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    George Washington freed his slaves, as did many others, but most did not
    ::
       Independent Media & Educational Projects -> America's Principles in Public Policy

    Slavery and the USA around the time of the nation's founding

    by Alexander Tsesis, professor at Loyola University School of Law

    excerpted from Prof. Tsesis' 2007 Arizona State Law Journal article titled "Undermining Inalienable Rights: From Dred Scott to the Rehnquist Court". 39 Ariz. St. L.J. 1179 (Winter 2007)

    Practical Failures of Principles

    Particularly disturbing is how many of the men who extolled liberty and even denounced the contradiction between slavery and revolutionary ideals were unreformed slave holders. n55 The universal rights that underlay liberty took a backseat to their material interests. At the age of twenty-five, when he delivered his first speech in the Virginia House of Burgesses, Richard Henry Lee advocated ending slave importation. n56 He drew attention to how importing slaves "has been, and will be attended with effects, dangerous [page 1187] both to our political and moral interests." n57 He seemed to condemn the institution of slavery, going so far as to say that persons imported into the colonies should be "considered as created in the image of God as well as ourselves, and equally entitled to liberty and freedom by the great law of nature." n58 He also supported the Northwest Ordinance, which included a clause against the spread of slavery into the Northwest Territory, which encompassed present-day Ohio, Indiana, Illinois, Michigan, and Wisconsin. n59 In the end, despite his sensibility, Lee did not change his behavior, and at one point in his life even tried to join with others to make money by selling slaves. n60 He died owning thirty-seven slaves, whom he did not free but instead left as property to his heirs. n61

    Some of the Upper South's opposition to the Importation Clause was driven not by antislavery sentiments but the desire to increase the value of domestic slaves. In opposing ratification of the Constitution, George Mason argued that slave importation was "infamous" and "detestable." n62 He lectured fellow Virginians that Great Britain's support for it "was one of the great causes of our separation." n63 Augmenting "slaves weakens the states; and such a trade is diabolical in itself, and disgraceful to mankind." n64 Mason's aversion to treating persons as chattel, regrettably, went no further than importation. He owned about 300 slaves himself and was upset that the Constitution did not secure "the property of the slaves we have already." n65 Connecticut delegate Oliver Ellsworth and other contemporaries, claimed Mason's opposition was based on his interest in maintaining high prices for domestically sold slaves, which the importation of Africans was likely to depress. n66

    Patrick Henry came face to face with his own hypocrisy after scrutinizing one of Quaker Anthony Benezet's abolitionist tracts:

    [page 1188]

    Is it not amazing, that at a time when the rights of Humanity are defined & understood with precision in a Country above all others fond of Liberty: that ... we find Men, professing a Religion the most humane, mild, meek, gentle & generous, adopting a Principle as repugnant to humanity ... . Would any one believe that I am Master of Slaves of my own purchase! I am drawn along by ye general Inconvenience of living without them; I will not, I cannot justify it... . I believe a time will come when an oppertunity [sic] will be offered to abolish this lamentable Evil. n67

    Little could Henry know that the "lamentable Evil" would only be abolished after a bloody civil war. Thomas Jefferson also realized the incongruity of slavery with the Age of Revolution. Jefferson, indeed, had some premonition about the national catastrophe that slavery could catalyze, believing that it was destroying the people's morals. n68

    With the passage of time, Jefferson grew increasingly indifferent about the plight of slaves. His changed attitude was indicative of the country's shift from liberal ideals. Writing during the heyday of American expectations, Jefferson had wanted to end the importation of slaves into the colonies and follow up with the "abolition of domestic slavery." n69 In 1776, the same year his draft Declaration of Independence proposed to condemn King George for the slave trade, n70 Jefferson's second and third drafts of the Virginia Constitution contained a provision that, "No person hereafter coming into this country shall be held in slavery under any pretext whatever." n71 Neither passed, but they appear to be indicative of how disdainful of slavery he had been as a young man. But Jefferson, like his fellow slaveholder George Mason, kept slaves during and after the Revolution, even though he admitted that "every master of slaves is born a petty tyrant." n72

    [page 1189] Opponents of the Constitution criticized this lack of integrity to principle. John Mein, a British Loyalist, pointed out the disingenuousness of Bostonians who grounded their struggle in the "immutable laws of nature," while they lived in a town where two thousand out of its fifteen thousand inhabitants were black slaves. n73 Samuel Johnson, the great English lexicographer and opponent of colonial independence, mocked the "drivers of Negroes" for their pretentious "yelps for liberty." n74

    With the passage of time, Jefferson became increasingly complacent with the institution of slavery. In an 1814 letter, Jefferson counseled Edward Coles, a soon-to-be antislavery governor of Illinois, against manumitting his slaves. n75 The degeneration from idealism to cold resignation, complicity, and participation typified a political arrangement willing to sacrifice the interests of slaves for creature comfort and domestic tranquility. Later, it would be a comparable pragmatism to the plight of individuals that moved Taney to degrade Dred Scott's claim to personal liberty below his master's prerogative to his property.

