The Convention’s Forgotten Abolitionist, Continued

    

I would like to begin by thanking the other contributors to this forum for their insightful essays, which for the most part focus on different topics than mine did—the overseas slave trade and the fugitive slave clause rather than the three-fifths compromise. I have no particular bones to pick with anything that the authors say, so I will instead use this space to try to complement their efforts by extending my analysis of Gouverneur Morris’s contributions at the Constitutional Convention to include these other topics.

As Jason Ross details in his essay, as of late August the delegates had agreed to protect the overseas slave trade from a congressional ban until the year 1800. On August 25 the provision was extended for another eight years, thanks to a proposal by Charles Cotesworth Pinckney of South Carolina that was uniformly insisted upon by the delegates of the Deep South. As with the three-fifths compromise, Morris had evidently bitten his tongue throughout much of the debate over this clause, but was ultimately unable to contain himself.

The clause as it then stood was worded in an extremely convoluted manner so as to avoid explicitly naming what it was really about: “The migration or importation of such persons as the several States, now existing, shall think proper to admit, shall not be prohibited by the Legislature prior to the year 1800 [now 1808].”[1] Morris proposed that they stop beating around the bush and change the provision “at once” so that it would instead read: “The importation of slaves into North Carolina, South Carolina, and Georgia, shall not be prohibited, &c.” Not only would this wording avoid “ambiguity,” he suggested, it would also be “most fair” because it would make clear that “this part of the Constitution was a compliance with those States.” He cheekily added that if the change “should be objected to, by the members from those states, he should not urge it.”

Obviously, the aim of Morris’s deliberately impolitic suggestion was to shame the advocates of the slave trade. George Mason of Virginia, who had opposed that trade as fiercely as anyone, ingenuously objected that “naming North Carolina, South Carolina, and Georgia” within the clause might “give offence to the people of those States”—but of course that was the whole point. After a few other delegates protested, Morris withdrew his motion. He had underscored the fact that the overseas slave trade was so heinous that even its proponents were reluctant to admit what they were advocating, but he was ultimately powerless to prevent the inclusion of the clause within the Constitution. To his horror, the Deep South would have another two decades to continue kidnapping Africans with the full protection of the national government—a window, we now know, in which more enslaved people were imported into the United States than in any prior twenty-year period.[2]

The final major provision related to slavery, the fugitive slave clause, was tacked onto the Constitution almost at the last minute, with next to no debate. As Christa Dierksheide’s essay notes, the idea of including such a clause was proposed by Pierce Butler of South Carolina on August 29, just a couple of weeks before the Convention’s close, and it passed without opposition. Apparently the antislavery delegates were too tired to commence yet another contest over slavery at this late date, or perhaps—even more disgracefully—they welcomed the idea of a fugitive slave clause because it would prevent an influx of runaways from inundating the North.

There is no record of Morris saying anything about this provision when it came to the Convention floor, but he did alter it in two small but important ways during the drafting process. First, Butler’s version of the clause had described enslaved people as being “bound to service or labor,” but Morris tweaked it so that it referred to them as “legally held to service or labor.” The addition of the term “legally” was likely meant to avoid giving any kind of sanction to the then-common (though illegal) practice of capturing free Black people and enslaving them on the pretense that they were in fact runaways.

Second, Butler’s version of the clause had stipulated that escaped slaves “shall be delivered up to the person justly claiming their service or labor.” Morris changed this concluding phrase to read that escapees “shall be delivered up, on claim of the party to whom such service or labor may be due.” With this shift in wording, he was able to dispose of the word “justly,” thereby eliminating any implication that holding a person in bondage could be just. As historian Sean Wilentz notes, by taking this small but deliberate step Morris and the Committee of Style ensured that “the fugitive slave clause did not acknowledge [the validity of] property in man, let alone slaveholders’ rights to such property.”[3]

The final version of the clause stipulated that “no person held to service or labor 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 labor; but shall be delivered up, on claim of the party to whom such service or labor may be due.” Like the other major constitutional provisions relating to slavery, this one studiously avoided the words “slave” and “slavery”—an omission that Frederick Douglass would later point out, and use to such good effect, as Brian Satterfield’s essay highlights. As another scholar has noted, however, in the fugitive slave clause “harsh reality bled through the words ‘held’ and ‘escaping’: This was a clause about humans in bondage seeking liberation.”[4]

When it came to these two clauses, and especially the three-fifths clause, I have tried to show, Gouverneur Morris effectively served as the framers’ conscience—even if that conscience was too often ignored.

[1] Unless otherwise noted, all quotations in this essay are taken from the relevant record in Debates in the Federal Convention of 1787 by James Madison, a Member, ed. Gordon Lloyd (Ashbrook Center, 2014).

[2] See Sean Wilentz, No Property in Man: Slavery and Antislavery at the Nation’s Founding (Harvard University Press, 2018), 59.

[3] Ibid., 145; see also 110–111.

[4] Akhil Reed Amar, America’s Constitution: A Biography (Random House, 2005), 257.