by James Oakes
But beginning in the 1830s antislavery activists invoked the same consensus as a means of restricting slavery, of confining its reach. Limiting slavery’s scope was the point Supreme Court Justice John McLean was making in 1841 when he wrote in his explosive concurring opinion in Groves v. Slaughter that “[t]he power over Slavery belongs to the States respectively. It is local in its character, and in its effects.” The laws of slavery, McLean was saying, had no “effects” beyond the borders of the states that enacted them. McLean was undoubtedly influenced by his son-in-law, Salmon P. Chase, the prominent antislavery lawyer and later the most radical member of Lincoln’s cabinet. In the late 1830s Chase began building an argument for restricting the constitutional reach of slavery to the states where it existed while enhancing the Constitution’s power to spread freedom everywhere else. Slavery, Chase explained, “can have no existence beyond the territorial limits of the state which sanctions it.” Other radicals made the same claim. Slavery was “a local institution, peculiar to the States and under the guardianship of State Rights,” argued Charles Sumner, the closest thing to an abolitionist in the U.S. Senate. “It is impossible,” Sumner added, “without violence, at once to the spirit and to the letter of the Constitution, to attribute to Congress any power to legislate, either for its abolition in the States or its support anywhere.” Most antislavery radicals argued that the Constitution recognized slavery as a state institution, but only as a state institution.6
By 1861 Lincoln’s inaugural promise not to interfere with slavery in the states was pro forma within the antislavery movement. In July of that year, for example, New Hampshire Senator John P. Hale, a fiery veteran of the antislavery crusade, declared that “from the earliest organization of anti-slavery societies in the eastern States, even of the most radical of them, as long ago as 1835, when they first started, twenty-six years ago, some of their first resolutions were to declare, in the strongest language they could command, their indisposition, and their want of power to interfere with slavery in the States. They disclaimed it, and have constantly done so from the first, even the most radical Abolitionists.” This was a slight exaggeration. One small group of abolitionists—notably Alvan Stewart, Lysander Spooner, William Goodell, Gerrit Smith, and Frederick Douglass—theorized that the Constitution was an antislavery document that empowered the federal government to abolish slavery everywhere. Their interpretation of the Constitution, however, “has been made appreciable but to few minds,” Douglass admitted.7 When abolitionists pressed for national policies hostile to slavery, they almost always assumed that the federal government had no power to abolish slavery in the states where it existed. That was Lincoln’s assumption as well. In promising to leave slavery alone in the states, he was saying something almost everybody believed, including most abolitionists.8
This raises the crucial question: If even slavery’s opponents agreed that the Constitution prevented the federal government from “interfering” with slavery in the states, how then did abolitionists expect to get slavery abolished? We know a great deal about abolitionist ideals, the arguments they launched against slavery, the secular and religious principles that inspired them, the organizations they formed, the literature they circulated, the ties that bound them to a wider world of national and transnational reform movements, and the personal and sectarian squabbles that erupted among them. But we know very little about the practical policies that abolitionists formulated for destroying slavery. We know even less about how abolitionists hoped to overcome the great problem posed by the U.S. Constitution even though it was in many ways the most important problem the antislavery movement faced. What, they asked, could the federal government do to undermine slavery in light of the constitutional prohibition against federal interference with slavery in the states? How was it possible to abolish slavery when, by common consent, the Constitution protected it in the states where it already existed?
A viable antislavery politics was possible, most abolitionists concluded, because the Constitution did not speak with a single voice on the subject of slavery. It was not the unambiguously antislavery Constitution that Gerrit Smith and Frederick Douglass believed it to be, but neither was it the hopeless proslavery compact denounced by William Lloyd Garrison and Wendell Phillips. Most abolitionists understood that there had been a conflict raging over slavery in late-eighteenth-century America and that the conflict itself was reflected within, not swept away by, the Constitution. For example, the framers did not merely refuse to allow the word slavery into the document, they went out of their way to refer to slaves as “persons held in service” rather than as “property in man”—a deliberate choice that reflected the influence of antislavery jurisprudence at the time, a choice that would, moreover, become one of the core precepts of all antislavery politics. Similarly, the framers acknowledged that slaveholders had a right to recapture their runaway slaves, but the Constitution did not grant the federal government the power to enforce the right of reception. Precisely who was responsible for the capture and return of fugitive slaves would eventually become a major point of contention between the North and the South. Invoking the federal consensus, abolitionists argued that because slavery was strictly a state institution, enforcement of the fugitive slave clause was strictly a state responsibility. This reading of the Constitution would condition the North’s response to slaves running for their freedom to Union lines during the Civil War. Most abolitionists acknowledged that there were proslavery elements in the Constitution that put very real limits on the scope of antislavery politics. But there were some things in the document that gave the opponents of slavery room for political maneuver.