    After the Revolution, not everyone was as complacent as Jefferson, Henry, and Lee. The most famous framer who acted on the ideals of universal rights was former President George Washington who liberated his slaves by will. He directed that elderly freed persons be paid pensions, others be taught to read and write (even though Virginia laws prohibited educating blacks), and any slaves who remained on his estate be paid for their work. n76

    General William Whipple, who served the nation during the Revolution from Portsmouth, New Hampshire and was later a delegate to the [page 1190] Continental Congress, likewise acted on the logic of natural rights. His slave, Prince, had been in combat and was even an oarsman on George Washington's boat as it made its way through the icy Delaware River during a Christmas storm in 1776. n77 In 1777, Prince said to Whipple, "you are going to fight for your liberty, but I have none to fight for." These words cut Whipple to the quick, and he immediately freed him. n78 Other great personages of the day who provided slaves freedom by will were Senator John Randolph n79 and Robert Carter III. n80 Randolph deplored the institution of slavery, but even at the time of his death he had about 400 slaves. n81 Carter gradually manumitted about 500 slaves. n82 Some ordinary slave holders were also moved by the enlightened rhetoric of the Revolution. One study of Petersburg, Virginia found that between 1784 and 1806 many deeds of emancipation "speak of freedom as the natural right of all men and declare that no man has a right to enslave another." n83

    Those acts of manumission fit a pattern in the South after the Revolution. Increases in the free black population indicate that many Americans understood that the revolutionary battle cry for inalienable rights was incompatible with the despotism of slavery. The free black population nearly doubled between 1790 and 1800 in the Upper South from 30,158 to 56,855 and in the Lower South from 2,199 to 4,386, respectively. n84 This trend continued in the decade between 1800 and 1810, when the number of free blacks in the Upper South increased to 94,095 and in the Lower South to 14,180. n85 In many cases the slaves who were freed emerged without compensation and at the lowest level on the socioeconomic scale. Even the change in demography can only be viewed as a partial victory, given that the number of slaves did not diminish. In 1790, there were 517,763 slaves [page 1191] in Upper South and 136,358 in the Lower South. n86 Those figures rose in 1800 to 645,682 in the Upper South and 205,850 in the Lower South, n87 and in 1810 slaves there were 802,117 slaves in the Upper South and 301,583 in the Lower South. n88

    The discrepancy between increased manumission on the one hand and increased slave population on the other is partly attributable to the contrary forces of sincerity and self-interest. During this period, roughly from the time just before ratification of the Constitution and the end of slave importation, about 91,000 slaves were imported into North America. n89 The birthrate of slaves also played a role in increasing the total number of slaves despite the manumissions.

    By the beginning of the nineteenth century, the early revolutionary possibilities of equally protecting inalienable rights became an unrealized aspiration that was losing its momentum. Yet, the untainted sentiments to create a government by the people and for the people left an undeniable foundation for later federal protections of individual rights. One of Dred Scott's greatest failures was its unwillingness to reflect on the framers' belief in the universality of fundamental rights, giving greater interpretive weight to their compromises with slavery instead.

    Rights Based Antislavery

    Individual acts of manumission and kindness achieved only small scale civil reform. Free blacks fared little better than slaves; a former general of the Continental Army wrote that in Virginia "it is not only the slave who is beneath his master, it is the negro who is beneath the white man." n90 Northern states, unlike their Southern brethren, adopted policies to outlaw slavery; n91 meanwhile, the Constitution ensnared the entire nation in the net [page 1192] of slaveholding. Nevertheless, many antislavery efforts were overtly influenced by Revolutionary ideology.

