By tracing slavery from before the revolution, through the Constitution's framing, and into the public debate that followed, Waldstreicher rigorously shows that slavery was not only actively discussed behind the closed and locked doors of the Constitutional Convention, but that it was also deftly woven into the Constitution itself. For one thing, slavery was central to the American economy, and since the document set the stage for a national economy, the Constitution could not avoid having implications for slavery. Even more, since the government defined sovereignty over individuals, as well as property in them, discussion of sovereignty led directly to debate over slavery's place in the new republic.
Finding meaning in silences that have long been ignored, Slavery's Constitution is a vital and sorely needed contribution to the conversation about the origins, impact, and meaning of our nation's founding document.
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From Revolution to Ratification
By David Waldstreicher
Hill and WangCopyright © 2009 David Waldstreicher
All rights reserved.
The Mansfieldian Moment
"Rule Britannia, rule the waves," went the popular song of 1740. "Britons never will be slaves." Written at a moment when Britain was at war on the seas, battling for trade and for colonies, the song identified ordinary British people with a broader empire. Freedom came with rule overseas. Freedom and rule, together, exemplified the opposite of human bondage, for those who sang the song. Freedom explained itself: the opposite of slavery. Rule explained the enslavement of others in the empire.
There is not much evidence that this song was particularly beloved in British North America. Its invocation of slavery may have been a bit too overt, with slaves so nearby. Certainly the emphasis on British overseas rule clashed with colonial presumptions of self-government. During the early eighteenth century the growth of the empire and the growth of slavery posed fundamental questions about freedom, governance, and national identity. The unwritten British constitution, composed of Parliament's laws and judges' interpretations, proved flexible enough to handle these questions until an expensive world war and a vast addition of North American territory raised them anew. The politics of slavery played a significant part in that imperial crisis and in its better-known results: a revolutionary war and the creation of the United States.
In the early modern world, the British came late to empire, and still later to slavery. The Spanish had pioneered both institutions, and the British did not so much decide to enslave natives in the Americas or Africa as they found ways to get in on the system. Early idealism, whereby Englishmen imagined they would find more peaceful ways to exploit the New World's resources and compete with the rest of Europe for the balance of power on the Continent, gave way to battles for conquests and similar strategies. Rather than being between slavery and freedom, the basic difference lay between the gold-mining operations of the Spanish Empire and the agricultural model of the English, who at first had to settle for lands without precious metals. When the English gained footholds and then settled in zones like Barbados that supported cash crops like tobacco and sugar, they turned first to native laborers, then to their own poor populations, and finally to Africans in growing numbers. During the mid-to late seventeenth century, the mainland colonies of Virginia and, later, South Carolina grew rapidly on the Caribbean model. Within a few decades, the northern colonies of New England, Pennsylvania, and New York experienced their own population explosions, thanks to the opportunities to supply the southerly tobacco and sugar colonies with food, with ships, with all kinds of supplies. During the same years, more and more Africans toiled in those places.
Each colony was different — in size, in trade, in form of government, and in labor supply. Slavery was one of the institutions that exemplified these differences. Yet during the eighteenth century each prospering colony became more enmeshed in an imperial system of supply and demand operating within a competitive world often at war. The more integrated into the Atlantic system each colony became, the more slaves arrived there, on the same ships that delivered New World produce and returned Old World supplies in exchange.
Theoretically, the British Empire ran its colonies and their economies for the benefit of the mother country and, secondarily, the empire as a whole. In practice, this meant considerable autonomy for the colonists, and allowances for local customs by imperial officials. According to the folks whose parents had migrated across the ocean from various parts of the British Isles, these very freedoms were what made them English. A series of crises in late-seventeenth-century England had helped develop distinctly English ideas of traditional liberties, guarded by Parliament and a king who no longer was divinely authorized but rather was himself a guardian of parliamentary liberties. Originally, the king had been the special overseer of overseas "dominions" and used them as favors, giving away lands and trading well-paying jobs like colonial governorships for political support in Parliament. Eventually, the king ruled his dominions in consultation and cooperation with Parliament through the Board of Trade, which had the power to disallow the acts of the provincial assemblies or legislatures. The two revolutions in late-seventeenth-century England — the civil wars of 1641 to 1660 and the "glorious" overthrow of James II in 1688 — tended to strengthen the parliamentary central government of England while drawing attention away from the colonies. Colonists used the opportunity to claim their own liberties and identify those claims with constitutional developments in England.
