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A SLAVEHOLDERS' UNION
SLAVERY, POLITICS, AND THE CONSTITUTION IN THE EARLY AMERICAN REPUBLIC
By George William Van Cleve
THE UNIVERSITY OF CHICAGO PRESS
Copyright © 2010 The University of Chicago
All right reserved.
ISBN: 978-0-226-84668-2
Chapter One
FROM EMPIRE TO CONFEDERATION
During the years from 1770 to 1780, as Great Britain's control over its mainland American colonies declined and then collapsed, the wealthy and politically influential imperial institution of slavery became the subject of unprecedented controversy. The decade's disruptions had conflicting consequences for slavery as Americans used their new political freedom on that issue in clashing ways. But American slavery emerged from the Revolution stronger as a political institution than it had been within the British Empire just prior to the Revolution. This chapter explores how and why this occurred. It opens with a discussion of British imperial support for slavery and its character as an institution in the mainland American colonies shortly before the Revolution. Next, it analyzes a series of challenges to slavery in the years before the Revolution. Finally, it considers how the Revolution affected slavery and how slaveholders responded to its stresses, particularly their role in shaping the Articles of Confederation.
A major challenge to imperial slavery arose from a court attack on its legality in England, the closely watched 1772 case of Somerset v. Stewart. Though it was technically a dispute over slavery in England, the decision had political effects far broader than its precise legal holding. Lord Mansfield, the most prominent jurist in the British Empire, used his decision in Somerset both to announce a novel conception of slavery's legal character threatening to slaveholders and to challenge its morality. As an unintended consequence, it brought slavery's legality under sharp attack in some mainland colonies. It contributed to political assaults on slavery, and added to the chronic problem of slave flight. Slaveholders vigorously attacked Mansfield's decision; it often strengthened their preexisting view that arbitrary British government policies on slavery and taxation threatened their economic well- being and political freedom.
The obstacles encountered by mainland American slavery in the years prior to Independence also included widening slave freedom litigation, struggles over limiting slave imports, and new laws on slave manumission. Independence brought further threats. The Revolutionary War sharply increased the number of fugitive slaves, and the need to control slaves hampered American military efforts. State and Confederation controversies erupted over the use of slaves and free blacks in both the British and American armies. During the Revolutionary War alone, Vermont and Massachusetts banned slavery, Pennsylvania began abolition, Virginia liberalized its manumission laws, and Rhode Island banned the out-of-state sale of resident slaves.
Most historians agree that the Revolution was a turning point in slavery's history, but they have differed sharply on what it meant for slavery's evolution. The important strides toward abolition and slavery reform in the war and its aftermath led prominent Americans to think that progress toward abolition would continue across the United States, yet that did not happen. Historians have offered varying explanations for this post-revolutionary decline. Most of these explanations share the view that the Revolution was an impetus toward abolition, which was then defeated by powerful opposing counterforces such as white racism or economic self-interest.
One group of historians sees the Revolution as creating a strong impulse toward freedom for slaves. Ira Berlin and other historians view the Revolution's disruption and black agency as having transformed the basic conditions of life for both slaves and freedmen. Others such as Gary Nash instead conclude that the Revolution either crystallized or was strongly influenced by white racism, which ultimately defeated its antislavery thrust.
William Freehling thinks that the Revolution had equivocal implications for slavery because many Founders believed that Revolution principles of freedom and equality necessarily entailed an end to slavery, but were "conditional terminators," willing to end it only on conditions such as mandatory colonization of freed blacks that made abolition very difficult or impossible. The result, Freehling concludes, was that the Founders took important steps toward abolition while nearly simultaneously creating "bulwarks against antislavery."
This chapter takes a different approach to assessing the Revolution's impact on slavery. It begins by considering slavery's ability to resist change, that is, its staying power as an institution. It asks what benefits for slavery and disruptions to slavery the Revolution actually created. And it closely examines how slaveowners and slave states responded to these pressures when they faced antislavery activism before the Revolution and participated in framing the Confederation government.
