Introduction

The Fugitive Slave Clause of the Constitution was the outcome of discussions and negotiations between Northern and Southern delegates, occurring from mid-July until mid-September. There are seven important dates to bear in mind when considering its adoption. On each date, a decision was made and recorded in the documents excerpted below. We list these in chronological order, under their dates.
Here is a brief history: (1) In the conversations and documents of the American Founding, the Fugitive Slave Clause first appeared in the last article in the Northwest Ordinance. That ordinance was passed on July 14, 1787. The news of the Northwest Ordinance reached the Constitutional Convention at the time the delegates were passing the Connecticut Compromise on federal representation and Congressional powers. (2) On August 6, the Committee of Detail issued its Report. There was no mention of the fugitive slave clause, but Article XV addressed what became popularly known as the Extradition Clause. (3) During the discussion of this clause on August 28, the South Carolina delegation attempted, unsuccessfully, to include “fugitive slaves” in the “fugitive” provision of the extradition clause. So (4) on August 29 that delegation came up with a separate fugitive clause that was accepted and (5) placed right under the original extradition clause in the Committee of Style Report. (On September 8, the delegates appointed a Committee of Style “to revise the style of, and arrange, the articles which have been agreed to by the House.”) (6) On September 15, the delegates agreed to a change in the language of the Fugitive Slave Clause. (7) The Constitution was signed by 39 of the 55 delegates attending the Convention on September 17, 1787.

The language and contiguous location of the Extradition Clause and the Fugitive Slave Clause in the Constitution invite the reader to compare and contrast them.


Source: Gordon Lloyd ed., Debates in the Federal Convention of 1787 by James Madison, a Member (Ashland, Ohio: Ashbrook Center, 2014), 317, 448-449, 454, 521, 542, 561.


(1) North West Ordinance, July 14

ARTICLE VI

There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid.

(2) Committee of Detail Report, August 6

ARTICLE XV

Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.

(3) Madison’s Account of Debates in the  Constitutional Convention, August 28

Article XV being then taken up, the words, “high misdemeanor,” were struck out, and the words, “other crime,” inserted, in order to comprehend all proper cases; it being doubtful whether “high misdemeanor” had not a technical meaning too limited.

Mr. BUTLER[1] and Mr. PINCKNEY[2] moved to require “fugitive slaves and servants to be delivered up like criminals.”

Mr. WILSON.[3] This would oblige the Executive of the State to do it at the public expense.

Mr. SHERMAN[4] saw no more propriety in the public seizing and surrendering a slave or servant than a horse.

Mr. BUTLER withdrew his proposition, in order that some particular provision might be made, apart from this article.

Article 15, as amended, was then agreed to, nem. con.[5]

Adjourned.

(4) Madison’s Account of Debates in the Constitutional Convention, August 29

Mr. BUTLER moved to insert after Article 15, “If any person bound to service or labor in any of the United States, shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor,” — which was agreed to, nem. con.

(5) Committee of Style Report, September 12

Article IV. Sect. 2.

A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, and removed to the State having jurisdiction of the crime.

No person legally held to service or labor in one State, escaping into another, shall, in consequence of regulations subsisting therein, be discharged from such service or labor; but shall be delivered up, on claim of the party to whom such service or labor may be due.

(6) Madison’s Account of Debates in the Constitutional Convention, September 15

Article 4, Sect. 2, (the third paragraph,) the term “legally” was struck out; and the words “under the laws thereof,” inserted after the word “State,” 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.

(7) The Constitution, September 17

Article IV, Sect 2

Extradition Clause

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Fugitive Slave Clause

No Person held to Service or Labor 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 Labor, but shall be delivered up on Claim of the Party to whom such Service or Labor may be due.

Study Questions

A. What is the significance of the change in language from “justly” to “legally” to “under the laws thereof”? Why is the Fugitive Slave Clause located right under the Extradition Clause in the Constitution? Is there a significant difference between the language of the Fugitive Slave Clause and the Extradition Clause?

B. Do the fugitive slave clause and the Three-Fifths Clause contradict the claim in the Declaration of Independence that all men are created equal? How do the discussions of these provisions in the Constitutional Convention address that question? What do the inclusion of these clauses and the inclusion of the ban on the slave trade in the Slave Trade Clause tell us about the relationship between the Declaration and the Constitution?

Footnotes

  1. Pierce Butler of South Carolina
  2. Charles Pinckney of South Carolina
  3. James Wilson of Pennsylvania
  4. Roger Sherman of Connecticut
  5. an abbreviation of nemine contradicente, Latin for “no one dissenting”