Authors: Alfred W. Blumrosen
Slave Nation (34 page)
43
. Jefferson, “Autobiography,” in Ford,
Works
, 28
44
. Ellis,
American Sphinx
, 52
45
. Higginbotham,
In the Matter of Color
, 371. The states reviewed are in addition to Virginia, Massachusetts, New York, South Carolina, Georgia, and Pennsylvania.
C
HAPTER
8
T
HE
A
RTICLES OF
C
ONFEDERATION
R
EJECT
Somerset
AND
P
ROTECT
S
LAVERY
1
. Dickinson was asked to prepare a draft. Burnett,
Continental Congress
, 213–229, describes the debates on the articles during 1776. He concludes that Dickinson was much influenced by Benjamin Franklin’s plan of 1775. Franklin’s plan, however, concluded differently. It did not give general authority to a central government.
2
. Ferling,
Leap in the Dark
, 70
3
. Jensen,
Articles of Confederation
, 254–262 (Dickinson Draft); 263–270 (as adopted). Dickinson refused to sign the Declaration of Independence and did not participate in the deliberations after July 4, 1776.
4
. Jensen,
Articles of Confederation
, 259, ¶2. This statement of authority is tucked in the middle of Article XVII, possibly to avoid immediate attention by a reader.
5
. Jensen,
Articles of Confederation
, 254
6
. Ibid. 259, ¶1
8
. For the Declaratory Act of 1766, see Ch. 2 at note 12
9
. For the Galloway Plan, see
Chapter 6
at note 35
10
. Smith,
Letters of Delegates
, Vol. 4, 338; Jensen,
Articles of Confederation
, 139
11
. Jack N. Rakove,
National Politics
, 164–176
12
. Burke’s position is set forth in a letter of April 29, 1777, Smith,
Letters of Delegates
, Vol. 3, 671–73. Virginia and Pennsylvania expected to be the most important states in the new confederation, along with Massachusetts. On Burke’s contributions to the debate on the Articles, see Morris,
Forging of the Union
, 87–91
13
. Jensen,
Articles of Confederation
, 175 describes the “weakening” of the powers of the federal government which had been proposed by Dickinson.
14
. Art. II, Jensen,
Articles of Confederation
, 263
15
. See Burnett,
Continental Congress
, 237–39
16
. See Morris,
Forging of the Union
, 80–91
17
. Jensen,
Articles of Confederation
, Art. XIII, 270, Unanimity to amend. Art. 9, ¶6, 269, Nine states required for some issues, seven for all others.
18
. John Russell Bartlett, Ed.,
Records of the Colony of Rhode Island
, Vol. III (Providence: A. C. Green, 1856–65) 251-253
19
. It applied only to slaves thereafter brought into the colony. It exempted travelers who took their slaves with them when they left and slaves of “inhabitants of either of the British Colonies, islands or plantations” who entered the colony “with an intention to settle or reside, for a number of years.” It also excluded slaves whose owners had brought them from Africa and been unable to sell them elsewhere, if the owner would post a £100 bond to guarantee their removal within a year. This clause was deleted in 1784, thus prohibiting slave trading in Rhode Island. The same act provided for manumission of persons born after March of that year. A 1779 act prohibited slaves from being sold out of the state against their consent. These acts taken together make clear that the abolitionist tone of the preamble of the 1774 act was tempered by a recognition of the rights of existing slave owners in Rhode Island, and a desire to permit slave owners to come to the colony, which they did. MacLeod,
Slavery, Race
,32
20
. Jensen,
Articles of Confederation
, 255. “Art VI. The inhabitants of each colony shall henceforth always have the same rights, liberties, privileges, immunities, and advantages in the other colonies which the said Inhabitants now have, in all cases whatever, except in those provided for by the next following Article.
“Art. VII. The inhabitants of each colony shall enjoy all the rights, liberties, privileges, immunities, and advantages in trade, navigation, and commerce, in any other colony, and in going to and from the same from and to any part of the world, which the natives of such colony [or any commercial society, established by its authority] shall enjoy.”
21
. The draft mentioned “white” inhabitants only in reference to the contributions of each colony for war and general welfare, which was to be in proportion to the number of inhabitants, except Indians not taxed, pursuant to a triennial census which would distinguish white inhabitants (Art. XI); and in reference to the quota of troops from each colony which was to be proportioned to the number of white inhabitants. (Art. XVIII ¶2). Jensen,
Articles of Confederation
22
. See Burnett,
Continental Congress
, 248–254
23
. See
Chapter 2
at note 28. He was not cautious enough with his papers. While on a mission to France, his ship was intercepted by the British who seized a batch of his papers that did not sink when tossed overboard. As a result, he spent considerable time in the Tower of London. After Yorktown, he was exchanged for Lord Cornwallis. He was appointed as a commissioner to negotiate the Treaty of Paris that ended the Revolutionary War. His only contribution, before he died, was to insist on a provision in the treaty that would require Britain to return the slaves that they had taken. That provision created great difficulties in its implementation. See Lindsay, “Diplomatic Relations,” 391–419
24
. In 1774, he had written that, “Entering into the African trade is so repugnant to my disposition & my plan for future life that it seems as if nothing but dire necessity could drive me to it.” However, in the same letter, which turned down a request for a partnership relation, he offered to go surety for Mr. John Lewis Gervais, and to obtain “several cargoes of Negroes,” if he had not thought that these would be “injurious to your interest.” Rogers, “Henry Laurens to John Lewis Gervais, Feb. 5, 1774,”
Papers of Henry Laurens
, Vol. 9, 263–64
Henry Laurens’s purported distaste for the trade is also inconsistent with his going surety for John Hopton in the amount of ten thousand pounds sterling, “ In order the more effectively to enable you to make offers and accept the sale of African cargoes.…We think you in all respects capable of rendering as good accounts of sales for Negroes as any gentleman in Charles Town of your age and experience.” Ibid. Vol. 7, 488–89
While Laurens turned down Gervais’s request to become his partner in the African trade, he helped find Gervais a partner and offered to back him in such a venture. Ibid. Vol. 8, 496–98; 516–518, 528–30
25
. Gregory D. Massey,
John Laurens and the American Revolution
(Columbia: University of South Carolina Press, 2000)
26
. “I abhor slavery,” he wrote in a letter to his son James on August 14, 1776, and indicated his intention to begin manumission of his hundreds of slaves. Rogers,
Papers of Henry Laurens
, Vol. 1 99–100
28
.
