Fugitive Slave Clause

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.

Article IV, Section 2, Clause 3

Toward the end of the Constitutional Convention, during the debate over the Privileges and Immunities Clause (Article IV, Section 2, Clause 1), Charles Pinckney of South Carolina remarked that "some provision should be included in favor of property in slaves." Thereafter, he and his fellow South Carolinian, Pierce Butler, moved "to require fugitive slaves and servants to be delivered up like criminals." The motion was withdrawn after James Wilson and Roger Sherman objected, but the next day it was renewed as a formal addition to what would become Article IV. It passed unanimously and without debate. This was probably because there was a strong precedent in the Northwest Ordinance of 1787 (passed six weeks earlier by Congress), which included a fugitive-slave provision along with its declaration (presaging the Thirteenth Amendment) that "neither slavery nor involuntary servitude" would exist in the territory.

A model of circumlocution, the resulting clause is the closest of the so-called Slave Clauses (Article I, Section 2, Clause 3; Article I, Section 9, Clause 1; and Article V) to recognizing slavery as a protected institution. It also became the most controversial of the clauses and was at the center of many constitutional disputes in the 1840s and 1850s.

As initially proposed in the Convention, the language spoke of persons "bound to service or labor" being delivered up to the person "justly claiming their service or labor." This was revised by the Committee of Style to refer to persons "legally held to service or labour" being delivered up to "the party to whom such service or labour may be due," thereby making the law the arbiter and removing the recognition of "just" claims to slave property. In contrast, for instance, the previous clause (Article IV, Section 2, Clause 2) speaks of those charged with crimes "who shall flee from Justice."

At the last moment, the phrase "Person legally held to Service or Labour in one state" was amended to read "Person held to Service or Labour in one state, under the Laws thereof" to make the clause comply, according to James Madison's notes, "with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view." This revision emphasized as well that slaves were held according to the laws of individual states, and that slaveholding was not based either upon natural law or the common law, avoiding the implication that the Constitution itself legally sanctioned the practice. The section also leaves a clear implication, contrary to the holding in Dred Scott v. Sandford (1857), that the slave owner's property claim did not apply in federal territories, if Congress chose to prohibit slavery there. Indeed, according to the legal requirements of the clause, an escaped slave would have ceased to be a slave as soon as he had entered a state that did not recognize slavery under its own law.

Of the other three sections in Article IV, two grant powers to Congress and one vests power in the United States generally. Written in the passive voice, Section 2 confers no powers on the federal government but limits state authority, giving rise to the argument that the clause is simply declaratory. In 1793, however, Congress passed legislation to enforce the clause. In its first decision on the issue, the Supreme Court held (in a decision written by Justice Joseph Story) that Congress had exercised powers that were necessary and proper to carry out the provision and that a state law that penalized the seizure of fugitive slaves was unconstitutional. Prigg v. Pennsylvania (1842). Story did note, in an obiter dictum, that the federal government could not compel state officials to enforce the act. This led to numerous states passing personal-liberty laws (prohibiting state officials from enforcing the federal statute) and then to a new federal Fugitive Slave Act enacted as part of the Compromise of 1850. In Moore v. Illinois (1852), the Supreme Court held that states could impose penalties on their citizens for harboring fugitive slaves. Later, when the Wisconsin Supreme Court supported resistance to the Fugitive Slave Act by declaring it unconstitutional, the United States Supreme Court unanimously reversed. Ableman v. Booth (1859).

In Dred Scott v. Sandford, Chief Justice Roger B. Taney attempted to use this clause, along with the so-called Slave Trade Clause (Article I, Section 9, Clause 1), as evidence that slaves were not citizens but were to be considered property according to the Constitution. By this clause, Taney argued, "the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service."

The more generally accepted interpretation, however, is that this clause did not speak to the issue of citizenship at all, but was a necessary accommodation to existing slavery interests in particular states, required for the sake of establishing the Constitution—"scaffolding to the magnificent structure," Frederick Douglass called it, "to be removed as soon as the building was completed." This point is underscored by the fact that, although slavery was abolished by constitutional amendment (see the Thirteenth Amendment), not one word of the original text had to be amended or deleted.

Profile photo of Matthew Spalding
Matthew Spalding
Vice President, American Studies
Director, B. Kenneth Simon Center for Principles and Politics
B. Kenneth Simon Center for Principles and Politics
The Heritage Foundation