    After the Revolution, a member of the prestigious American Philosophical Society, George Buchanan, pointed out the hypocrisy of citizens who had "thrown off the load of oppression ... becoming oppressors in their turn." n92 They had adopted a "fixed principle" of the Declaration of Independence about the equality of all to be free from oppression, but when Americans took the reins of government "they became apostates to their principles, and riveted the fetters of slavery upon the unfortunate Africans." n93 Benjamin Trumbull, writing in 1773, was irate that slavery continued to flourish despite all the talk of freedom. He berated the institution: "Is not this the case, when rulers are made wholly independent of the people, when strangers unconnected with them, and independent of them, are appointed to rule over them? Is not this calculated to deprive a people of liberty and justice; - to render life, property, and every dear enjoyment very precarious; and to reduce them to a state of slavery and misery, instead of making them free and happy? Is it not an infraction of the great and unchangeable laws of Nature, Reason, and Religion? - Incompatible with the essential rights of mankind?" n94

    New Jersey Quaker leader David Cooper showed the contradiction between principle and slavery by publishing doctrine in a left hand column and condemning practices on the right. For one, the Declaration made much of self-evident truths which must apply to all of humanity; but "the very people who make these pompous declarations are slave-holders." n95 Presciently anticipating Taney's Dred Scott opinion, racial differentials in law, Copper wrote, "... tell us, that these blessings were only meant to be the rights of whitemen [sic], not of all men: and would seem to verify the observation of an eminent writer; 'When men talk of liberty, they mean their own liberty, and seldom suffer their thoughts on that point to stray to their neighbours.'" n96

    [page 1193] He further juxtaposed a 1774 resolve of the Continental Congress of North Americans right to the "immutable laws of nature, are entitled to life, liberty and property" and the treatment of blacks, since they too could justly argue that they had never ceded their equal claim to the immutable rights to life, liberty, and property. n97 The point that blacks retained their human rights, irrespective of constitutional and statutory compromises on slavery, was lost on Taney.

    Many of the most famous Revolutionary leaders drew attention to the incongruity between American demands for freedom and their rationales for tyrannizing slaves. Hamilton, for instance, wrote that "no reason can be assigned why one man should exercise any power, or pre eminence [sic] over his fellow creatures more than another; unless they have voluntarily vested him with it." n98 Thomas Paine, exhibiting a knack for penetrating brevity in his first published article, entreated Americans to consider "with what consistency, or decency they complain so loudly of attempts to enslave them, while they hold so many hundred thousands in slavery; and annually enslave many thousands more, without any pretence of authority, or claim upon them." n99

    In 1764, at the time that he was arguably the most influential agitator against colonial regulation, James Otis mocked the racism that went hand-in-hand with slavery. So "shocking violation of the law of nature" could never be excused because Africans have "short curled hair ... instead of Christian hair, as it is called by those whose hearts are as hard as the nether millstone." n100 Nor could justification for it "be drawn from a flat nose, [and] a long or a short face." n101 He viewed the institution of slavery as a despoiler of civilization that prefers the interests of petty tyrants to the value of liberty. In another publication, Otis mocked the paradox of opposing the Stamp Act while leaving slavery intact: "I affirm, and that on the best information, the Sun rises and sets every day in the sight of five millions of his majesty's American subjects, white, brown and black." n102 Theologian Samuel Hopkins, who after the Revolution proved critical to abolishing slavery in Rhode Island, was likewise indignant at the "shocking ... [page 1194] intolerable inconsistence" of embracing liberty while "at the same time making slaves of many thousands of our brethren, who have as good a right to liberty as ourselves, and to whom it is as sweet as it is to us, and the contrary as dreadful!" n103 The commerce in humans was against nature, wrote Abraham Booth, because everyone, be they African or European, has an "equal claim to personal liberty with any man upon earth." n104 This equality was not regarded to be a matter of citizenship but of human nature. Everyone, it was thought, has a common share of essential rights that are immune against indiscriminate government intrusion. To think otherwise would fly in the face of the founding principle that "all men are created equal." n105

    On April 14, 1775, five days before the battles of Lexington and Concord, the first antislavery society was born. n106 Then, in 1785, with John Jay as its president, the New York Society for Promoting the Manumission of Slaves was organized. n107 In 1792, similar societies operated in Delaware, Rhode Island, Connecticut, New Jersey, Maryland, and Virginia. n108 The 1794 delegates to the Abolition Society decried the illogic of a republic that zealously advocated freedom to tolerate "in its bosom a body of slaves." n109 Each slave, wrote Richard Wells, "carries about him the strongest proofs in nature of his original rights." n110 Slavery was incompatible with the proposition that "ALL the inhabitants of America are entitled to the privileges of the inhabitants of Great-Britain." n111

