by Jodi L. Miller
The Declaration of Independence, written by Thomas Jefferson in 1776, states that “all men are created equal” and “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
At the time these words were written, more than 500,000 enslaved people were part of what would become the United States of America. The institution of slavery had been part of the fabric of the colonies for more than 150 years, since 1619 when the first Africans were forcibly brought to this country. Jefferson, in fact, owned more than 600 slaves on his Virginia plantation. So, where did Jefferson’s words leave enslaved people as the new country was forging its identity—one that supposedly valued liberty and freedom above all else?
The missing paragraph
The Declaration of Independence was essentially a list of grievances from the colonists to the King of England. In the document’s original draft, Jefferson included a paragraph about slavery, blaming the King for bringing the institution to the colonies. The deleted passage, in part, stated:
“He [King George] has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere or to incur miserable death in their transportation thither [there].”
Why didn’t the passage make it into the final version of the Declaration of Independence? According to Sean Harvey, a history professor at Seton Hall University who teaches courses on colonial America, the American Revolution, and the Civil War, it was cut because blaming the British King for American slavery was unconvincing.
“Slavery was legal in every British colony and colonists profited from slavery, none more than Virginians,” Professor Harvey says.
Another part of the lost passage accused the King of “suppressing every legislative attempt to prohibit or restrain this execrable [appalling] commerce.” Professor Harvey notes that the line was partially true in that King George did prevent Virginia from effectively banning the slave trade in the colony. However, it wasn’t the whole story.
“Virginia’s effort to ban the slave trade was also in the economic interest of elite Virginian enslavers who expected to be able to sell unwanted enslaved people from a naturally growing population to ambitious farmers in the west,” Professor Harvey says.
Professor Harvey also notes that another reason for deleting the passage was to maintain unity among the colonies.
“Drawing attention to the slave trade was potentially divisive,” he says. “Georgia and especially South Carolina—the only one of the thirteen colonies with an enslaved majority—sought to continue to import as many enslaved people as possible and would not consent to any criticism of the Atlantic slave trade. People in Northern colonies, on the other hand, increasingly criticized the Atlantic slave trade; but also knew that those colonies [the North] had played a leading role in, and profited from, that brutal commerce.”
Indeed, according to the Library of Congress, in his “Notes of Proceedings in Congress,” Jefferson himself wrote, “The clause too, reprobating the enslaving of the inhabitants of Africa, was struck out in complaisance to South Carolina & Georgia, who had never attempted to restrain the importation of slaves, and who on the contrary still wished to continue it. Our Northern brethren also I believe felt a little tender under those censures; for tho’ their people have very few slaves themselves, yet they had been pretty considerable carriers of them to others.”
Willing to fight for their freedom
The deleted paragraph of the Declaration of Independence also contained an accusation that the King was “now exciting those very people [the enslaved] to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people on whom he has obtruded [imposed] them: thus paying off former crimes committed against the Liberties of one people, with crimes which he urges them to commit against the lives of another.” These lines refer to the Dunmore Proclamation, a 1775 decree made by the Earl of Dunmore, who served as the Royal Governor of the Virginia colony at the time. The proclamation offered freedom to enslaved men who would take up arms against their enslavers [the colonists] by joining the British army.
According to some estimates, anywhere between 800 and 2,000 enslaved men answered that initial call and formed what would become known as “Lord Dunmore’s Ethiopian Regiment,” with the words “Liberty to Slaves” featured on their uniforms. Although, the regiment suffered an outbreak of smallpox, the British sailed for England in 1776 with approximately 300 formerly enslaved men on board. Estimates are that approximately 100,000 enslaved men escaped slavery by fighting for the British throughout the Revolutionary War.
In an op-ed for The Washington Post, historian Woody Holton wrote that the British army kept their promise to the formerly enslaved.
“Starting in 1783, … more than 3,000 formerly enslaved Blacks resettled in Nova Scotia,” Professor Holton wrote. “Many of the freed people found work in the province’s thriving logging industry, but they suffered continuous abuses from whites, and in 1792, more than 1,200 of them accepted a British offer to resettle once again, this time in the new British colony of Sierra Leone on the West African coast.”
A British case turns the tide of revolution
In 1772, an important English lawsuit—Somerset v. Stewart may have turned the tide of the American Revolution. The case involved James Somerset, an enslaved man who was purchased in Boston by Charles Stewart. In 1769, Stewart returned to England, bringing Somerset with him. In 1771, Somerset escaped and was recaptured. Stewart had Somerset imprisoned on a ship bound for Jamaica, ordering him to be sold to a plantation there. Somerset had been baptized while in England and his godparents intervened on his behalf bringing the case to the English Court of King’s bench, which was asked to determine whether an enslaved person on English soil was protected from being forcibly removed from the country.