What no one wanted to face was that the claims of Parliament to extend its rule in the name of the British people could conflict with the claims of white colonists to run their own local societies in the name of their "English" rights. Occasionally, when the interests of the home country conflicted with those of some colonial leaders, a standoff occurred. Sometimes colonial officials would back down, or find a compromise. Sometimes they would decree otherwise — compelling obedience to central authority. Sometimes colonists would simply disobey, trusting distance to cover the difference between the letter of the law and its lax enforcement. British imperial government, and the fighting of its increasingly regular wars with the French and Spanish empires, was a matter of constant negotiations, and, increasingly, lobbying as well. The mainland colonies began to send informal representatives to London, as well as letters "home" on the same ships that carried their goods to distant markets.
Because of the sheer centrality of slavery in the British Empire by the mid-eighteenth century, some of the more difficult to resolve controversies between individual colonies and the home government did concern slaves and the things slaves produced. Northern mainland colonists expressed great frustration, for example, when Parliament passed the Molasses Act of 1733. This law tried to make it more difficult for British American shippers and rum distillers to trade with the French sugar-producing colonies — a trade that hurt the British West Indies. That such legislation passed Parliament showed how much more important the sugar colonies, with their highest proportion of slaves to settlers, seemed to London. The experience of losing out to the British West Indians did not cost Rhode Island and Massachusetts merchants much trade. Instead, it led them to become bolder smugglers. In Rhode Island, where governors were elected, they also learned to support men like Stephen Hopkins, who made it unofficial policy to discourage the collection of duties and the capture of illegal traders.
Colonists began to develop arguments for why freer trade, and customary liberties, suited the empire as well as the colonies. Benjamin Franklin, the owner-editor of The Pennsylvania Gazette, paid close attention to the efforts of Joshua Gee, a merchant and colonial lobbyist, to argue that the weavers of wool in the northern colonies were just as important to the health of the empire as the growers of sugar in Barbados. Why? Because they made the clothes that the slaves wore. Franklin also copied out a position paper written by James Logan in 1732 that equated northern colonial freedom with British imperial prosperity. Unlike the West Indies, the northern colonies occupied more territory, grew more rapidly, "and which is no Trifle in their Case, much more mildly Treat their Slaves."
In 1750, when Parliament passed the Iron Act, an attempt to restrain the growing middle colonies' iron industry from underselling English manufacturers, Franklin took the occasion to develop an entire theory of imperial population growth, economy, and governance. More colonists in the empire peopling remote regions, producing and buying and selling according to opportunity, meant more wealth all around. It made no sense for the British to worry about the northern colonies manufacturing too much — or trading too much sugar — because prosperity in the northern colonies meant population growth, which translated directly into a larger market for English manufactured goods.
The only real threat to the system, Franklin argued, was the spread of large-scale African slavery to the northern zones. Africans, because they were property, not citizens, did not consume imports; in the long term they were not productive members of the empire. Slaves were "by nature" thieves (an argument he later clarified to read "by the nature of slavery"). Instead of forbidding colonial manufacturing, Parliament should forbid the only threat to England's manufacturers: the possibility that cheap slave labor — like the slaves being used by Pennsylvania iron makers — might undersell goods made in England. Regulate slaves and slavery, or let us do so, Franklin was arguing; but keep your hands out of the pockets of productive British citizens.
Why was Franklin making this argument? One thing that is certain is that around 1748, at the end of another cycle of European conflicts that turned into wars for colonies, some British officials were beginning to advocate for a stronger, more centralized apparatus of imperial government. Simultaneously, experts on the colonies and trade displayed a keen appreciation of slavery's growth and importance. One influential member of the Board of Trade, Malachy Postlethwayt, called the "African trade" (by which he meant the trade with Africa that included slaves) "the fundamental prop and support" in the British Empire. In his analysis, as in the thinking that went into the Woolen Act and the Molasses Act, the northern colonies (and even the tobacco growers of Virginia) appeared as mere subsidiaries to the larger and more important African-Caribbean-European trading system. Northern prospects depended on imperial protection, including permission to enslave and trade. James Abercromby, another colonial official, wrote in 1752 that lucky immigrants to America became "landlords with extensive possessions," in part through the use of slave labor. All the more reason to make sure these highly privileged colonists followed the laws made in England "in all cases whatsoever."
Franklin was aware of this trend in thinking about the colonies and sought to provide an alternative, particularly in the matter of increasing taxes and legislation. Maybe the northern colonies, with fewer slaves, were different. He was trying to draw a distinction between, on the one hand, the West Indies and southern plantation colonies, with their large numbers of slaves, and, on the other hand, the northern colonies like Pennsylvania. In doing this, Franklin began to play an important role in discussions of colonial governance and of slavery. It was typical of his brilliance that he so early perceived, and tried to shape, the relationship between the two institutions.