    On March 8, 1775, just a month before Paine played an important part in the first antislavery society's formation, he bluntly asked Americans to reflect on their tyrannical hypocrisy. n112 Quaker Anthony Benezet was as poignant at using religious arguments as Paine was at using secular ones. [page 1195] Back in the 1760s, Benezet, who was one of the most influential abolitionist forerunners, related people's natural equality to their identity as a "species." n113 None was naturally superior since the "black-skin'd and the white-skin'd" were "all of the human Race." n114 Given the broad consensus that slavery lacked any legitimacy, it is no surprise, as the historian Winthrop D. Jordan summarized, that in the years preceding the Revolution a general impression prevailed that slavery was a "communal sin." n115

    Dred Scott, of course, would prove to be absolutely oblivious to these ideas. n116 Taney's opinion would fixate on the existence of slavery during the Revolution rather than the Constitution-drafting generation's overwhelming consensus that the institution was in conflict with the humanitarian purposes of republican government.

    In the North, the clarity of Revolutionary tenets led to various forms of emancipation. Prior to the Revolution, slavery was legal in all thirteen colonies. n117 In 1774, the Continental Congress required that the importation of slaves cease after December 1, 1775, but it lacked the power to enforce the decree. n118 Historian and sociologist W.E.B. Dubois pointed out that the colonists' motives for ending the trade were complex, including a genuine commitment to the philosophy of freedom in the Northern and Middle states, fear of slave insurrections fomented by newly arrived Africans, domestic slave breeders' economic self-interests, and a strategic decision to harm British commerce. n119 The Northwest Ordinance of 1787 prohibited the slave trade, slavery, and involuntary servitude from being introduced into the territory. n120 Yet it was an imperfect provision that contained an article [page 1196] allowing masters to lawfully reclaim fugitive slaves or indentured servants who fled there. n121

    Several states ended slave importation. This development began in 1774, when Rhode Island restricted the slave trade. The preface to the law explained that the state had decided "those who are desirous of enjoying all the advantages of liberty themselves, should be willing to extend personal liberty to others." n122 Rhode Island did not follow that policy to its ultimate conclusion, continuing to allow slave traders to temporarily bring their cargo into the state from the West Indies. n123 The same year, Connecticut also prohibited slave importation. n124 In the South, the slave trade was prohibited by Delaware (1776), Virginia (1778), and Maryland (1783). n125 In 1786, North Carolina enacted a prohibitory tax on the practice, and South Carolina prohibited importation in 1787 but reneged on that decision in 1803. n126

    The Northern emancipation of slaves manifested an even greater commitment to revolutionary ideals. The Vermont Constitution outlawed slavery in 1777, ten years before the federal Constitution had even been drafted. n127 Likewise the New Hampshire bill of rights of 1784 appears to have been the primary means for ending slavery there. It afforded even greater safeguards to vulnerable classes than would the federal Bill of Rights. New Hampshire provided that the natural rights to life, liberty and property "shall not be denied or abridged by this state on account of race, creed, color, sex or national origin." n128 Toward the same end, Massachusetts Chief Justice William Cushing of the Superior Court declared slavery to be against the constitutional principle of natural rights, according to which everyone was born "free and equal." n129

    [page 1197] Some Northern states, like Pennsylvania in 1780, only gradually transitioned from slavery. n130 Similarly gradual laws were enacted by Rhode Island and Connecticut in 1784, New York in 1799, and New Jersey in 1804. n131 Gradualism recognized the incompatibility of revolutionary ideals with slavery, but nevertheless temporarily validated slave holders' property interest. In contrast with the North, no Southern state outlawed slavery. The closest provisions to abolition there during the 1780s and 1790s were laws recognizing masters' right to manumit slaves, which passed in Virginia, Delaware, and Maryland. n132

    For most of those who were gradually or immediately manumitted, liberty entailed scarcely any of the privileges and immunities of citizenship. They emerged from slavery uncompensated for their years of toil and without the right to participate in the political process. Revolutionaries, who believed in the universality of natural rights, proved themselves unwilling to shed the prejudices of their era. Even the original Constitution, which was to be the model for republican self-government, contained guarantees for perpetuating slavery.

    [page 1198]

    Straying from National Aspirations

    For the sake of national unity, the original Constitution compromised the human rights principles of the Declaration of Independence and the Preamble. Several clauses left slave policies at the discretion of the states. Dred Scott later relied on those clauses to draw the inference that slavery was a constitutionally protected form of property. n133 Any attempt to keep it out of the federal territories, as by the Missouri Compromise of 1820, was an overreaching on the part of the federal government.

