No Property in Man: Slavery and Antislavery at the Nation’s Founding, With a New Preface (The Nathan I. Huggins Lectures Book 18)

by Sean Wilentz

Most important, the convention took care to ensure that while the Constitution would accept slavery where it already existed, it would not validate slavery in national law; that is, the Constitution would tolerate slavery without authorizing it.

affirming that it would be wrong, as James Madison said at the Federal Convention, “to admit in the Constitution the idea that there could be property in men,” the framers left room for political efforts aimed at slavery’s restriction and, eventually, its destruction, even under a Constitution that safeguarded slavery. Those efforts, although sporadic through the early years of the nineteenth century, would eventually bring the advent of the Republican Party, the outbreak of the Civil War, and the completion of emancipation in 1865. I

although the framers agreed to compromises over slavery that blunted antislavery hopes and augmented the slaveholders’ power, they also deliberately excluded any validation of property in man.

It rendered slavery solely a creation of state laws. It thereby opened the prospect of a United States free of slavery—a prospect some delegates deeply desired and many more believed was coming to pass.

The delegates to the convention in Philadelphia presumed from the start that their new national government would be barred from interfering directly with slavery in states where it already existed.

Above all, the convention drew a line against acknowledging slavery’s legitimacy outside of state law and took pains to have the Constitution make that line perfectly clear. This

Most of the delegates to the Federal Convention supposed that slavery would exist under the new Constitution strictly as a state (or, in common parlance, local) institution.

Elbridge Gerry, a delegate from Massachusetts, made the point directly, telling the convention that the Constitution should have “nothing to do with the conduct of the States as to Slaves, but ought to be careful not to give any sanction to it.”3

was, rather, an insistence on limiting slavery’s legitimacy—a limitation that a majority of the convention would affirm repeatedly.

After 1815, as antislavery agitation became much more formidable, the distinction—and, specifically, the framers’ exclusion of property in man—became the constitutional basis for the politics that in time led to slavery’s destruction.

Under the right political circumstances, a national government powerful enough to abolish slavery summarily could just as easily impose slavery.

Instead, by refusing to credit the legitimacy of slavery, the convention left open the possibility of declaring freedom as the national standard and slavery the exception.

But the delegates carefully described the slaves not as property but as “persons.”

James Madison’s notes on the convention debates, a leading Lower South delegate “seemed to wish some provision should be included in favor of property in slaves,” but the convention rejected the proposal by an overwhelming margin.

Drawing on stray comments during the convention and some later antislavery criticisms and proslavery defenses of the Constitution, scholars have ascribed the convention’s exclusion of property in man not to an insistence on limiting slavery’s legitimacy but to northern disgrace about the concessions the convention granted to slavery.

In fact, the framers’ choice of words was a substantive matter, not a cosmetic one. The convention’s key arguments over how to describe slaves and slavery in the Constitution had little or nothing to do with the prudent suppression of distasteful language. They had to do with ensuring that the Constitution contained nothing that could be construed as acknowledging and thereby endorsing property in man.

To dismiss the delegates’ refusal to recognize the legitimacy of slavery as a linguistic technicality is to trivialize an important part of the convention’s work.

Abraham Lincoln stated the point as directly as anyone when he observed in his Cooper Institute address in 1860 that the framers referred to slaves as persons “on purpose to exclude from the Constitution the idea that there could be property in man.”

Yet despite the necessity of allowing for the slaveholders’ wealth in slaves—indeed, because of that necessity—a majority of the Federal Convention was determined to prevent recognizing slavery as a normal institution in the new nation.

“Prior to the great revolution,” John Jay would observe to his British abolitionist counterparts, the great majority of Americans “had been so long accustomed to the practice and convenience of having slaves, that very few among them even doubted the propriety and rectitude of it.”23

affirming that new reality, the Constitution carefully if for the most part silently limited slavery’s legitimacy.

There is more truth in saying that antislavery, rather than slavery, caused the Civil War.

The Constitution’s ambiguities and the paradox behind them were part of the price paid to create the new American nation.

ORGANIZED ANTISLAVERY POLITICS originated in America. In 1775, five days before the battles of Lexington and Concord, ten Philadelphians, seven of them Quakers, founded the first antislavery society in world history, the Society for the Relief of Free Negroes Unlawfully Held in Bondage.

Between 1660 and 1710, virtually every English colony in the New World enacted laws defining slaves as conveyable property. Despite variations between colonies, they all grappled, David Brion Davis writes, with “the impossibility of acting consistently on the premise that men were things.”

universal assumption remained that slaves, although possessed of personhood, were also the same as any other form of sentient property, like horses or cows, which could be moved or alienated at the owner’s will.

The northern slaveholders’ counterattack on the emancipationists frequently appealed to racism—not as obsessive as the racism that emerged after emancipation, but direct and nasty enough.

Slaveholders and their supporters also ferreted out quotations from the Bible that supposedly sanctified human bondage,

The Rhode Island gradual abolition law of 1784 most pointedly of all the emancipation laws announced that achievement to the world: “All Men are entitled to Life, Liberty and the Pursuit of Happiness,” it began, and “holding Mankind in a State of Slavery, as private Property, which has gradually obtained by unrestrained Custom and the Permission of the Laws, is repugnant to this Principle, and subversive of the Happiness of Mankind.”54 The words were galling to northern slaveholders. They were truly alarming further south. Nothing