JCC
, Vol. 8, 885
29
. Ibid. 888–89. The drafts contained some language variations on the privilege and immunities clause. One version provided:
“The citizens of every state, going to reside in another state, shall be entitled to all the rights and privileges of natural born free citizens of the state to which they go to reside;
and the people of each state shall have free egress and regress for their persons and property to and from every other state, without hindrance, molestation, or imposition of any kind
. Provided that if merchandise of any sort be imported for the purposes of traffick within any state, that the person so importing shall be liable to the same impost and duties as the people of the state are by law liable to where such importations are made, and none other.” [emphasis added]
30
. “The free inhabitants of each of these states—paupers, vagabonds, and fugitives from justice excepted—shall be entitled to all privileges and immunities of free citizens in the [respective] several states; and the people of each state shall have free ingress and regress to and from any other state, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively.” Nov. 14, 1777,
JCC
Vol. 8, 907. “Respective” appeared in the draft as adopted, on Nov. 13. Ibid. 899 “Several” replaced it in the final version. Congress also adopted a rendition and a full faith and credit clause relating to the “records, acts, and judicial proceedings of the courts and magistrates of every other state.”
31
. One technical holding in the
Somerset
decision was that the law of the jurisdiction in which the slave was held determined whether the slave owner could send him out of that jurisdiction against his will. Lord Mansfield found there was no “positive law” in Britain permitting the slave owner to take such an action. A similar decision could come from a state where slavery was permitted without specific statutory authorization.
32
.
JCC
Vol. 8, 907. The final version was adopted November 14.
33
. Charles Warren,
The Making of the Constitution
, (Boston: Little Brown & Co., 1929) 561
34
. This version made specific Dickinson’s draft’s provision for “free egress and regress for their persons and property.” See
Chapter 8
note 30. The general issues of trade and commerce and the taxation of merchants were both encompassed elegantly in the Nov. 11 draft. There seems no occasion to change the general right to move “persons and property” to the more specific “right of removal” language of Nov. 13 other than to emphasize the rejection of the rule in the
Somerset
case.
35
. Wiecek,
Antislavery Constitutionalism
,59
36
. The same provision, Art. IV of the Articles, that repudiated the
Somerset
decision included the following language: “If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any state, shall flee from justice, and be found in any of the united states, he shall, upon demand of the governor or executive power of the state from which he fled, be delivered up and removed to the state having jurisdiction of his offense.” The next sentence required that “full faith and credit” be given by each state to “the records, acts, and judicial proceedings” of courts in every other state. If escaping from slavery constituted a “felony or high misdemeanor” and a charge was filed with a state court, this provision would require a state in which the slave was found to return him to the charging state.
37
. The anti-
Somerset
clause specifically encompassed the slave brought into the jurisdiction by the master, but it might also encompass the slave who escaped into the jurisdiction. The master might plead that he had entered the jurisdiction with the intent to reside, and “found” his escaped slave there and was entitled under the Articles to take him out. The situation of the escaped slave became more important as the slaves learned of the existence of free states, commencing in 1780 with the gradual emancipation law of Pennsylvania.
The Articles did not contain any equivalent to the supremacy clause in Art. VI Sec. 2 of the Constitution. Therefore the legal significance of this section is not clear. The Articles were in effect only between 1781 and 1789, so there was not time to develop a jurisprudence through state courts. The Articles were ratified by each state legislature and therefore would appear to be binding on the state courts as enactments of the state legislature. The experience of ratification by a legislature led the drafters of the Constitution to propose ratification by specially elected conventions so that the Constitution would be recognized as “higher law” that state statutes. Rakove,
Original Meanings
, 94-130.
38
. Fehrenbacher,
Dred Scott Case
, 22, discussed the interpretation of the fugitive slave act of 1793 in
Prigg v. Pennsylvania
. “The slaveholder…carried the law of his own state with him when he pursued a fugitive into a free state. The implications of such extraterritoriality were startling, though [Justice]Story left them unexplored. His ruling had the effect, for instance, of compelling free states to accept the slave-state principle that a black or mulatto was a slave unless he could prove otherwise. One-half of the nation must sacrifice its presumption of freedom to the other half’s presumption of slavery.” See also Arthur R. Landever, “Those Indispensable Articles of Confederation: Stages in Constitutionalism, Passage for the Framers, and Clue to the Nature of the Constitution,” 31
Arizona Law Review
(1989) 79, 87
39
. See William Lee Miller,
Arguing About Slavery: John Quincy Adams and the Great Battle in the United States Congress
(New York: Vintage Books, 1995)
40
. Jensen,
Articles of Confederation
, 225–238
41
.
JCC
Vol. 26, 114. The settlers were identified as “French and Canadian inhabitants, and other settlers of the Kaskaskies, St. Vincents, and the neighboring villages.”
C
HAPTER
9
T
HE
L
URE OF THE
W
EST
: S
LAVERY
P
ROTECTED IN THE
T
ERRITORIES