    The framers' decision to use "person held to Service or Labour," "such persons," and "other persons" instead of "slaves" and "slavery" indicated that some of them expected the institution to gradually vanish without any constitutional changes. n134 Whatever their wishes, the Constitution facilitated slavery's spread through overt protections of the institution for which the founding generation bears much responsibility. The most glaring protections of slavery came in the form of the Importation, Three-Fifths, and Fugitive Slave Clauses. n135 The Importation Clause prohibited Congress from abolishing the international slave trade for twenty years after state ratification of the Constitution. n136 The Three-Fifths Clause provided that slaves were to be counted as three-fifths of a person for the purpose of determining how many representatives a state was to have in Congress. n137 The Fugitive Slave Clause, n138 which passed without any dissenting votes at the Constitutional Convention, n139 required fugitives to be returned "on [page 1199] demand" and prohibited free states from liberating them. n140 Less overt, although no less protective of slavery, were clauses directing the apportionment of taxes among the states pursuant to the Three-Fifths Clause; n141 the Insurrection Clause, n142 giving Congress power to call up the militia to suppress slave revolts; the Domestic Violence Clause; n143 and a separate clause making the Importation Clause unamendable. n144

    These constitutional provisions established the foundation for the private property rights of whites, on which Chief Justice Taney's Dred Scott opinion placed great emphasis, n145 to trump any universal notions of liberty and equality. ...

    * * * [footnotes for this excerpt] * * *

    n55. See Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary Abolitionism Through the Thirteenth Amendment, 39 U.C. Davis L. Rev. 1773, 1779-83 (2006) (evaluating revolutionary writings on political slavery).

    n56. American Philosophical Society, Richard Henry Lee Papers, Background Note, http://www.amphilsoc.org/library/mole/l/lee.pdf.

    n57. Oliver P. Chitwood, Richard Henry Lee: Statesman of the Revolution 18 (1967) (quoting 1 Richard Henry Lee, Memoir of the Life of Richard Henry Lee and His Correspondence 17-19 (1825)).

    n58. Id.

    n59. Id. at 19.

    n60. Id. at 19-20.

    n61. Id. at 19.

    n62. 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 452 (Jonathan Elliot ed., 2d ed. 1891).

    n63. Id.

    n64. Id.

    n65. Id. at 453; Howard A. Ohline, Republicanism and Slavery: Origins of the Three-Fifths Clause in the United States Constitution, 28 Wm. & Mary Q. 563, 578 (1971).

    n66. James Madison, Notes of Debates in the Federal Convention Wednesday, August 21, 1787, at 503 (1987); 2 The Records of the Federal Convention of 1787, at 364, 370 (Max Farrand, ed., rev. ed. 1966); Oliver Ellsworth,"Landholder,' VI, Conn. Courant, Dec. 10, 1787.

    n67. Letter from Patrick Henry to Robert Pleasants (Jan. 18, 1773), in George S. Brookes, Friend Anthony Benezet 443-44 (1937).

    n68. Thomas Jefferson, Notes on the State of Virginia 162-63 (University of N. C. Chapel Hill Press 1955) (1787). On Jefferson's paltry condemnation of slavery, see David B. Davis, The Problem of Slavery in the Age of Revolution, 1770-1823, at 164-84 (1975); Winthrop D. Jordan, White over Black: American Attitudes Toward the Negro, 1550-1812, at 430-36 (1968); Duncan J. MacLeod, Slavery, Race and the American Revolution 126-29 (1974).

    n69. Thomas Jefferson, A Summary View of the Rights of British America 16-17 (1774).

    n70. Alexander Tsesis, The Thirteenth Amendment and American Freedom 12-13 (2004).

    n71. 1 The Papers of Thomas Jefferson 353, 363 (Julian P. Boyd ed., 1950).

    n72. 2 The Records of the Federal Convention of 1787, at 370 (Max Farrand ed., 1911) (statement of Col. George Mason).

    n73. John Mein, Sagittarius's Letters & Political Speculations 38-39 (1775).

    n74. Philip S. Foner, 1 History of Black Americans 303 (1975); see also A Letter from , in London to His Friend in America on the Subject of the Slave-Trade 15-16 (1784).

    n75. Letter from Thomas Jefferson to Edward Coles (Aug. 25, 1814) in 11 The Works of Thomas Jefferson 419 (Paul L. Ford ed., 1905). Coles, who was one time secretary of President James Madison and cousin of Dolly Madison, eventually set his own slaves free, but only after calling Madison out about his hypocritical conscience on slavery. See Ralph Ketcham, James Madison: A Biography 551-52 (1971); Paul Finkelman, The Dragon St. George Could not Slay: Tucker's Plan to End Slavery, 47 Wm. & Mary L. Rev. 1213, 1221 (2006) (describing Coles's manumission of his slaves).

