Excerpted From: Timothy Messer-Kruse, The Carried-off and the Constitution: How British Harboring of Fugitives from American Slavery Led to the Constitution of 1787, 42 Law and History Review 263 (May, 2024) (100 Footnotes) (Full Document)

TimothyMesserKruseWhile American historians largely see slavery as an essential element in the debating and drafting of the Constitution, few have considered slavery's role in bringing about the convention that radically reworked the basic framework of government. This article argues that the Constitutional Convention was the culmination of an international dispute with England over possession of thousands of black refugees whom Americans claimed as their property. Various states' attempts to recapture escapees from slavery spiraled into an issue that imperiled Americans' ability to colonize their western frontier and to trade with the British empire. American state legislatures' attempts to pressure Great Britain to return their citizens' human property revealed structural deficiencies in the federal government that could not be patched by simply revising the existing charter. More than any other crisis of the 1780s, the struggle of many patriots to regain possession of the thousands of formerly enslaved African Americans set in motion a train of events that led to the scrapping of the confederation and its replacement with a centralized federal government.

The need for a new Constitution has been ascribed to Congress' difficulty raising taxes, trade disputes among states, the insurmountable barrier of unanimity to amend the Confederation Articles, the British refusal to abandon their western forts, British imposition of crippling trade restrictions, and the specter of armed veterans in Massachusetts demanding a moratorium on debts. These were certainly troubling problems but most of them did not require for their solution a sweeping new apportionment of powers between the states and the federal government. Repeatedly in this period, knowledgeable American politicians expressed confidence and optimism that the issues of taxes, of interstate trade squabbles, of amendment, and even of domestic insurrection, could be settled within the terms of the Articles of Confederation. Only two of these looming issues were widely recognized as being beyond the scope of that charter and the existing powers of the Congress to solve. Because they involved enforcement of an international treaty over intransigent state governments, and while treaties were defined in the Articles as supreme law but Congress possessed few coercive powers over the states, only the questions of British trade and European powers' control of western territories exposed an impasse that necessitated granting the federal government radically new powers.

It was well known to constitutional historians a century ago that the federal government under the Articles failed, not because it was difficult to pass legislation (as every act required a supermajority), but for lack of power to enforce the will of Congress once a policy was determined. As Max Ferrand explained in 1913, “when a decision had been reached there was nothing to compel the states to obedience.” In other words, the existing blueprint of government didn't lack enumerated powers, it lacked power. This observation might have answered why the Articles were ultimately superseded by the Constitution but did not explain when. At what point was the weakness of congressional power sufficiently demonstrated to compel most states to move to revise their basic structure of government?

Among all the issues that faced the nation in the so-called “critical period” from the end of the war to the ratification of the new constitution, one stands out for the passions it evoked, its intransigence, and its role in exposing the structural flaws in the existing government's power. It also happens to be, perhaps, the issue most ignored by chroniclers of the road to the Constitutional Convention. This issue was the fervent American demand that the British return escaped slaves to their American owners.

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America's new Constitution had just been ratified when Lord Grenville, whose London office oversaw “colonial affairs,” dispatched a special emissary to New York to discuss future commercial agreements. Lieutenant-Colonel George Beckwith arrived in New York as the federal government was just preparing for its first meeting of Congress. Beckwith knew the city well as he had served under General Carleton during his time preparing for the evacuation of soldiers, loyalists, and refugees from American slavery from the city.

Beckwith was unable to meet with America's new Secretary of State because Jefferson had yet to return from France, so instead he arranged a series of meetings with Alexander Hamilton, the Secretary of the Treasury. Hamilton assured Beckwith that he spoke for “the most enlightened men in this country” and that his views were also “those of General Washington ... as well as of a great majority in the Senate.” More importantly, Hamilton emphasized that he spoke for a central government that now had the power to enforce its will upon the states and was a reliable partner to any agreements the two countries would reach. “We have lately established a Government upon principles, that in my opinion render it safe for any nation to enter into Treaties with us ... which has not hitherto been the case,” he boasted.

The two men spoke extensively of trade policies and the future of their respective “empires” but Hamilton soon cautioned the English emissary that there were still outstanding issues to be settled from the old Treaty of Peace. “There are two points only that occur to me as being complained of,” Hamilton said. He then explained that the laws confiscating English property and disadvantaging English creditors were effectively “done away by the present Government” with the “formation and establishment of its Judiciary branch” and soon the organization of a “supreme court very shortly.”

Having established those British complaints would soon be swept away by the powers of the new federal system, Hamilton then pivoted to America's complaints, of which there were only two. “On our side there are also two points still unadjusted, the Western Forts and the Negroes ...” Hamilton then confided in Beckwith that personally he approved of General Carleton's policy, saying “To have given up these men to their masters, after the assurance of protection held out to them, was impossible ...” The official summary of Beckwith's memoranda of these discussions, prepared for dispatch to London, omitted Hamilton's support of London's sanctuary policy and simply read: “That a government is now established in the United States with which it is safe to enter into treaties” and that the conversation added some other “considerations respecting the confiscation and other Acts, the cession of the western posts, and the giving up of negroes ...”

Hamilton's frank conversation with Beckwith revealed that in the mind of this leading Federalist, the strong central government had all along been propelled by the necessity for this young aspiring nation to play the great game of empire by upholding its agreements. Congress' failure and paralysis in enforcing the terms of its most important international agreement--the one that recognized its sovereignty and independence, secured its trade, and opened the door to the conquest of a vast hinterland--had been brightly illuminated by the tangle of patriot demands for the reenslavement of fugitives from slavery, British refusals to hand over men and women under their protection, and popular retaliation against English Tories and merchants in response. The road from the Articles to the Constitution was built, like so much else in early America, by the sweat and labor of black people struggling for their freedom and patriots trying to confine them. The men, women, and children who secured their liberty from American slavery by sailing away on British ships were instrumental in forcing the founders to realize one of the holes in their blueprint of government that could not be fixed without starting over.

Timothy Messer-Kruse is a professor of Cultural Studies in the School of Cultural and Critical Studies at Bowling Green State University in Ohio.