Article IV, Section 2, Clause 3:

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.

This clause, effectively nullified by the Thirteenth Amendment’s abolition of slavery,1 contemplated the existence of a right on the part of a slaveholder to reclaim an enslaved person that had escaped to another state.2 Following the debate on the constitutional provision requiring states to return felons who had fled from one state to another,3 Pierce Butler and Charles Pinckney of South Carolina moved “to require fugitive slaves and servants to be delivered up like criminals.” 4 Although James Wilson and Roger Sherman objected that this “would oblige the executive of the State to [seize fugitive slaves], at the public expense,” the provision was approved by the Convention unanimously without further debate.5

Congress had the power to enact legislation enforcing the Clause,6 which it first did in 1793.7 Under the Supreme Court’s interpretation of the Fugitive Slave Clause, the owner of an enslaved person had the same right to seize and repossess him in another state, as the local laws of his own state granted to him, and state laws that penalized such a seizure were unconstitutional.8 Moreover, states had no concurrent power to legislate on the subject.9 However, a state statute providing a penalty for harboring an escaped slave was held not to conflict with the Clause because it did not affect the right or remedy of the slaveholder, but rather a rule of conduct for its own citizens in the exercise of states’ police power.10

Footnotes

1

U.S. Const. amend. XIII.

2

See 3 Joseph Story, Commentaries on the Constitution of the United States §§ 1804–1805 (1833).

3

U.S. Const. art. IV, § 2, cl. 2.

4

2 Max Farrand, Records of the Federal Convention of 1787 (1911), at 443.

5

Id. at 446. Although the Articles of Confederation lacked an analogous provision, see 3 Story’s Commentaries, supra note 2, at § 1805, the Northwest Ordinance of 1787, even as it abolished slavery in the Territory, provided for the return of fugitive slaves who escaped there. See Ordinance of 1787 art. VI ( “Provided, always, That any person escaping into the [territory], from whom labor 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 labor or service as aforesaid.” ).

6

Jones v. Van Zandt, 46 U.S. (5 How.) 215, 229 (1847).

7

1 Stat. 302 (1793). The enforcement provisions of Fugitive Slave Act of 1793 were strengthened as part of the Compromise of 1850. See 9 Stat. 462 (1850).

8

Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612 (1842); Ableman v. Booth, 62 U.S. (21 How.) 506 (1859).

9

Prigg, 41 U.S. at 625.

10

Moore v. Illinois, 55 U.S. (14 How.) 13, 17 (1853).