35:39–74.

Zilbersmit, Arthur 1967 The First Emancipation: The Abolition of Slavery in the North. Chicago: University of Chicago Press.

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Slavery and the Constitution

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Slavery and the Constitution