Historians increasingly recognize that slavery emerged from the Revolution stronger as a political institution than it had been within the British Empire just prior to the Revolution. But, contrary to the view of David Brion Davis and other leading scholars, the evidence reviewed here suggests that this result was not paradoxical. The Revolution led to the creation of an American government that was far less capable of controlling slavery than the British Empire had been. It shifted the political balance of power in the new government in a direction strongly favorable to slaveholders. Revolutionary natural rights and egalitarian ideology had limited power to undercut slavery in the face of its powerful influence and of countervailing principles of thought about natural rights and limited government. The disruptive effects of slave flight and slavery's interference with American military operations during the Revolutionary War have been overstated.
As a result, in the crucible of the Revolution, slave state representatives obtained substantial protection for slavery from the new American government. The exceptionally decentralized federalism of the Articles of Confederation, ardently advocated by slave state representatives, meant that the continental government would have no legal power either to regulate or abolish slavery in the states or, as a practical matter, to control the slave trade or slave imports. And new evidence suggests that the Confederation also agreed in the Articles to protect slaveowners against state interference with their control over the interstate movement of slaves, including slave imports and the recapture of fugitives. Slave property was exempted from the Confederation's state taxation-quota calculations and excluded from its state military quotas. As a consequence of having met slave state demands, the Confederation was capable only of "stalemate government." Imperial collapse and political realignment in a decentralized polity in the midst of war had led Americans to take the first significant steps toward a slaveholders' union that preserved and strengthened slavery.
AMERICAN SLAVERY IN THE BRITISH EMPIRE CIRCA 1770
The institution of slavery had a prominent place in the economic and political affairs of the British Empire and its mainland American colonies just prior to the American Revolution. A major reason for American slavery's strength was its legacy of British imperial support. Slavery was given powerful protection by British and colonial law and policy and was directly linked to other important colonial institutions of social control.
In 1770, the major slaveholding colonies of the British Empire, or "plantation America," accounted for 25 percent of the total private physical wealth of the empire, even though they contained only about 12 percent of its total population. Slavery was the "principal means of wealth creation in plantation America" on the eve of the Revolution. Crown policy, particularly in the eighteenth century, was designed to maximize British investment in colonial slave plantation agriculture, which most contemporaries believed necessitated protection for the slave trade and for slavery as well.
Britain had legalized and subsidized the slave trade beginning in the mid-seventeenth century. By 1770, it had firmly supported its imperial slave trade for more than one hundred years. Britain dominated the eighteenth-century transatlantic slave trade, and its traders made thousands of voyages across the Atlantic during the century. Its participation in the trade maintained a reliable supply of relatively inexpensive colonial forced labor while also significantly enhancing British naval power. Most British supporters of the slave trade agreed with Malachy Postlethwayt that the trade was an "inexhaustible Fund of Wealth and Naval Power to this Nation." British support for the slave trade in turn led it to protect slavery, not just in the colonies but throughout its empire, both by providing military support and by regulating slavery policy.
During the seventeenth and eighteenth centuries, these goals led the Crown to protect slavery by disallowing several American colonial efforts to limit slave imports; by carefully regulating and controlling the classification of slaves as particular types of property in different colonies; and by approving brutal, repressive colonial slavery laws that minimized the cost of slaveholding. But Britain's intervention in the law and policy of slavery went beyond its direct supervision of colonial law. As to slavery, Britain departed from its general imperial policy of legal pluralism, or "de facto federalism" between metropolis and colonies, and instead sought to impose a degree of uniformity.
In the eighteenth century, the Crown sought to have English law treat slaves as uniform "imperial" property, since British investors and creditors thought that they needed predictable legal rules to support what they perceived as risky investments in the slave trade and colonial plantations. The Crown's two chief Law Officers, one of whom later rose to become Lord Chancellor of England, issued an opinion in 1729 that treated colonial slaves as property even when they were brought to England. Under that opinion, their owners could compel them to leave England and return to slavery. This effectively meant that slaves were "imperial" property, not just property under the law of individual colonies. The opinion, requested by slaveowner representatives, was widely published in the colonies.
The goal of enforcing uniformity also led to one of Parliament's very few substantive interventions in the law of slavery in a period of 250 years. In 1732, Parliament passed a "sweeping" statute that guaranteed uniform imperial treatment of slave property for debt- recovery purposes in England and its colonies, overriding all contrary colonial laws. Under this law, the Debt Recovery Act of 1732, "fiercely opposed" by Virginians, "Negroes" (slaves) in the colonies were classified as property for purposes of debtor- creditor relations. Creditors throughout the empire were given a broad range of remedies to protect their interests in such property. The law provided special evidence rules in such creditor actions. The act thus created a hybrid form of property valid throughout the empire. It effectively overruled a House of Lords decision that had respected colonial law in this area. It was the legislative analogue of the 1729 Law Officers' (or Yorke-Talbot) Opinion's conclusion that slave property had a uniform "imperial" status throughout the empire. The evidence suggests that colonial slave imports increased as a result.
