Slave Nation (17 page)

This change should have settled the question of whether slaves had freedom of movement but, again, it did not. What was to happen if a state chose to adopt the rule of the
Somerset
case, that a slave brought into its jurisdiction became free? That possibility lurked only because many southerners, including President Laurens, knew about the ruling in
Somerset
. They could readily imagine that a northern state opposed to slavery, such as Rhode Island, might apply the common law as announced in
Somerset
, and free the slaves that entered its jurisdiction.
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This risk was addressed directly. On November 14, the clause was amended again to state explicitly that the free people of each state shall have free access to and from any other state, and enjoy :

The privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively,
provided that such restrictions shall not extend so far as to prevent the removal of property imported into any state to any other state of which the owner is an inhabitant.
³²
(emphasis added)

Reading this clause with an understanding that slaves were property, it is a direct repudiation of the decision in Somerset’s case. Legal historian Charles Warren observed, “though phrased in general terms [this section] was intended to apply to slave property.”
³³
Under this clause, a slave could not become free by entering or escaping into a “free” state, regardless of the laws of that state.
³⁴

The slave owners’ rights regarding his slave property were guaranteed in all states where he had taken his slaves, even if the law of that state would have set them free. Legal historian William Wiecek states that “the clause might have been construed to restrain the states from interfering with a sojourning or in-transit master’s rights in his slave.”
³⁵

This “restraint” is inconsistent with the principle of state autonomy that had been so important to Rutledge and Burke, when they were insisting that each state have full control over its internal policies. States’ rights were recognized to protect slavery from outside interference and slave owners’ rights were recognized to protect slavery in states that sought to reject it.
³⁶
Every state was required to recognize “property in slaves” created by the laws of the other states.
³⁷
Thus the articles prevented northern whites from excluding slavery from their states. In this sense, the clause was the precursor of the fugitive slave clause in the United States Constitution, the Northwest Ordinance, and in subsequent federal laws.
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The issue of states’ rights to deny slavery would become a cause celebre in nineteenthcentury events leading to the Civil War when supporters of slavery sought to impose their will on whites, both North and South, who opposed slavery.
³⁹
Laurens’s apparent antipathy toward slavery in 1776 did not prevent him from presiding over its protection in 1777.

The agreement to protect slavery that was reached at the First Congress in 1774 and maintained in the Declaration of Independence in 1776, was kept in the Articles of Confederation in 1777. Slaves remained property, regardless of the law of the state where a slave might be found. Five years after Lord Mansfield had declared slavery so odious that it could be justified only by positive law, and one year after the colonies seceded from Britain under a banner reading “all men are created equal,” the Continental Congress adopted positive law that made sure that the rule in the
Somerset
case did not apply in the colonies.

The Articles were sent to the states for the unanimous ratification required for adoption. Ratification was delayed for four years as a result of conflicts concerning the lands west of the colonies, between Virginia and New York, who had major claims, and the “landless states,” including Maryland, that had none. These states feared that the states with land claims would become more important and influential over time. Maryland would not ratify the Articles until both New York and Virginia agreed to surrender their claims to the Continental Congress.
⁴⁰

With the war going badly, particularly in the South where the British made a major invasion in 1778, these states agreed to cede their land claims to Congress, creating a territory that was not part of any state. When Virginia ceded a huge land area that included all the territory north of the Ohio River, the agreement provided that “certain settlers...who have professed themselves citizens of Virginia, shall have their possessions and titles confirmed to them, and be protected in the enjoyment of their rights and liberties.”
⁴¹
Presumably this included protecting their property in slaves, even though they would no longer be Virginians.

Maryland was the last state to ratify the Articles of Confederation. They became effective on March 1, 1781. Slavery was then safe from Somerset’s ghost as long as the Articles of Confederation were the basis for the union of the states. The surrender of British troops at Yorktown occurred on October 19, 1781. It was a victory for the Revolutionary Army that effectively ended the war. With the Treaty of Paris in 1783, the United States acquired a huge territory, all of which was subject to the government under the Articles of Confederation.

In the early 1780s, two streams of events merged to create a huge national territory on the American mainland that was not a part of any state. The original thirteen states had three hundred twenty-five thousand square miles. By 1790, the territory had increased to 864,746 square miles as a result of the Treaty of Paris which ended the Revolution. The American-French victory over the British at Yorktown on October 19, 1781, assured that the Revolution would succeed. The Treaty of Paris in 1783, negotiated by John Adams, Benjamin Franklin, and John Jay confirmed that the United States would “own” 539,746 square miles to the west of the colonies as far as the Mississippi River, except for parts of Florida, southern Louisiana, and Canada.
¹

By 1781, the states with western land claims had agreed to cede them to the Continental Congress in order to secure adoption of the Articles of Confederation. The major cession agreements came from Virginia and New York. The Virginia cession agreement conveyed to the Continental Congress “all right, title, and claim, as well of soil as jurisdiction, which this Commonwealth hath to the territory.”
²

Thus a huge national territory was created, more than double the size of the thirteen colonies combined. The lure of the West was felt by northerners and southerners alike. They saw great opportunities this territory created for expansion of agriculture, for settling the nation’s war debts to both citizen soldiers and foreign countries, and for land speculation that could generate great riches. From the beginning, northerners and southerners had different perspectives on one crucial matter in the new territory—slavery.
³

Southerners producing tobacco needed new land because tobacco ruined the soil after a few years. Northerners, especially former military personnel, wanted new space in the Ohio country—space that was free of slavery. Most of the work of settling new lands was hard labor, and the presence of slavery would have reduced the value of white labor by half.

