Slave Nation (16 page)

The Congress rejected that provision, which contained an internal contradiction. King George was condemned for forcing Africans into slavery and bringing them to the colonies. But this same criticism inferentially condemns the colonists for maintaining slavery.
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This is a strange point to make in support of a struggle for equality. Why then include it?

The first part of Jefferson’s attack was on the slave trade itself. That was in the Virginia tradition. Virginia had publicly opposed the foreign slave trade since 1772, partly for fear of an overly large population of slaves who might be difficult to control, and partly because Virginia, with a surplus of slaves, was prepared to sell them to others.

The second part of his criticism capitalized on the fear of black uprisings, made imminent by Lord Dunmore’s call in 1775 for slaves to join in upholding the empire. The Virginians believed that Dunmore’s action would encourage slave revolts that would inevitably lead to rape, pillage, and murder. Jefferson’s clause emphasized this threat to the lives of the white colonists. He may have believed that the fear of black revolts would lead the slave interests to permit the antislavery comment and ignore the implicit condemnation of their activities. If so, he was disappointed.

Jefferson explained the deletion of the clause, while emphasizing its antislavery character and ignoring its criticism of the encouragement of slave revolts:

The clause…reprobating the enslaving the inhabitants of Africa, was struck out in complaisance to South Carolina and Georgia, who had never attempted to restrain the importation of slaves, and who on the contrary still wished to continue it. Our northern brethren also I believe felt a little tender under those censures; for tho’ their people have very few slaves themselves, yet they have been pretty considerable carriers of them to others.
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The clause did criticize the king for enslaving Africans, but it also criticized him for offering to free them if they turned against the colonists. To characterize the clause as one “reprobating slavery” is to tell but half the story.
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Jefferson’s list of colonial grievances that make up the body of the Declaration is haunted by the
Somerset
decision in which Lord Mansfield stated that Parliament had the final authority over slavery in the colonies. The king is accused of conspiring with Parliament to enact “pretended legislation” and “declaring themselves invested with power to legislate for us in all cases whatsoever.” This is a clear reference to the Declaratory Act, and its threat, after
Somerset
, to the institution of slavery.

The penultimate paragraph repeats this grievance, this time against “our British brethren.” “We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us.”

The “unwarrantable jurisdiction” included the
Somerset
case, the Declaratory Act of 1766, and the repugnancy clause in the colonial charters—all of which converged to create a hazard to the institution of slavery.

The agreement to preserve slavery in the colonies, negotiated at the First Continental Congress in 1774 with John Adams, was kept in the Declaration of Independence. Judge A. Leon Higginbotham, reviewing the history of slavery in Virginia and several other states, concluded: “From the perspective of the black masses, the Revolution merely assured the plantation owners of their right to continue the legal tyranny of slavery.”
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The white delegates who voted for the Declaration of Independence would have agreed with these “black masses.” The same Congress that voted for the Declaration of Independence in 1776 promptly made clear that slaves were the property of their masters and that the principle of the
Somerset
decision had no place in the government established by the Articles of Confederation.

Richard Henry Lee’s motion for independence on June 7, 1776, required the Congress to establish a national government to replace British rule.
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Congress promptly asked John Dickinson of Pennsylvania to prepare a draft of Articles of Confederation among the former colonies that now called themselves states. Dickinson was a slave-holding lawyer and the richest man in Philadelphia. He was already famous as the author of “Letters from a Farmer in Pennsylvania,” which in 1767 and 1768 challenged the authority of Parliament to levy any taxes on the colonies.
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Dickinson, while still unsure of the wisdom of separation from Britain, prepared his draft promptly. The Congress began to debate this draft on July 12, 1776, only a week after the Declaration was adopted.

Dickinson proposed a central government with general powers in the legislature while it was in session, and in a “Council of State” when it was recessed.
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With respect to the relation between the central government and the colonies, his draft stated:

    Article XVIII. The United States assembled shall have authority for the defense and welfare of the united colonies and every of them.
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    Article III. Each colony shall retain and enjoy as much of its present laws, rights, and customs as it may think fit, and reserves to itself the sole and exclusive regulation and government of its internal police,
in all matters that shall not interfere with the articles of this confederation.
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(emphasis added)

    Article XVIII. The United States assembled shall have the sole and exclusive right and power of appointing a council of state and such committees and civil officers as may be necessary for managing the general affairs of the United States, under their direction while assembled, and in their recess, of the council of state.
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These provisions relating to the authority of Congress over the states sounded similar to the Galloway plan that had been buried by the First Congress in 1774.
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The national government had authority for defense and welfare of each colony. State control of internal affairs was subject to the power of the central government to manage these “general affairs”—just as the British Declaratory Act of 1766 gave Parliament control of the colonies in “all cases whatsoever.”
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The Galloway plan had centralized control of such matters in the American-British Parliament.
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As in both of these earlier situations, these “general affairs” included slavery.

This possibility appalled John Rutledge of South Carolina when he saw the Dickinson draft in late June. He wrote to John Jay of New York on June 29, 1776, asking him to come to Philadelphia to review Dickinson’s plan:

If the plan now proposed should be adopted nothing less than ruin to some colonies will be the consequence of it. The idea of destroying all provincial distinctions and making every thing of the most minute kind bend to what they call the good of the whole, is in other terms to say these colonies must be subject to the government of the eastern provinces.…I dread their low cunning, and those levelling principles which men without character and without fortune in general possess, which are so captivating to the lower class of mankind, and which will occasion such a fluctuating of property as to introduce the greater disorder. I am resolved to vest the Congress with no more power than what is absolutely necessary, and to use a familiar expression to keep the staff in our own hands, for I am confident if surrendered into the hands of others a most pernicious use will be made of it.
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This candid comment captures the concerns that the new government, influenced by northerners, would destabilize the political and economic order. Rutledge feared that the poorer but more numerous would take or tax the property (slaves) of the rich.