Through these policies, Britain sought to protect and encourage slavery by imposing at least the degree of imperial uniformity needed to support a smoothly functioning slave property system throughout the empire, despite the existence of a variety of local differences in the law of slavery. This meant, among other things, that slaves in one part of the empire were regarded as property anywhere within it. And, as the 1729 Law Officers' Opinion shows, many thought that this included England itself.
In 1749, the Lord Chancellor of England, Lord Hardwicke (Sir Philip Yorke), decided that English law would recognize a trover claim for slaves—that is, a common-law claim to recover slaves (more precisely, damages for their withholding) premised on the idea that slaves were property. Hardwicke held that the law in all colonies must therefore recognize such claims as well. Hardwicke's decision reaffirmed the policy he had helped to establish in 1729 in the Law Officers' Opinion, that slave status did not change when slaves were brought to England. Hardwicke's position was shared by at least one leading contemporary legal treatise. Viner's Abridgement, a prominent treatise first published in 1746, stated that English law recognized trover claims for "Negroes" and treated as dissenting opinions on that issue early-eighteenth-century English court decisions holding that coming to England would end the slave status (if not necessarily the servitude) of blacks brought there.
Throughout the first two-thirds of the eighteenth century, the institution of slavery had the largely unquestioning support of most members of the British and colonial political, legal, religious, and social elites. Their adherence meant that during that part of the eighteenth century there were only minor changes to colonial slavery as a legal and social system while the American mainland slave population grew significantly and slavery's imperial economic and political influence grew with it. Prior to 1770, no major British or colonial court seriously questioned the fundamental legality of either colonial slavery or the slave trade. Political interventions before then by Parliament and the Privy Council regarding slavery and the slave trade virtually always favored slavery's expansion.
Due in part to its strong imperial support, slavery had become a central economic institution in the mainland American colonies by 1770. Slaves had become a major economic asset class, with a conservatively estimated collective market value of about £14 million (about $2.4 billion today). Slaves constituted nearly 20 percent of total private wealth in the thirteen colonies in 1774. Slave prices in the Americas (including the mainland colonies) had steadily increased throughout the eighteenth century, with exceptions caused primarily by war, an important indication of the growing demand for slave labor. The mainland American slave population nearly doubled between 1750 and 1770, a striking measure of slavery's growing economic significance there. By 1770, it had grown to about 470,000.
But to understand the politics of slavery, it is also quite important to appreciate that slaves (and related wealth) were very asymmetrically distributed throughout the American colonies. By 1770, the overwhelming majority of mainland American slaves were concentrated in five colonies: Virginia, North and South Carolina, Georgia, and Maryland. Slaves were an average of 41 percent of their total populations. Slaves constituted more than 30 percent of all physical wealth in the southern colonies, which meant that as a class of assets they were nearly as large a share of southern wealth as the estimated value of all land in those colonies.
The major slave-colony economies were built in substantial part around the use of slave labor, principally in agriculture, often in crops that were particularly labor-intensive and intended for export. Largely as a result of slave agriculture, exports from the South in 1770 were roughly 50 percent higher in value than exports from the New England and the mid-Atlantic colonies combined, although the populations of the two areas were equal. The slave colonies grew wealthy as a result. "At the time of the Revolution, total and per capita wealth levels of the slave colonies were far greater than those of their protofree [i.e., Northern] counterparts."
In striking contrast, in the eight Northern colonies at about the time of the Declaration of Independence, slaves constituted only about 4 percent of the population. In New Hampshire and Vermont combined in 1770, there were about seven hundred slaves, while in Massachusetts, slave population was less than 2 percent of total population. Certain Northern states, particularly Connecticut and Rhode Island, had comparatively more slaves; there, between 3 and 6 percent of the population was enslaved. In the New England colonies, slaves constituted less than 1 percent of total physical wealth.
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Excerpted from A SLAVEHOLDERS' UNION by George William Van Cleve Copyright © 2010 by The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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