From the Constitutional Convention of 1787 until the end of the Civil War, slavery undermined American federalism and challenged the very possibility of harmony within the federal union. The challenge to federalism came most directly when slaves were found in free states or free blacks were found in slave states. Slaves in free states could be considered in two categories: slaves in transit and fugitive slaves. The Constitutional Convention did not provide any direct protection for the right of masters to travel with their slaves in free states, and thus issues of slave transit were left entirely to state comity. By the end of the antebellum period, comity had more or less collapsed on this issue, as most northern states refused to allow masters the right to pass through their territory with slaves in transit, and most southern states refused to allow northern free blacks to enter their jurisdictions. Nor would southern states recognize the new status as free people that slaves might have acquired by visiting the North. This issue was constitutionally and legally significant, even though by the 1850’s it involved relatively few slaves or free blacks. Few masters took their slaves north, and few northern blacks ventured south. Nevertheless, at the federal level the Dred Scott v. Sandford (1857) case made the issue central to the crisis of the Union. Similarly, a case from New York, Lemmon v. the People (1860), led to an enormous controversy between New York and Virginia over the right of masters to travel through free states with their slaves. Had the Civil War not started when it did, this case would likely have brought the issues of slavery, comity, and federalism directly before the U.S. Supreme Court.
Controversies over fugitive slaves drew much greater attention from the founding until the end of slavery. In the summer of 1787, the issue arose in both the Articles of Confederation Congress and the Constitutional Convention. In the Northwest Ordinance (1787), the Congress provided,
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 labour 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 labour or service as aforesaid.
This was the first fugitive slave provision in federal law. It had very little jurisprudential impact, because the Articles were soon superseded by the Constitution and the Fugitive Slave Clause of Article IV, Section 2, Paragraph 3, of the Constitution superseded the clause in the Northwest Ordinance. Nevertheless, the clause in the Ordinance of 1787 established two principles of federalism: first, that the national government had some responsibility to protect the slave property of masters; and second, that free states should not be allowed to terminate the master-slave relationship if a slave escaped into a state where slavery was illegal. These principles were in direct conflict with the common law at the time of the Revolution, which held that slaves became free the moment they entered free jurisdictions, even if they did so by running away from their masters.
Near the end of the Constitutional Convention, Pierce Butler of South Carolina proposed what became the Fugitive Slave Clause. There was virtually no debate over the clause or how it was to be implemented, and the next day, without any recorded vote, the Convention adopted the clause. In its final version it provided,
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.
In Prigg v. Pennsylvania (1842), Justice Joseph Story would later assert that this clause was essential to the creation of the Constitution. The historical record suggests otherwise. Rather, it was a last-minute addition to the Constitution that Northerners seemed to lack the energy to analyze or oppose. Thus, the demands of the South for protection of their special property carried the day, setting the stage for constant conflicts over federalism.
In 1793, Congress passed a statute to regulate the return of both fugitives from justice and fugitive slaves. The fugitive slave provision of the statute generated little controversy at the time, although given the wording of the constitutional clause and its location in Article IV, Section 2, of the Constitution, there was some doubt as to whether Congress had the power to pass this legislation. In Jack v. Martin (1835), New York’s highest court held that the federal law was unconstitutional because Congress lacked the power to regulate the return of fugitive slaves. In the same case, the New York court remanded the fugitive slave, Jack, to his owner on the grounds that New York had a constitutional obligation to enforce the clause in the Constitution.
In the 1820’s a number of states passed “personal liberty laws” that were designed to prevent the kidnapping of free blacks or the removal of them under the 1793 law. These laws provided greater procedural protections for alleged fugitive slaves. In Prigg v. Pennsylvania (1842), Justice Story, speaking for an 8–1 majority on the Supreme Court, held that all such laws were unconstitutional because they interfered with the absolute right of a master to recover a fugitive slave. The decision callously ignored the rights of free blacks, including at least one and possibly two free black children who had been illegally seized by Edward Prigg and taken from Pennsylvania to Maryland. In a nod toward federalism, Justice Story did say that the states were free to prohibit their officials from taking part in fugitive slave cases, although he emphatically declared that such a result would have violated the spirit of the Constitution. In the next two decades, a number of states did exactly that. In the Fugitive Slave Law of 1850, Congress responded to growing northern noncooperation by providing an elaborate system of federal enforcement of the constitutional provision. The law provided for the appointment of federal commissioners in every county to oversee the return of fugitive slaves and allowed these commissioners to call on federal marshals, the army, and “all good citizens” to enforce their rulings.
The 1850 law in effect negated any notion of federalism in the enforcement of the Constitution’s Fugitive Slave Clause. Congress preempted the states and denied them any role in the implementation of the clause. This was the first time in the nation’s history that the national government had a law enforcement role and presence at the local level. The results were decidedly mixed. Between 1850 and 1861, federal authorities returned about 370 slaves to their masters, but it is estimated that more than 10,000 slaves escaped to the North in that period and another 10,000 or so probably were already living in the North. At the same time, violent resistance to the law led to spectacular rescues in Boston, Massachusetts; Syracuse, New York; Wellington, Ohio; and Milwaukee, Wisconsin, while in Christiana, Pennsylvania, fugitive slaves fought a gun battle with a federal marshal and a slave catcher before killing the claimant and escaping. In a number of places, local officials indicted slave catchers, masters claiming fugitives, or even federal marshals. The Wisconsin Supreme Court declared the 1850 law unconstitutional, although the U.S. Supreme Court overturned this in Ableman v. Booth (1859). Opposition to the return of fugitive slaves led many northern politicians, including Governors William H. Seward of New York and Salmon P. Chase of Ohio, to take a strong states’ rights position in their relationship to the federal government. Southerners, meanwhile, demanded a more activist federal government to protect their interests. This led to the ironic decision in Kentucky v. Dennison (1861). Two Ohio governors, Chase and William Dennison, refused to remand to Kentucky authorities a free black accused of “stealing” a slave, who he had helped escape to Ohio. A unanimous Supreme Court upheld the states’ rights arguments of Governor Dennison, not because Chief Justice Roger Brooke Taney had any sympathy with the free black or the Ohio governors, but because to do otherwise would have given the Lincoln administration the legal power to coerce state governors to support the Constitution. By this time, 7 states had left the Union. Most of the seceding states cited the failure of the North to support the return of fugitive slaves as a reason for leaving the Union. Thus, in the end this provision designed to secure interstate cooperation instead undermined national harmony and federalism.
Stanley Campbell, The Slave Catchers (Chapel Hill: University of North Carolina Press, 1968); Paul Finkelman, An Imperfect Union: Slavery, Comity, and Federalism (Chapel Hill: University of North Carolina Press, 1981); Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2nd ed. (Armonk, NY: M. E. Sharpe, 2001); Paul Finkelman, “Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story’s Judicial Nationalism,” Supreme Court Review 1994 (1995): 247–94; and Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780–1861 (Baltimore: Johns Hopkins University Press, 1974).