by James Oakes
The weakness of antislavery constitutionalism was exposed in 1820 during the contentious congressional debates over the admission of Missouri as a slave state. Rufus King and a small coterie of northern congressmen pushed the federal consensus toward an antislavery conclusion, claiming that because slavery was strictly a state institution, it followed that property in slaves was a state and not a federal right.17 If slave ownership had been constitutionally protected as a right of property, they argued, the federal government would have had no authority to close down the slave trade and ban slavery from the territories. “[I]s the power of holding slaves a federal right?” Congressman John W. Taylor of New York asked. His answer was a resounding no. How could it be? The laws of New Hampshire and Georgia treat slavery in “diametrically opposite” ways, Taylor reasoned, and by extension federal law did not automatically recognize slavery the way the southern states did. Federal law was based solely on the Constitution, the preamble of which embodied the antislavery principles of fundamental human equality spelled out in the Declaration of Independence. For Taylor this meant there was no such thing as a federal, or constitutional, right of property in slaves. In 1820, however, such arguments were too radical even for northern congressmen who professed to hate slavery. Southern congressmen rallied in unison around the inviolable rights of property, protected by the Constitution, and in the face of those arguments most northern legislators backed down. Two decades later the reasoning that shocked Taylor’s contemporaries was rapidly becoming commonplace thanks to a revived antislavery movement that was grappling with the issue of southern slaves who claimed freedom in northern states.18
A crucial turning point came in 1836 when Massachusetts abolitionists took up the case of a six-year-old slave girl named Med, whose Louisiana mistress took her to Boston during an extended visit with the mistress’s father, Thomas Aves. Antislavery lawyers, in this case Ellis Gray Loring, sued Aves on the grounds that Med was free under Massachusetts law—not because any statute declared her free, but on the Somerset principle that the state had adopted no “municipal” law that could legitimately deprive the girl of her freedom. Under the recognized principle of interstate comity, the court could have ruled that Massachusetts had an obligation to respect the Louisiana law that did, in fact, enslave Med. But instead Chief Justice Lemuel Shaw argued that the principles of comity “apply only to those commodities which are everywhere, and by all nations treated and deemed subject of property.” Slaves were emphatically not recognized as “property” everywhere, Shaw noted, and they were not so recognized in Massachusetts. Indeed, if slaves were to be recognized as a constitutionally protected form of property, it would be impossible for any state to exclude slavery from within its borders because under ordinary circumstances “the right of property follows the person.” Med was free, Shaw ruled, because she was not “property” under Massachusetts law. The case, Commonwealth v. Aves, established the single most important premise on which all antislavery politics would soon be built. There was no such thing as a constitutional right of property in slaves.19
SLAVERY LOCAL
Matilda Lawrence was owned by, and was quite possibly the daughter of, a Missouri planter named Larkin Lawrence. Her mother was a slave, half black, who died when Matilda was sixteen. She was raised in her owner’s house and succeeded her mother as the family’s housekeeper. Somewhere along the way Matilda Lawrence learned to read. But she lived an isolated existence, shunned by white society and yet forbidden to associate with blacks. In 1836 Matilda’s owner took her with him to spend a year in New York, where he told people she was his daughter. No one suspected. Intelligent, well mannered, and beautiful, Matilda was widely accepted as the daughter of a southern gentleman. She began to dread the thought of returning to Missouri, where she faced the prospect of being sold once her ailing owner died. She asked him for her freedom papers. Alarmed by Matilda’s request, Larkin Lawrence quickly packed up and set out on the return journey to Missouri. When they reached Cincinnati, Matilda asked once more for her freedom papers, and again her owner refused her request. She responded with promises of fidelity, but as soon as she got the chance Matilda left the hotel and made her way to the home of a black barber, who concealed the fugitive until her master left town a few days later.20
Once she was safe, Matilda took a job as a housekeeper in the home of James Gillespie Birney, himself a former slaveholder who had freed his slaves, moved to Ohio, and become active in the abolitionist movement. Birney’s wife had recently had a difficult childbirth, and she hired Matilda to help out around the house. It was unclear what Matilda Lawrence told the Birneys and how much they knew about her past. She had clearly been educated, and at least at the beginning she told the Birneys nothing about her real background other than the fact that she had been born in Missouri. “We thought her white,” Birney’s son later recalled.21
What none of them knew was that before Larkin Lawrence left Cincinnati, he had hired a well-known slave-catcher named John W. Riley to find Matilda and return her to slavery in Missouri. For months Riley and his men secretly kept watch on the Birney house, until, on March 10, 1837, they seized Matilda and took her into custody on a warrant issued by an Ohio state court. Birney himself was legally liable for harboring a runaway in violation of the Fugitive Slave Act of 1793. Birney immediately employed a young attorney named Salmon Chase to take the Matilda case. Chase had not been active in antislavery circles, but a year earlier he had successfully defended Birney in a suit against an anti-abolition mob that had attacked Birney’s radical newspaper, The Philanthropist. That experience had led Chase to think for the first time about the conflict between state and federal law regarding slavery. At Birney’s request Chase quickly applied for a writ of habeas corpus so that Matilda could have her day in court.22