In 1772, William Murray, also known as Lord Mansfield, who presided over the case, issued a ruling stating, “The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law [meaning authorized by the state] …” Essentially, Lord Mansfield said that Somerset had to go free because England had passed no statute (positive law) authorizing slavery. The decision caused some confusion as to whether it had abolished slavery in England. In a later 1785 case, Lord Mansfield said that his decision in Somerset only decided that a slave could not be forcibly removed from England without consent. England would formally abolish slavery in 1834 with the Slavery Abolition Act.
The Somerset decision was felt in the colonies. Although Professor Harvey doesn’t believe the decision was a major cause of the American Revolution, he says it provides important context for the transformation of the colonists from just resisting Parliament’s authority into a movement for independence, especially in the southern colonies, some of which were reluctant to take up arms against England.
“On one hand, the very fact that Lord Mansfield’s ruling applied specifically to England and did nothing to alter the legal status of slavery in the colonies added yet another example of the British government insisting on the legal difference between England and the colonies, which angered many patriots,” Professor Harvey says. “On the other hand, the perceived significance of the decision far outstripped the narrowness of the ruling. Especially important, knowledge of the ruling circulated among the enslaved in North America, inspiring efforts of some to free themselves and reach England, which the Somerset decision legally defined as a place of freedom.”
Professor Harvey says that the Somerset decision may also have contributed to a wave of efforts by enslaved people to organize collective resistance.
“Enslaved people recognized that colonial rulers were divided—opponents of imperial [British] authority versus its supporters—and they associated colonists with enslavement and the royal government with the possibility of freedom,” he says. “Those dynamics came to a head in the fevered response to Dunmore’s Proclamation in late 1775. It pushed many Virginians to support independence.”
Making compromises
In addition to being an influence on the Revolutionary War, slavery played a part in the country’s founding documents—not just the Declaration of Independence, but also the U.S. Constitution. The issue was very much present at the Constitutional Convention, held in Philadelphia in 1787.
The word “slavery” did not appear in the U.S. Constitution until the 13th Amendment, which abolished the institution, was ratified in December 1865. In 1787, when the Founding Fathers gathered at the Constitutional Convention in Philadelphia to re-write the Articles of Confederation, which would eventually produce the U.S. Constitution, they deliberately left out the word.
In fact, according to Constitutional Convention records, James Madison, a slaveholder himself, said it would be “wrong to admit in the Constitution the idea that there could be property in men.” While the word may not appear in what the Founding Fathers wrote, slavery is clearly referred to indirectly in the U.S. Constitution in at least three places.
The first and most hotly debated is the three-fifths clause (Article I, Section 2). It states, “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” The “other persons” referred to are enslaved persons.
With this section, the framers were hashing out how representation in the U.S. House of Representatives would be determined and decided it would be by population. The higher population a state had, the more representation, and therefore, the more power it would have in the House. The South, wanting to increase its population, advocated for counting enslaved people among its population numbers. The North only wanted to count free persons or citizens. The opposing views created a heated debate.
Professor Harvey explains that the three-fifths ratio compromise was one that James Madison had proposed years earlier when the Articles of Confederation were written. The proposal resurfaced at the Convention in Philadelphia. Essentially, Professor Harvey says, it was supposed to balance the interests of states with large numbers of enslaved people and states with much smaller numbers of enslaved people.
“Ultimately, fear of the lower Southern states refusing to join the union under the Constitution convinced Northern delegates to agree to the three-fifths ratio,” Professor Harvey says.
In Article 1, Section 9 of the U.S. Constitution, the framers tackled the Atlantic slave trade, though those words are never used. Essentially, it says that the federal government would not interfere in the slave trade until 1808.
In a 2015 op-ed that appeared in The New York Times, Sean Wilentz, a history professor at Princeton University, noted that the Southern states at the Constitutional Convention wanted slavery enshrined in the U.S. Constitution as a national institution. After much debate, the delegates compromised, agreeing to leave the issue up to the states.
“The proslavery delegates desperately wanted the Constitution to bar the national government from regulating the Atlantic slave trade, believing it would be an enormous blow against slavery,” Professor Wilentz wrote. “The first draft of the Constitution acceded to their bluster. But antislavery Northerners erupted in protest and proposed that the new government have the power not only to regulate the trade but also to abolish it after 1800. The proslavery men, over Madison’s furious objection, got the date extended to 1808.”
