Probably most members of the Convention were at least grudgingly satisfied with the compromise, but two delegates from Virginia felt nothing short of outrage over the deal. George Mason and Edmund Randolph believed themselves to be on the losing side from both flanks of the agreement. Not only had both men wanted an immediate end to the slave trade, but they also believed that a national power to pass navigation acts by a simple majority might be ruinous to the Southern economy. Mason pointed out that, even with the three-fifths clause: “The Southern States are the minority in both Houses” of Congress. Objecting to the ease with which commercial regulations could be passed if the two-thirds requirement were struck out, he asked if the delegates expected the South to “deliver themselves bound hand and foot to the Eastern States.” Mason and Randolph became disillusioned with the Constitution from this moment forward, and Mason’s words would prove prophetic.
In the immediate wake of the bargain, however, the general feeling of relief among the Convention delegates led to further compromises, including the fugitive slave clause. Even before the deal had been finalized, the delegates from South Carolina had announced their intentions in this regard. During a consideration of the clause guaranteeing the rendition of fugitives from justice, Charles Pinckney and Pierce Butler “moved to require ‘fugitive slaves and servants to be delivered up like criminals.’” The immediate response from the states northward was that no state should be required to pay for the capture and return of other states’ slaves and servants. Butler’s proposal made clear that escaped slaves and servants, if they should flee to other states, would “not be discharged from such service or labor” by the laws subsisting in any other state; instead, the escapee would “be delivered up to the person justly claiming their service or labor.” No one opposed Butler’s motion and it passed with unanimous consent.
There was so little debate preceding the passage of the fugitive slave clause that it is impossible to infer with any certainty what was on the Framers’ minds when they voted to adopt it. At the time, the comity which then existed between the states meant that most slaves were already returned to their masters without incident, though the Southern States had a perpetual fear that Northern States might one day assert their common law right to free slaves that sought refuge within their borders. It was also the case that most states, whether North or South, did not relish the prospect of welcoming a large population of free African Americans into their midst (regardless of how they had become free).
“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.”
The succinct debates that took place over the fugitive slave clause had yielded no more than a change in wording. In the first place, its passive voice makes it unclear if the states were responsible for anything more than non-interference in the recapture of fugitive slaves. In the second place, the Framers were very careful to word the clause so that the recognition of the property in slaves (much less the legitimacy of such a property) would not be explicitly recognized in the constitutional text. Butler’s original proposition had required that slaves must be returned to the persons who were “justly claiming their service or labor.” In the Committee of Style, any reference to the “just” claims of the slaveowner was dropped, and the clause referred instead to the slave or servant who was “legally held to service or labour.” Finally, just two days before the Convention was adjourned, “the term ‘legally’ was struck out; and the words ‘under the laws thereof,’ inserted … in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view.” This change of wording cleared up two potential ambiguities (though it left behind others). It was now clear that the Constitution did not recognize the moral “lawfulness” of slavery, and it was clear that it was not under the Constitution that men were recognized as property; rather, it was under the laws of the states that men were held to service or labor. The distinction may be rather subtle or abstruse, but at least some of the Framers had considered it imperative that the Constitution give no explicit sanction to the institution of slavery. Still, the fugitive slave clause is arguably the most shameful clause in the Constitution, because in practice it would unavoidably implicate the new federal government in the protection of slave property. When put in practice, starting with federal legislation in 1793, it would also be a moral, political, and legal nightmare for the young republic.
The international slave trade would be permitted for only twenty more years, and those twenty years would be no worse than the conditions existing under the Articles of Confederation. As Madison pointed out during the ratifying debates, those states which had already forbidden the slave trade could continue to forbid it under the new Constitution. And the federal government would now be empowered to outlaw the slave trade throughout the United States in twenty years, a power that they had never had before. Even the 20-year allowance of the slave trade was granted only to “the states now existing,” which meant that the new Congress could forbid the slave trade into any territories or any states that were created before 1808. Congress did in fact act on every power they were granted: they prohibited the international slave trade into the Mississippi Territory in 1798 and into the Louisiana Territory in 1804, and they outlawed the trade throughout the country at the earliest possible moment, going into effect on January 1, 1808.
Nevertheless, the 20-year compromise has been seen as an objectionable part of the Constitution since it was formed. And it is possible that the Framers might have been able to strike a better bargain if more members had resisted the Deep South. But they could not have hoped to accomplish much better, since those delegates had made it plain that an immediate end to the slave trade was not an option. Therefore, for those opponents who witnessed its formation—such as George Mason and Luther Martin—the most noxious part of the compromise was the quid pro quo demanded by the New England states. But this venal aspect of the bargain should not be allowed to totally obscure what was admirable in the debates. There were a few delegates who stood up to the intransigent members from South Carolina and Georgia and insisted that the international slave trade must finally come to an end. As General Pinckney acknowledged in the South Carolina legislature, the Deep South had been forced to yield on this question because of “the religious and political prejudices” of some of the other members. It is to the credit of men such as Mason, King, Dickinson, Langdon, and Randolph that the Constitution held out any promise that there would be an end to the further imports of slaves.