Most important of all antislavery activists argued, the revolutionary generation had suffused the nation’s founding documents with the bias toward freedom intrinsic to the “law of nations.” One indication of the Founders’ sensitivity to the law of nations is the fact that the Declaration of Independence was framed as a claim to recognition in the world of nations. The Constitution itself had a curiously dual character: it was a charter that created a new government for a sovereign nation, and it was a “treaty” among the constituent states. With an eye toward establishing their new nation’s place in the “world of nations,” the delegates in Philadelphia expressly incorporated the law of nations into the document. They also understood that the law of nations was based on the broad principles of natural law. This could not help but invest the Constitution with an antislavery element, for as antislavery politicians would later insist, a long tradition in Western culture held that slavery was incompatible with natural law. Hence in the eyes of slavery’s opponents there were antislavery as well as proslavery features within the Constitution, and on its mixed message political abolitionists constructed a credible antislavery politics.9
By the time the Civil War broke out, the opponents of slavery had developed two distinct scenarios whereby the federal government could undermine slavery without actually violating the constitutional restriction on federal interference with slavery in the states. Under the first scenario the federal government would contain slavery within the southern states, steadily weakening it until the states eventually abolished slavery on their own. Under the second scenario the federal government would emancipate slaves in the process of suppressing a domestic insurrection. Until 1830 nobody had imagined destroying slavery by either of these means. By 1860 they were universally accepted within the Republican Party. But before that could happen, opponents of slavery had to overcome another constitutional obstacle: the natural right of property.
PROPERTY IN MAN
We call it “chattel slavery” because slaves were the legal property of their owners—human property to be sure, but property nonetheless. In the American South, slaves were personal property rather than real estate. “Moveables” is what Jefferson called them. This is what made slavery different from other forms of inequality such as patriarchy, serfdom, apprenticeship, and wage labor. Here the slaveholders were consistent. Their l
aws classified their slaves as property; they treated their slaves as property; and they defended slavery primarily as a right of property. It was no accident that the struggle over slavery so often came down to the right versus the wrong of “property in man.” Abolitionists never doubted that it was immoral for one human being to own another as property, but before they could begin to formulate a federal policy aimed at the destruction of slavery, they had to develop a constitutionally viable argument for restricting the rights of property.10
This was no easy task, for although abolitionists hated the very idea of human property, they generally respected the rights of property. How could abolitionists attack slavery without undermining property rights? The answer they came up with was a straightforward but controversial adaptation of the federal consensus: slaves were property under state statutes, but they were not “property” under the Constitution. Instead the Constitution recognized slavery only as a servile status—“persons held in service”—not as a right of property. The distinction between slaves as property under state law but as persons under the Constitution rested on several premises: that the Constitution was imbued with the principles of natural law; that “property in man” was a violation of natural law; and that slavery could therefore exist only within the borders of those states in which “positive law” overruled the natural-law principles of the Constitution. This was the American version of the “freedom principle,” with roots stretching deep into European history. It was imported into the colonies from England, where, on the eve of the American Revolution, Lord Mansfield ruled in the Somerset case that slavery was such a palpable violation of natural law that it required “positive” legislation creating slavery to overrule the presumption of freedom. English law recognized slavery as a servile status, not as a species of property.11 In the United States Somerset became a benchmark for all subsequent efforts to end slavery by political means. By its careful reference to slaves as “persons held in service,” abolitionists argued, the Constitution reflected the natural-law principle that condemned “property in man.” Thus slavery was presumptively illegal wherever the Constitution was sovereign—in the territories, for example, on the high seas, or in Washington, D.C. This was the constitutional logic behind the familiar antislavery precept that freedom was national whereas slavery was local. It meant that there was no such thing as a constitutional right of property in slaves.
The logic of Somerset opened a legal pathway for the abolition of slavery in the northern states in the late eighteenth century. Although the earliest opponents of slavery took great care not to trample on the property rights of masters, they nevertheless narrowed the scope of property rights in ways that made it possible to attack slavery at the margins. They were willing to close down the slave trade on the theory that making it impossible to import a slave was different from taking slave property from someone who already had it. By freeing the children of slaves at the moment of birth—on the principle that everyone was “born free”—they would close off yet another source of new slaves without depriving masters of the slaves they already owned. “It is alleged,” one New Jersey antislavery memorial read, “that to emancipate those now living” would violate the slaveholders’ rights of property. “But as respects those who may in future be born this does not apply.”12 Emancipating states often required the children of slaves to work for their masters for a specified number of years—a form of compensation for the cost of raising the children and for some of the prospective losses from their labor as adults—but those same states then freed slaves once the master’s claim of service had been duly acknowledged. Finally, the opponents of slavery would limit its expansion into new territories, once again reasoning that nobody’s property rights were actually violated in the process.
