Fugitive Slave Clause
The Slave Clause, also known as either the Fugitive Slave Clause or the Fugitives From Labor Clause, is the provision in Article Four of the United States Constitution, Section 2, Clause 3, that required a "person held to service or labour" (eg., slave) who flees to another state to be returned to the owner in the state from which they escaped. The passage of the Thirteenth Amendment to the United States Constitution, which forbids slavery, made the clause mostly moot.
The text of the Fugitive Slave Clause is:
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.
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.
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.
The 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 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.
In 1864, during the Civil War, an effort to repeal this clause of the Constitution failed. The subsequent passage of the Thirteenth Amendment to the United States Constitution abolished slavery, rendering the clause mostly moot.
However, it has been noted in connection with the Fugitive Slave Clause that people can still be held to service or labor under limited circumstances; the U.S. Supreme Court stated in United States v. Kozminski, 487 U.S. 931, 943 (1988) that "not all situations in which labor is compelled by physical coercion or force of law violate the Thirteenth Amendment."
- Hall, Kermit. The Oxford Companion to the Supreme Court of the United States, p. 925 (Oxford U. Press 2005).
- Salzman, Jack et al. Encyclopedia of African-American Culture and History, p. 2469 (Macmillan Library Reference, 1996).
- Finkelman, Paul. Slavery & the Law, p. 25 n. 62 (Rowman & Littlefield, 2002).
- Best, Stephen. The Fugitive's Properties: Law and the Poetics of Possession, p. 80 (U. Chicago Press 2010).
- In the Constitution, the British spelling ("labour" ) is used.
- Fehrenbacher (2001) p. 44.
- Amar (2005) pp. 257-258
- Amar (2005) p. 258. Lubet (2010) p.17.
- Lubet (2010) p. 18
- Lubet (2010) p.16
- Madison refers to Charles Pinckney as "Mr. Pinkney" and Charles Cotesworth Pinckney as "Genl Pinkney" or "Mr. C Pinkney;" here he refers to "Mr. Pinkney" Madison,James, Notes of Debates in the Federal Convention of 1787 August 28 http://avalon.law.yale.edu/18th_century/debates_828.asp
- Goldstone (2005) p. 174. Finkelman (1990) pp. 397-398
- Goldstone (2005) p. 174-175. Finkelman (1990) pp. 397-398
- The vote in the House was 69 for repeal and 38 against, which was short of the two-to-one vote required to amend the Constitution. See the Congressional Globe, 38th Cong., 1st Sess., 1325 (1864)
- Hyman, Andrew (2005). "The Little Word ‘Due’". Akron Law Review 38: 1.
- Amar, Akhil Reed. America's Constitution: A Biography. (2005) ISBN 0-8129-7272-4.
- Fehrenbacher, Don E. The Slaveholding Republic: An Account of the United States Government's Relations to Slavery. (2001) ISBN 0-19-514177-6.
- Finkelman, Paul. "The Kidnapping of John Davis and the Adoption of the Fugitive Slave Law of 1793". The Journal of Southern History, (Vol. LVI, No.3, August 1990).
- Goldstone, Lawrence. Dark Bargain: Slavery, Profits, and the Struggle for the Constitution. (2005) ISBN 0-8027-1460-9.
- Lubet, Steven. Fugitive Justice: Runaways, Rescuers, and Slavery on Trial. (2010) ISBN 978-0-674-04704-4.
- Madison, James. "Notes of Debates in the Federal Convention of 1787." http://avalon.law.yale.edu/subject_menus/debcont.asp