    n76. Eli Ginzberg & Alfred S. Eichner, The Troublesome Presence: American Democracy and Black Americans 45-46 (1964); Eugene E. Prussing, The Estate of George Washington, Deceased 27, 158-59 (1927); Benjamin Quarles, The Negro in the American Revolution 187 (1961); 37 The Writings of George Washington 275-77 (John C. Fitzpatrick ed., 1931). Slavery was so imbedded in Virginia, however, that Washington's nephew and estate executor, Bushrod Washington, who was then a Supreme Court Justice, only carried out part of his uncle's will, selling some of the slaves. Elder Witt, Congressional Quarterly's Guide to the U.S. Supreme Court 809 (2d ed. 1990).

    n77. David Brion Davis, Inhuman Bondage 144 (2006)

    n78. Charles W. Brewster, Rambles About Portsmouth (2d ed. 1873); Davis, supra note 77, at 144.

    n79. Frank F. Mathias, John Randolph's Freedmen: The Thwarting of a Will, 39 J. S. Hist. 263, 263 (1973).

    n80. Deborah A. Lee & Warren R. Hofstra, Race, Memory, and the Death of Robert Berkeley: "A Murder ... of ... Horrible and Savage Barbarity", 65 J. S. Hist. 41, 57 (1999); Shomer S. Zwelling, Robert Carter's Journey: From Colonial Patriarch to New Nation Mystic, 38 Am. Q. 613, 613 (1986).

    n81. Mary Haldane Coleman, Whittier on John Randolph of Roanoke, 8 New Eng. Q. 551, 551-52 (1935).

    n82. Howard DeLong, Jeffersonian Teledemocracy, 4 U. Chi. L. Sch. Roundtable 47, 63 (1997).

    n83. Luther P. Jackson, Manumission in Certain Virginia Cities, 15 J. Negro Hist. 278, 281 (1930); see also Ira Berlin, Slaves Without Masters 30 (1974).

    n84. Berlin, supra note 83 at 46.

    n85. Id.

    n86. See University of Virginia Library, Historical Census Browser, http://fisher.lib.virginia.edu/collections/stats/histcensus/php /start.php?year=V1790 (last visited Nov. 29, 2007) (click "slaves" under "Slave Population" heading, then click "submit query"). My statistics differ from Berlin, supra note 83, partly because he included territories in his calculation of slave population, while I only calculated the number of slaves living in the states.

    n87. University of Virginia Library, Historical Census Browser, http://fisher.lib.virginia.edu/collections/stats/histcensus/php /start.php?year=V1800 (last visited Nov. 29, 2007) (follow directions in supra note 86).

    n88. Id.

    n89. Philip D. Curtin, The Atlantic Slave Trade: A Census 140 tbl.40 (1969). I am referring here to the 1781-1810 column of Curtin's demographic table. Id.

    n90. 2 Francois J. Chastellux, Travels in North America in the Years 1780, 1781, and 1782, at 440 (Howard C. Rice, Jr. trans., 1963) (1787).

    n91. Arthur Zilversmit, The First Emancipation: The Abolition of Slavery in the North 107-229 (1967) (detailing the abolition of slavery in Northern states).

    n92. George Buchanan, An Oration upon the Moral and Political Evil of Slavery 14 (Philip Edwards 1793).

    n93. Id. at 13.

    n94. Benjamin Trumbull, A Discourse, Delivered at the Anniversary Meeting of the Freemen of the Town of New-Haven 31-32 (New Haven, Green 1773).

    n95. David Cooper, A Serious Address to the Rulers of America, on the Inconsistency of Their Conduct Respecting Slavery 14 (London, J. Phillips 1783).

    n96. Id.

    n97. Id. at 11.

    n98. Alexander Hamilton, A Full Vindication of the Measures of the Congress 5 (New York, Rivington 1774).

    n99. Thomas Paine, African Slavery in America (1775), reprinted in 1 The Writings of Thomas Paine 4, 7 (Moncure Daniel Conway ed., AMS Press 1967) (1894).

    n100. James Otis, Rights of the British Colonies Asserted and Proved 43-44 (Boston, J. Almon 1764).

    n101. Id.

    n102. James Otis, Considerations on Behalf of the Colonists 30 (2d ed. 1765).