As important as the case was for Matilda—she was, after all, fighting for her freedom—it quickly became a turning point in the history of antislavery politics. Birney had been sued for harboring a fugitive slave in his home, allegedly violating the owner’s property rights. But according to Chase it was “impossible, in Ohio, to commit the offense of harboring, or secreting a person being the property of another person,” for the simple reason “that the relation of owner and property, as existing between person and person, has, or can have, no existence in this state.” Ohio law did not recognize slaves as property but as persons held to service; slavery was a servile status, not a right of property. On this matter, Chase concluded, the laws of Ohio were “in full harmony with every provision of the constitution of the United States.” Chase was discerning Somerset within the Constitution, the text of which “contains no recognition whatever, of any right of property in man.” On the contrary, the Constitution left “this whole matter of property in human beings, precisely where the articles of confederation left it, with the states.” Slavery was local; it had no claims beyond the borders of the specific states that created it. “Wherever it exists at all, it exists only by virtue of positive law,” Chase explained. “The right to hold a man as a slave is a naked legal right. It is a right which, in its own nature, can have no existence beyond the territorial limits of the state which sanctions it, except in other states whose positive law recognizes and protects it.”23
Chase’s reasoning did not save Matilda Lawrence. It is hard to imagine a state court in the 1830s declaring the fugitive slave law of 1793 unconstitutional. There were arguments Chase might have made that were more likely to have won Lawrence her freedom, but with only one day to prepare, he had come into court armed only with propositions designed to clear the constitutional ground on which to build a national antislavery politics. Not surprisingly, the court ruled quickly in favor of the slave owner. In short order Matilda Lawrence was put on a boat bound for St. Louis, where she was most likely sold back into slavery, her ultimate fate unknown.24
Chase was not the only antislavery activist arguing that the Constitution protected slavery in only the most limited ways. The year after Chas
e argued the Matilda case before the Ohio court, a brilliant abolitionist named Theodore Dwight Weld extended the reasoning in an influential pamphlet titled The Power of Congress over the District of Columbia. On the face of it Weld was making a relatively narrow plea for congressional abolition of slavery in the nation’s capital. In fact he was laying down a broad set of principles that implied extensive federal power to regulate slavery. Weld began by making a sharp distinction between state laws that created slavery within their own borders, and the Constitution, which was based on the antislavery principles of universal law, natural law, and common law. The Founders hated slavery, Weld argued, and assumed that over time “the moral sense of the nation,” acting through legislatures, schools, and abolition societies, would create “a power of opinion that would abolish the system throughout the nation.” The men who wrote the Constitution expressed this moral conviction by recognizing slaves only as “persons,” never as “property.”25
Weld’s essay moved from the specific to the general, making ever larger claims as it proceeded. He began with the plausible assertion that in vesting Congress with sovereignty over Washington, D.C., the Constitution necessarily granted the legislative body the power to abolish slavery in the nation’s capital. Weld then went on to argue that the Constitution did not recognize a right of property in slaves anywhere. Although the right of property was a fundamental principle of universal law, “property in slaves is, by general consent, an exception.” The Constitution reflected the familiar precept that the rights of property originate in self-ownership. By the consent of the entire civilized world “slaves are not ‘property,’ but self-proprietors.” To own a slave as property was not a natural but a merely legal right, created “only by positive legislative acts, forcibly setting aside the law of nature, the common law, and the principles of universal justice and right between man and man.” Beyond the limits of such states, wherever the Constitution was sovereign, the right of self-ownership prevailed. By Weld’s reasoning, slavery itself was an assault on property rights, a form of theft, in which the individual’s inalienable claim of ownership to his or her self was forcibly violated. Abolition, then, was not the denial but the restoration of property rights. “Instead of taking ‘private property,’ Congress, by abolishing slavery, would say ‘private property shall not be taken; and those who have been robbed of it already, shall be kept out of it no longer; and since every man’s right to his own body is paramount, he shall be protected in it.’ ” This was bourgeois radicalism preparing the ground for bourgeois revolution.26
By 1838 radical opponents of slavery were routinely dismissing the idea of a constitutional right of property in slaves. New York’s William Leggett was typical. The Constitution, he declared, “nowhere gives any countenance to the idea that slaves are considered property in the meaning of the term as used in the fifth article of the amendments.” Ohio’s Thomas Morris affirmed the point made by Weld—that slavery itself was a violation of the “property” rights that all human beings have in themselves. “To free a slave,” Morris argued, is to take what had originally been stolen—property in one’s self—“and bestow it upon its rightful owner.”27