Finally, Article 4, Section 2 of the U.S. Constitution is referred to as the fugitive slave clause. Again, the text never uses the word slave. It states, “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.”
According to Professor Wilentz, “The clause was a measure of slavery’s defensiveness, prompted by then landmark Northern gradual emancipation laws, and was so passively worded that enforcement was left to nobody, certainly not the federal government. Antislavery Northerners further refined the wording to ensure it did not recognize slaves as property.”
In the end, the Founding Fathers and the framers of the U.S. Constitution prioritized the unity of the country over the abolishment of slavery. The compromises made in 1787, however, only delayed the reckoning over the institution for another 73 years.
Discussion Questions
- Why do you think the framers wanted to keep the word “slavery” out of the U.S. Constitution? Explain your answer.
- What do you think about the compromises made on slavery at the Constitutional Convention?
- Read the sidebar No Slavery in the North—A Morally Satisfying Myth. What do you think about New Jersey’s relationship with slavery? Did it surprise you? Why do you think it’s not widely known that there were enslaved in the North? Explain your answer.
BONUS CONTENT: No Slavery in the North—A Morally Satisfying Myth
For the most part, slavery is thought of as a Southern institution, with the North distancing itself from culpability or complicity. The truth is that all states benefited in various ways from the institution of slavery.
“For northern trading hubs like New York and Rhode Island, the institution of slavery directly influenced their economies and the wealth and power of many of their leading residents,” according to the American Civil War Museum.
Anne Farrow, co-author of the book Complicity: How the North Promoted, Prolonged, and Profited from Slavery, told National Public Radio (NPR) that at its height, the enslaved population in the North reached more than 40,000 and that the port of Rhode Island was the epicenter of the slave trade in the North.
“Of the documented slaving voyages that left from the American Colonies and went to Africa, Rhode Islanders were at the helm of almost 90% of them,” Farrow told NPR. “Coastal Rhode Island—Bristol, Newport, the cities in between—were so heavily involved in the slaving trade they were also bringing many people back to Rhode Island to do work.”
Believing the myth
Sean Harvey, a history professor at Seton Hall University who teaches courses on colonial America, the American Revolution and the Civil War, says “Most Americans continue to think of enslavement as a ‘Southern’ practice. Yet, slavery was legally established in each of ‘the thirteen colonies’ and, though at the time of the Constitutional Convention only about 4% of the population of the states north of Maryland was enslaved, that number was much higher in specific regions.”
One of those regions, Professor Harvey notes, was New York City and the surrounding areas, including northeastern New Jersey. Approximately 15% of the population in that region was enslaved. According to U.S. Census numbers, New Jersey reached its highest number of enslaved people—12,422—in 1800, with the most—2,825—in Bergen County.
New Jersey was, in fact, the last Northern state to abolish slavery. New Jersey’s gradual emancipation law stipulated “Every child born of a slave…after the fourth of July (1804) … shall be free but shall remain the servant of the owner of his or her mother… until the age of 21 for women and 25 for men.” The law, passed on February 15, 1804, made no provision to free those already enslaved. According to the Equal Justice Initiative, a nonprofit organization that provides representation to the wrongly convicted, the New Jersey law actually delayed the end of slavery in the state for decades.
“After the American Revolution, enslavement gradually disappeared from states north of Maryland,” Professor Harvey says, “and nowhere more gradually than in New Jersey, where some people remained legally enslaved until the eve of the Civil War.”
New Jersey also initially rejected ratification of the 13th Amendment in 1865. It was the last Northern state to ratify the amendment on January 23, 1886.
“Over the first few decades of the 19th century, changing economic interests, religious ideas, and activism fueled the growth of antislavery, not necessarily abolitionist, sentiment, in the northern states,” Professor Harvey says. “In the aftermath of the Civil War, many of those outside the South celebrated the role of ancestors and others in opposing the expansion of enslavement—casting enslavement itself as Southern. Ultimately, it was, and remains, a morally satisfying myth for people outside the South,” he said. —Jodi L. Miller
Glossary Words
emancipation — the release from slavery.
ratified — approved or endorsed.
statute — a particular law established by a legislative branch of government.
unalienable—not transferable to another or not capable of being taken away or denied.
This article originally appeared in Respect’s Special Issue: Challenging Racism from Past to Present.