    n103. Samuel Hopkins, A Dialogue Concerning the Slavery of the Africans 50 (Norwich, Spooner 1776).

    n104. Abraham Booth, Commerce in the Human Species, and the Enslaving of Innocent Persons, Inimical to the Laws of Moses and the Gospel of Christ 18 (London, Wayland 1792).

    n105. James Dana, Doctor Dana's Sermon on the African Slave Trade 28 (1790) (quoting The Declaration of Independence para. 2 (U.S. 1776)).

    n106. Lorenzo Dow Turner, The Anti-Slavery Movement Prior to the Abolition of the African Slave-Trade (1641-1808), 14 J. Negro Hist. 373, 396 n.80 (1929).

    n107. J. Franklin Jameson, The American Revolution Considered as a Social Movement 23-24 (Beacon Press 1956) (1926).

    n108. Id. at 24.

    n109. Address of a Convention of Delegates from the Abolition Society, to the Citizens of the United States 5 (New York, Durell 1794).

    n110. Richard J. Wells, A Few Political Reflections Submitted to the Consideration of the British Colonies 81 (Philadelphia, Dunlap 1774).

    n111. Id. at 80.

    n112. Paine, supra note 99, at 7.

    n113. See Anthony Benezet, A Short Account of That Part of Africa, Inhabited by the Negroes 36-38 (2d ed. Philadelphia, Dunlap 1762).

    n114. Id. at 38.

    n115. See Jordan, supra note 68 at 298.

    n116. See infra Part III.

    n117. Philip A. Klinkner with Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America 20 (1999); Peter Kolchin, American Slavery: 1619-1877, at 78-79 (1993) (describing emancipation in the North); Duncan J. MacLeod, Slavery, Race and the American Revolution 98-99 (1974) (discussing abolition during the Revolutionary Era); Zilversmit, supra note 91, at 116 (indicating that Vermont passed the first law to abolish slavery in 1777).

    n118. Michael Daly Hawkins, John Quincy Adams in the Antebellum Maritime Slave Trade: The Politics of Slavery and the Slavery of Politics, 25 Okla. City U. L. Rev. 1, 5 (2000); William P. Quigley, Reluctant Charity: Poor Laws in the Original Thirteenth States, 31 U. Rich. L. Rev. 111, 172 n.401 (1997).

    n119. W. E. Burghardt DuBois, The Suppression of the African Slave-Trade to the United States of America, 1638-1870, at 45-57 (Cambridge, Univ. Press 1904) (1896).

    n120. Peter Kolchin, American Slavery, 1619-1877, at 78-79 (1993).

    n121. The Northwest Ordinance, art. VI, 1 Stat. 50, 53 (1789).

    n122. Quarles, supra note 76, at 41.

    n123. Id.

    n124. Id. at 40-41.

    n125. Patrick S. Brady, The Slave Trade and Sectionalism in South Carolina, 1787-1808, 38 J. S. Hist. 601, 602 n.2 (1972) (recounting that Maryland ended slave trade in 1783); William Cohen, Thomas Jefferson and the Problem of Slavery, 56 J. Am. Hist. 503, 508 (1969) (stating that Virginia outlawed slave trade in 1778); James Wilford Garner, Amendment of State Constitutions, 1 Am. Pol. Sci. Rev. 213, 217 (1907) (stating that the Delaware Constitution of 1776 forbade the establishment of slavery).

    n126. Brady, supra note 125, at 601, 602 n.2 (providing information on North Carolina and South Carolina); Joyce E. Chaplin, Creating a Cotton South in Georgia and South Carolina, 1760-1815, 57 J. S. Hist. 171, 191 (1991).

    n127. Vt. Const. of 1777, ch. I, § 1, available at http://www.yale.edu/lawweb/ avalon/states/vt01.htm.

    n128. N.H. Const. of 1784, art. II, available at http://www.state.nh.us/ constitution/billofrights.html.

    n129. Philip S. Foner, History of Black Americans 353 (1975).

    n130. John M. Mecklin, The Evolution of Slave Status in American Democracy, 2 J. Negro Hist. 229, 230 (1917); Lea VanderVelde & Sandhya Subramanian, Mrs. Dred Scott, 106 Yale L.J. 1033, 1045 n.45 (1997).