The southern leaders of the time saw risks to slavery at every turn; from Richard Bland’s proposal for manumission in 1769, the
Somerset
decision in 1772, and their need for John Adams’s support for slavery in 1774, to their mutilation of George Mason’s declaration of rights in Virginia in 1776 and South Carolina’s Thomas Lynch’s threat to walk out of the Congress in July of 1776 if slaves were not recognized as “property.”

Thomas Burke of North Carolina shared Rutledge’s perception that the Dickinson draft would permit the general government virtually as much power as the British government had claimed over the colonies before the Revolution:
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I thought [Article III] left it in the power of the future Congress or general council to explain away every right belonging to the states, and to make their own power as unlimited as they please. I proposed, therefore, an amendment, which held up the principle that all sovereign power was in the states separately, and that particular acts of it, which should be expressly enumerated, would be exercised in conjunction and not otherwise; but that in all things else each state would exercise all the rights and powers of sovereignty, uncontrolled.
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Burke and Rutledge won their battle. The Articles of Confederation were adopted in November 1777, while Henry Laurens, a South Carolina planter and former slave trader, was president of the Congress.
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They provided:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States, in Congress assembled.
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The shift is stark, from a draft which granted general powers to the federal government to a states’ rights provision which limited the powers of government so that there would not be “fluctuating of property”—feared by Rutledge and Burke because it jeopardized slavery.
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Slavery within a colony could not be regulated by the Congress under the Articles.
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Thus the South preserved that freedom from external regulation of slavery that it had sought in moving toward independence from Britain.

This freedom was made more secure by other provisions in the Articles which required unanimity in order to amend an article, nine states to agree on many important matters, and a majority of seven states to act on other matters.
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There was, as yet, no concept of American national citizenship. If there was to be a union of states, each state would have to be obligated to respect the rights of people from other states to reside, work, and engage in commercial activities. In July, 1774, Rhode Island adopted a statute that had an antislavery tone. Its preamble stated, “Those who are desirous of enjoying all the advantages of liberty should be willing to extend personal liberty to others.”
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This high sounding phrase was followed by major restrictive qualifications.
¹⁹

Dickinson devoted two articles in his draft to the privileges of “inhabitants” of one colony while in another.
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Article VI prevented a state from reducing the existing rights of inhabitants of another state. Article VII assured that the inhabitants of one state would have the same rights in another state with respect to commercial activities and movement as that state’s own citizens. Dickinson’s draft did not address the issue of a slave entering a state that prohibited slavery.
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This issue was only faced in November, 1777.

Between the time of the Declaration of Independence and the autumn of 1777, Congress was preoccupied with conducting the war and avoiding capture as the British occupied New York and New Jersey and overran Philadelphia. When Congress moved to York, Pennsylvania, in late September, 1777, it made a sustained effort to finish work on the Articles.
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On November 1, Henry Laurens of South Carolina became president of the Congress. Laurens was a planter and former slave trader, which was said to have made him the richest man in the colony. He had been in London at the time Lord Mansfield decided the
Somerset
case and had written to a friend and associate that the lawyer for Somerset’s owner had been a failure, but—as a cautious man—would put nothing further in writing.
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He had abandoned the slave trade in the early 1760s for reasons that appeared more practical than moral, enabling him to concentrate on planting and his childrens’ education. But he continued to advise and provide financial assistance to younger men going into the trade as late as 1774.
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Henry Laurens had spent 1770–1773 in Europe supervising his son’s education. His son John was intensely antislavery, and futilely sought to raise black regiments during the latter part of the war. John was killed in one of the last skirmishes of the war, on August 27, 1782, nearly a year after the British defeat at Yorktown.
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When Henry Laurens returned to South Carolina in 1773, he was elected to the first Continental Congress, where he attracted favorable attention from John Adams. In August, 1776, a month after the Declaration of Independence, he wrote, “I abhor slavery.” He also said that he planned to free a large number of his own slaves.
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His awareness of the
Somerset
decision, discussed in Chapter Two, established a link between that decision and the actions of the Congress after he became president on November 1, 1777.
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The work on the Articles of Confederation was thought to be completed by Friday, November 7. Nevertheless, on Monday, November 10, a group of additional propositions were referred to a committee consisting of Richard Henry Lee of Virginia, Richard Law of Connecticut, and James Duane of New York.
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One of the new propositions addressed the rights of slave owners to take their slaves into other states. This amendment made clear that the privileges and immunities of a person in state A who was a resident of state B applied only to the “citizens,” not the “inhabitants” of state B. The amendment allowed the people in each state free movement to and from other states for their “persons and property.”
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This change should have been enough to calm fears that the
Somerset
decision might apply under the Articles, because slaves were not “citizens”—but it did not, possibly because slaves could still have been considered “people.” Two days later the proposal was sharpened to make clear that
only
“free inhabitants” and “free citizens” were entitled to this freedom of movement between the states.
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