Opponents of slavery were gratified by the publication in 1840 of James Madison’s notes from the Constitutional Convention, which they believed supported their antislavery constitutionalism. They pointed to a crucial exchange at the Philadelphia convention in which Roger Sherman objected to a proposed tax on slave imports “because it implied that they were property.” When other delegates pointed out that the tax was designed to discourage the importation of slaves, Sherman said he would forgo the revenue rather than accede to wording that so much as hinted at the legitimacy of human property. James Madison agreed. He thought it “wrong to admit in the Constitution the idea that there could be property in men.” A tax on slave imports could not be justified, he said, because “slaves are not like merchandise, consumed, & c.” This exchange quickly became a staple of every extended argument against slavery as a constitutional right of property. Perhaps with Madison’s Notes in mind, former president and now congressman John Quincy Adams argued before the U.S. Supreme Court on February 24, 1841, that “the Constitution of the United States recognizes the slaves, held within some of the States of the Union, only in their capacity of persons—persons held to labor or service in a State under the laws thereof—persons constituting elements of representation in the popular branch of the National Legislature—persons, the migration or importation of whom should not be prohibited by Congress prior to the year 1808. The Constitution no where recognizes them as property. The words slave and slavery are studiously excluded from the Constitution. Circumlocutions are the fig-leaves under which these parts of the body politic are decently concealed. Slaves, therefore, in the Constitution of the United States are recognized only as persons, enjoying rights and held to the performance of duties.”28
A few weeks later, while Adams was there in the courtroom, one of the justices, John McLean, practically quoted the former president verbatim in a controversial concurring opinion in the case of Groves v. Slaughter. The high court had been asked to decide whether a state that restricted the importation of slaves (in this case Mississippi) violated the commerce clause of the Constitution, which granted Congress the power to regulate interstate trade. In a seemingly straightforward decision the court ruled that Congress had no power to interfere with slavery in the states. McLean voted with the majority, but his concurring opinion was anything but straightforward. He rested his decision on the fact that the commerce clause gave Congress the power to regulate property, whereas the “Constitution treats slaves as persons.” States may treat slaves “as merchandise,” McLean wrote, but “that cannot divest them of the leading and controlling quality of persons, by which they are designated in the Constitution.” Slaves were property only where state law made them so; where the Constitution was sovereign, slaves were persons. “The character of property is given them by local law . . . , but the Constitution acts upon slaves as persons, and not as property.” McLean concluded that federal authorities could not interfere with the interstate slave trade because the commerce clause gave Congress the power to regulate the flow of “merchandise,” not “persons,” across state lines.29
At the time McLean issued his opinion, abolitionists were petitioning Congress to ban the interstate slave trade, but the court’s ruling in Groves made that impossible. Yet antislavery radicals were thrilled by the decision because McLean’s reasoning represented a potentially much larger victory. The decision itself “renders it no longer advisable to petition Congress to abolish the inter-state slave trade,” an abolitionist newspaper explained. “At the same time,” the editors added, “the grounds for the decision will show that the cause of emancipation has gained much more than it has lost.—Let the principle that ‘the constitution regards slaves only as persons, and not as property,’ be fully carried out in all departments of the Federal Government, with the other principle, that slavery is the mere creature of local law, and can have no force beyond the boundaries of the state that creates it; and the various complicated entanglements in which the free states have felt themselves bound to its support, will entirely disappear.”30 Groves was a tactical loss but a strategic victory for antislavery constitutionalism. From the pen of a sitting justice on the U.S. Supreme Court came the unambiguous assertion that the Constitution recognized slaves only as persons and not as property. Radical antislavery doctrine was migrating into the mainstream.
William H. Seward’s career reflected that same migration. As governor of New York in the early 1840s Seward had declared that under no constitution or body of laws was it possible for any human being to “be converted into chattel or a thing in which another being like himself can have property.” By 1850, now a senator from New York, Seward invoked the same argument on the floor of Congress in response to southern congressmen who claimed that the “Constitution recognizes property in slaves.” It wasn’t true, Seward
declared. “I deny that the Constitution recognizes property in man.” In the few cases where the document recognizes slaves, it does so “not as slaves, much less as chattels, but as persons.” If the Founders had recognized slaves as property, Seward added, the Constitution itself would be “repugnant to the law of nature and nations.” Seward thereby linked the law of nations to the law of nature, which was “repugnant” to slavery—and he was not the only politician saying such things. “Slavery is admitted, on all hands, to be contrary to natural right,” Chase declared. And since the Constitution was a natural-law document, slavery must therefore be incompatible with constitutional law. By the 1850s mainstream antislavery politicians were making similar claims. “What natural right requires Kansas and Nebraska to be opened to Slavery?” Abraham Lincoln asked in 1854. “Is not slavery universally granted to be, in the abstract, a gross outrage upon the law of nature?”31
For decades opponents of slavery had been paralyzed by the fact that, like it or not, the Constitution protected slavery as a fundamental right of property. This made it all but impossible to develop a national antislavery politics. But in denying the existence of a right of property in slaves, and by locating the law of nations—and with the natural-law rejection of slavery—within the nation’s founding charter, the opponents of slavery opened the constitutional door to much more aggressive federal attacks on slavery. They could repudiate “gradualism”—the vague hope that someday, somehow, slavery would disappear—and instead devise federal policies, to be implemented immediately, that would bring about the ultimate extinction of slavery. They fully conceded that the federal government could not abolish slavery in the states where it existed, but they found ingenious ways to work around that restriction by making “freedom” the national policy of the United States.