The prevailing sensitivity to the slaveholders’ rights of property meant that abolition before the Civil War was almost always gradual. Vermont was the first state to begin gradual abolition in its revolutionary constitution of 1777, which declared it illegal to hold any male in slavery “after he arrives to the age of twenty-one years; nor female, in like manner, after she arrives to the age of eighteen years.” Gradual-abolition laws were subsequently passed in Pennsylvania in 1780, Rhode Island and Connecticut in 1784, New York in 1799, and New Jersey in 1804. Although there were variations from state to state in each case, freedom was promised to the children of slaves once they had served an apprenticeship.13
Gradual emancipation had less to do with racial prejudice or the fear of free blacks than with the widespread concern for the rights of property. It was the opponents of abolition who most frequently resorted to racial arguments, warning that blacks were unsuited to freedom in any form. By contrast, advocates of abolition tended to justify their support for gradual approaches by reference to their abiding respect for property. Jacob Morris, a strong promoter of abolition in New York, explained that his support for gradual, compensated emancipation grew out of his “sacred regard for the property of the Citizens.” Slavery was “odious, and the practice of it in a free country much to be lamented,” an anonymous Federalist writer explained in 1792, “but as the laws of society have tolerated the practice, it is but reasonable, that the abolitions should be effected in such a way, as not to interfere with the regard that is due to private property.” By the late eighteenth century, slavery’s opponents were already in the grip of a confounding paradox: the thing they hated most about slavery—property rights in human beings—was the thing that most inhibited their opposition to it.14
But the opponents of slavery found in the logic of Somerset a means of surmounting the legal obstacle presented by “property in man.” Following Lord Mansfield’s logic, the abolition statutes of early America redefined bondage as a servile status closer to indentured servitude than chattel slavery. In this sense the first emancipation was somewhat more immediate than the term gradual abolition suggests. Slavery immediately ceased to be a lifelong heritable condition. And by restricting the “property” element of the master-slave relationship to a claim of service, the opponents of slavery removed a barrier to state regulation of slavery. State governments found it much easier to restrict the terms of service than to take away property. New York provides the clearest case. Its legislature prohibited the sale of any slave out of state a full decade before it passed the general emancipation statute in 1799. Then, too, the 1799 statute immediately propelled far more emancipation than it formally required: it prompted many New York masters to enter into indenture agreements with their adult slaves, promising freedom in return for several more years of loyal service. But that was only the beginning. Within a few years the legislature began altering the terms of the master-slave relationship in significant ways. It legalized slave marriages, thereby prohibiting the masters from breaking up slave families. It gave slaves the right to own property, allowing them to accumulate wealth on their own, independently of their owners. Towns and cities began to close down slave auction houses, making it hard for owners to sell slaves even within the state. Thereafter a master who sold a slave out of state or who broke up a slave family had to violate the law and risk punishment to do so. By 1810 thousands of New York slaves had already been emancipated, but just as important those still in bondage had been shifted from the legal category of personal property into an intermediate servile status, a status that afforded them property rights, legally secure marriages, and specified terms for the end of their services. To say that New York’s 1799 emancipation law “did not free a single slave” is to miss all that it did and to underestimate the achievement of those who struggled for its passage.15
And yet nothing about the “First Emancipation” implied that the federal government had any authority to abolish slavery in a state. Individual states could regulate slave property or redefine slavery as a servile status, effectively abolishing slavery either immediately or gradually. But the First Emancipation left undisturbed the prevailing assumption that slaves could be defined as property under state law and
that states alone could abolish slavery within their borders. To be sure, the new federal government was not completely paralyzed when it came to regulating slavery beyond the borders of the slave states themselves. The first Congress reenacted the Ordinance of 1787—known as the Northwest Ordinance—declaring that in the federal territories north of the Ohio River “[t]here shall be neither slavery nor involuntary servitude . . . otherwise than in punishment of crimes whereof the party shall have been duly convicted.” The Northwest Ordinance would go on to become a touchstone of antislavery politics, the statutory link between the abolitionists and the Founders, its very language eventually reproduced in the Thirteenth Amendment that would abolish slavery forever. In the short term the Northwest Ordinance, ambiguous and limited as it was, nevertheless established the principle that the federal government could regulate slavery in the territories. Opponents of slavery likewise moved quickly in 1807 to abolish the international slave trade at the earliest possible date. But northerners and southerners alike still insisted that slavery was strictly a state institution and the federal government had no power to regulate or interfere with it. The federal consensus was still understood as a restriction on the federal government rather than a restriction on slavery’s reach.16