Yet the essay failed to achieve its goals. That may have been because of its counterintuitive suggestion that slaves did not actually produce wealth. Or it may have been his compensatory, over-the-top concluding appeal that Britain ought to be a "white and red" (northern European and Native American) empire at a time when its "black" and "swarthy" (African, German, and other non-English European) men and women were doing so much of the empire's work.
The essay failed to influence policy for another reason, though, one that Franklin's culminating focus on slavery and then race gave away. By 1750 the British colonists had developed a severe image problem. When people in England thought of America, they did not think of a place of British freedom, even though British people often crossed the ocean for economic and religious opportunities. They thought of a place less British, a place of unfreedom, a place with indentured servants, convict laborers also bound for a period of years, and slaves. During the same years when imperial ties and trade thickened, and colonists participated in wars that made them feel more British, negative perceptions spread, reinforced by the habit, born of interest, that some Britons had of seeing the colonies as inferior because they were unfree. Travel writers and novelists were less impressed by the color line that made slaves of only Africans and some natives, while leaving Europeans free after seven or fewer years, than by the generally pervasive practices of unfreedom on which colonial prosperity seemed to rest.
By the 1750s, writers for the press in England were increasingly likely to bring up the unfree conditions in the colonies as an example of why the colonies needed to be more tightly regulated. England's desire to assert more control occurred at a time when the British West Indies colonies were gaining power and prominence in the imperial scheme of things. This reflected an access to power that few if any North Americans possessed. Absentee planters bought English estates and gained seats in Parliament, something no North American ever did without returning to England for good.
While the continental colonists did not lack influence, when compared with the West Indian planters, they felt as if they had none: there were so many more of them than there were white West Indians. Leaders like Franklin, who in 1757 went over to London to represent the interests of Pennsylvania, saw the North American mainland as the future, even if mainland trade depended on ties to the British as well as the French Caribbean. With white colonists surging into the Ohio River valley, some English observers agreed. The next major war set the stage for change because it began not in Europe or on the high seas but near present-day Pittsburgh, over the presence of forts in Indian territory claimed by both the French and the British.
The Seven Years' War became another world war, fought in India and the Caribbean as well as in the Great Lakes and Hudson River valley. But it was won, once again, on the ocean. England took French Guadeloupe and Martinique in 1759. A transatlantic debate ensued about whether to give back those islands at the bargaining table, as England had done with former French possessions in previous wars, or to exchange them for French Canada. Franklin weighed in with an important pamphlet, again depicting the sugar islands as inferior to the vast cold northern lands. The British, surprisingly, kept Canada.
This time, the northern Americans got exactly what they wanted — the removal of the French threat to the north — in a war that had depended on their active support. (The war hardly touched the southern mainland colonies, and they largely sat out the conflict.) The Northerners had resisted the demands of British officials that they pay for the war and follow British military orders; when the pro-American William Pitt became prime minister, his winning "blue-water" strategy dictated reimbursing the colonies for their expenses and making them more equal participants in the war effort.
The colonies, however, would have to pay to play. Politically speaking, raising taxes in England, instead of in the colonies, could only be sustained temporarily. In 1760, at Pitt's urging, the home government was already ordering enforcement of the old rules against illicit trade with the French sugar islands.
New Englanders responded first. "I know not why we should blush to confess that molasses was an essential ingredient in American independence," John Adams would write years later, remembering the central role of Yankee sugar merchants in the first protests against new imperial regulations. When the governor of Massachusetts tried to enforce the Crown's right of search and seizure in 1761, remembered Adams, the lawyer James Otis argued against "writs of assistance" that allowed any British official to compel local officials to help search for illegal goods. Standing in court before the wigged representatives of the Crown, Otis created a sensation by invoking natural rights and traditional British privileges against British authority. He called all such regulations going back to the Navigation Acts of a century before "instruments of slavery" and unconstitutional.
What was Otis talking about? Like most lawyers preaching to a judge and jury, he was trying to persuade, pushing logic a bit further, but not so far that it would fail to make sense. To be British in the age of empire meant never being a slave. It meant having an interest in the empire; it meant having rights to pursue economic interests, to have property. If rum was "the life blood of colonial commerce," nothing could be more threatening to traditional British rights than interference with the rum trade. To be British, indeed, meant to translate economic interests like trade into questions of rights, liberties, and fundamental law. And economic interests, in New England as well as in Virginia, included slaves and the things slaves made.
Excerpted from Slavery's Constitution by David Waldstreicher. Copyright © 2009 David Waldstreicher. Excerpted by permission of Hill and Wang.
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Table of Contents
ContentsPrologue: Meaningful Silences,
1. The Mansfieldian Moment,
2. The Great Compromises of the Constitutional Convention,
3. Protesting and Ratifying Slavery's Constitution,
Epilogue: Whose Constitution? Toward Civil War,
A Note on Sources,