Land speculators from the 1760s on had seen the great fortunes to be made by selling shares in the expanded west, once British restraints on settlement were removed. Political figures both North and South believed that the West, when settled, would weigh heavily in the political future of the nation.

The Treaty of Paris was ratified by the Congress under the Articles of Confederation, with the requisite nine states present.
⁴
The Articles of Confederation gave the Congress “the sole and exclusive right and power of…entering into treaties and alliances…[if]…the delegates of nine colonies freely assent to the same.”
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But it did not expressly state that Congress had any power to govern territories that were outside of any state. The Articles had been written while the nation’s survival was hanging by a thread. Congress was fleeing for its life from the British forces, not thinking about the vast expansion of their then unstable union.

Once the Treaty of Paris had been ratified by Congress and by Britain in 1784, the cession agreements enabled the United States to take control of the ceded territory. This power was asserted in early 1784, a month after Virginia ceded her claims to Congress. Much of the territory, both north and south of the Ohio River, had been claimed by Virginia and other southern states where slavery was established and protected by law. The law of Virginia included its Declaration of Rights in 1776 that had been carefully written to assure that slaves would have no constitutional rights.
⁶
These laws were not affected by the treaty or by the cession agreements to the United States.
⁷
As a result, slavery was lawful in all the territory acquired by the United States under treaty and cession agreements until the law of that territory was changed. By 1784, Pennsylvania had enacted a gradual abolition program. Massachusetts had already abolished slavery by judicial decision in 1783.

The issue of slavery in the territories was raised in 1783, the year before the Treaty of Paris was fully ratified. The man who raised it was Timothy Pickering from Massachusetts, the highly regarded quartermaster general in the Revolutionary Army and a puritanical opponent of slavery all his life.
⁸
He petitioned Congress to purchase land that had been ceded to it in order to create a new state in the Ohio country to be settled by veterans who had been paid in script that was “not worth a continental.”
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His petition included an express prohibition on slavery.
¹⁰

Congress never acted on that petition, but the importance to the northern states of a territory free of slavery, suggested by a respected leader of the now disbanded Revolutionary Army, demonstrated the thinking of many veterans. Living and laboring in the highly populated northeast held little future for them. Their attention, as Pickering’s proposal demonstrated, focused on unsettled lands to the west. Settling uncleared lands was hard farm labor; clearing, planting, and defending the emerging farmland. Because of the increasing recognition that slavery was wrong, arising from religious and revolutionary rhetoric, more white workers were now opposed to slavery on principle. They also knew that they would have great difficulty competing with slave labor that was “free” to the plantation owner and that they would have lessened influence in any state dominated by the plantation owners. The perception and reality that the presence of black labor reduced the value of white labor was probably a significant factor in the hardening of a negative perception of blacks on the part of white laboring class workers.
¹¹

The restlessness of these unpaid veterans in post-war economic conditions was demonstrated most vividly by Shays’s Rebellion in Massachusetts in 1786. This rebellion of veterans turned into debtor-farmers who closed some courts, was put down by a force paid for by the eastern merchants.
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Similar resistance by debtors to court enforcement of their obligations—which included imprisonment for debt—flared that year along the eastern seaboard.
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In 1784, after the treaty with Britain was formalized, Jefferson prepared a plan for the temporary government of present and future territories.
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It divided the territory into fourteen future states, ten of them north of the Ohio, and authorized the settlers to establish a temporary government adopting “the constitution and laws of any one of the original states.” Each new territory could thus choose to be a free or slave territory.

Jefferson addressed the issue of slavery as follows:

After the year 1800 of the Christian era, there shall be neither slavery nor involuntary servitude in any of the said states, otherwise than in punishment of crimes, whereof the party shall have been convicted to have been personally guilty.

This position was a far cry from the Jefferson of 1776. In the same month that he drafted the Declaration of Independence, he submitted to influential friends in Virginia a draft constitution for Virginia. It included this language under the heading “Slaves:” “No person hereafter coming into this county [?] shall be held within the same in slavery under any pretext.”
¹⁵

This provision was consistent with the Virginia opposition to the importation of slaves, but it was not Jefferson’s position in 1784 when drafting a plan for the territories. There, he permitted slavery to continue with respect to all slaves, imported or otherwise, for another sixteen years. However, even this position fell one state short of adoption. Massachusetts, Connecticut, Rhode Island, New Hampshire, New York, and Pennsylvania supported it; Maryland, South Carolina, and Virginia voted against it. North Carolina was divided. Jefferson later blamed John Beatty of New Jersey who had a cold and stayed home.
¹⁶
Had John Beatty voted for the measure, it would have passed. Jefferson wrote to a French historian:

The voice of a single individual would have prevented this abominable crime from spreading itself over the new country. Thus we see the fate of millions unborn hanging on the tongue of one man, and Heaven was silent in that awful moment!
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Did Jefferson mean to blame God or Beatty? Either way, his analysis was wrong. Beatty was not the only delegate who could have changed the result. If Monroe of Virginia, a follower of Jefferson and Madison, had been present and voted to support the provision and either Hardy or Mercer been absent, it would have passed.
¹⁸
In any event, southern votes defeated Jefferson’s modest proposal.
¹⁹
The rest of the ordinance was adopted ten to one, South Carolina dissenting.
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