    n131. See Jameson, supra note 107, at 25; 10 Records of the State of Rhode Island and Providence Plantations in New England 132 (John Russel Bartlett ed., New York, AMS Press 1865) ("Every negro or mulatto child born after the first day of March, A.D. 1784, be supported and maintained by the owner of the mother of such child, to the age of twenty-one years, provided the owner of the mother shall during that time hold her as a slave; or otherwise, upon the manumission of such mother ... ."); Lois E. Horton, From Class to Race in Early America: Northern Post-Emancipation Racial Reconstruction, 19 J. Early Republic 629, 639 (1999). By 1830, fewer than 3,000 blacks remained enslaved, while 125,000 blacks lived freely in the northern and middle states. Gordon S. Wood, Revolution and the Political Integration of the Enslaved & Disenfranchised, Address Before the House of Representatives' Chamber, Kentucky State Capitol (Jan. 9, 1974), in American Enterprise Institute for Public Policy Research 13 (1974).

    n132. Don E. Fehrenbacher, The Dred Scott Case 49 (1978); Kolchin, supra note120, at 77; David Skillen Bogen, The Maryland Context of Dred Scott: The Decline in the Legal Status of Maryland Free Blacks 1776-1810, 34 Am. J. Legal Hist. 381, 392 (1990) (regarding manumission in Maryland); Luther P. Jackson, Religious Development of the Negro in Virginia from 1760 to 1860, 16 J. Negro Hist. 168, 179 (1931) (discussing the history of manumission in Virginia); Marianne Buroff Sheldon, Black-White Relations in Richmond, Virginia, 1782-1820, 45 J. S. Hist. 27, 33 (1979) (mentioning the Virginia manumission act of 1782); Delaware Slave Law Summary and Record, http://www.slaveryinamerica.org/ geography/slave_laws_DE.htm (last visited Nov. 29, 2007).

    n133. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404-05 (1856).

    n134. See generally Tsesis, supra note 12, at 320.

    n135. See id. at 319-22; see also Wendell Phillips, The Constitution: A Pro-slavery Compact 3-7 (Negro University Press 1969) (1844); William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848, at 62-83 (1977); Frederick Douglas, The North Star, Apr. 5, 1850, reprinted in Voices from the Gathering Storm: The Coming of the American Civil War 40-41 (Glenn M. Linden ed., 2001); Frederick Douglas, The North Star, Feb. 9, 1849, reprinted in The Life and Writings of Frederick Douglas: Early Years, 1817-1849, at 352-53 (Philip S. Foner ed., 1950); Frederick Douglas, The Revolution of 1848, Speech at West India Emancipation Celebration, Rochester, New York (Aug. 1, 1848), in The Life and Writings of Frederick Douglas: Early Years, 1817-1849, at 321-30 (Philip S. Foner ed., 1950).

    n136. U.S. Const. art. I, § 9.

    n137. Id. art. I, § 2, cl. 3.

    n138. Id. art. IV, § 2, cl. 3.

    n139. See Don E. Fehrenbacher, Slavery, Law and Politics: The Dred Scott Case in Historical Perspective 13 (1981) (disputing the view that the Fugitive Slave Clause was indispensable to the success of the Constitutional Convention); Raymond T. Diamond, No Call to Glory: Thurgood Marshall's Thesis on the Intent of a Pro-Slavery Constitution, 42 Vand. L. Rev. 93, 121 (1989) (asserting that the Fugitive Slave Clause did not arouse much debate at the Constitutional Convention because it was not a significant issue); Paul Finkelman, Sorting Out Prigg v. Pennsylvania, 24 Rutgers L.J. 605, 613 (1993) (asserting that while the "initial response" to South Carolina's proposed fugitive slave provision "was hostile," the Constitutional Convention "with neither debate nor formal vote, adopted the fugitive slave provision as a separate article of the draft constitution").

    n140. See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 575 (1842).

    n141. U.S. Const. art. I, § 2, cl. 3, amended by U.S. Const. amend. XIV, § 2; U.S. Const. art. I, § 9, cl. 4, amended by U.S. Const. amend. XVI.

    n142. U.S. Const. art. I, § 8, cl. 15.

    n143. U.S. Const. art. IV, § 4.

    n144. U.S. Const. art. V; see Samuel Marcosson, Colorizing the Constitution of Originalism: Clarence Thomas at the Rubicon, 16 Law & Ineq. 429, 469 (1998) (arguing that Article V can be viewed as "the Framers' insurance policy against the possibility that then-excluded groups, including women, blacks and free blacks, could one day change the power structure the Founders had erected without regard for the needs, views, and priorities of the members of those groups").

    n145. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404-07 (1856).

    ...

    Posted 2010-01-22 12:00 PM (#32281) By: Maryland

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