Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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FUGITIVE SLAVE LAWS

II.98.1

FUGITIVE SLAVE LAWS (IN U.S. HISTORY). Before the American revolution the black race in the colonies had generally been impressed with the artificial character, in the eye of the law, of property. (See SLAVERY.) Within his own colony an owner had the same right to reclaim his slave as to reclaim any other stolen, lost or estray property; but the reclamation of a slave who had escaped to another colony depended upon the intercolonial comity which permitted it. Nor was there any legal authority to reclaim fugitive slaves under the articles of confederation, except that which was, perhaps, implied in confining to "the free inhabitants of these states" the enjoyment of "the privileges and immunities of free citizens in the several states." Reclamations of fugitive slaves, though rare, sometimes occurred, but were still dependent on interstate comity. In the formation of the constitution by the convention of 1787, it seems to have been an implied part of one of the compromises (see COMPROMISES, III) that a provision should be inserted for the reclamation of fugitive slaves. "By this settlement" [compromise], said C. C. Pinckney, in the South Carolina convention, "we have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before. In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could; but, on the whole, I do not think them bad." The result was the fugitive slave provision. (See CONSTITUTION, Art. IV., §2, ¶ 3.) In this, slaves were indirectly called "persons held to service or labor in one state, under the law thereof." The provision was mandatory, but upon no particular officer or branch of the government; it simply directed that the fugitive "shall be delivered up, on claim of the party to whom such service or labor may be due." If this was only a direction to the states , it is evident that the only recourse for relief under it was to state courts; and that, if a state should refuse or neglect to execute and obey this provision of the constitution, there was no remedy. Such has steadily been held as the construction of the kindred provision, as to extradition of criminals, immediately preceding the fugitive slave provision, and couched in much the same language. Though the surrender of criminals has sometimes been refused, as by Massachusetts in the Kimpton case in August, 1878, no further remedy has been sought for, nor has congress ever undertaken to pass any general interstate extradition law. The only real argument in favor of the power and duty of congress to pass a general fugitive slave law, was the absence of any such common self-interest to induce the northern states to execute faithfully the fugitive slave provision of the constitution, as that which was usually certain to induce all the states to surrender fugitive criminals—I. The first fugitive slave law, entitled "An act respecting fugitives from justice, and persons escaping from the service of their masters," originated in the senate, passed the house without debate by a vote of 48 to 7, and was approved by President Washington, Feb. 12, 1793. It was in four sections. The first two, applying to fugitive criminals, merely specified the manner in which the demand was to be made upon the governor, and made no attempt to enforce a surrender of the criminal, if it should be refused. An abstract of the last two sections, respecting fugitives from labor, is as follows: 3, the owner, his agent or attorney, was empowered to seize his fugitive slave, take him before a circuit of district court of the United States, or before any magistrate of the county, city or town corporate wherein the arrest should be made, and make proof by oral testimony or affidavit of his ownership, and the certificate thereof by the judge or magistrate was to be sufficient warrant for the removal of the fugitive to the state or territory from which he had fled; 4, rescue, concealment or obstructing the arrest of a fugitive slave were made offenses liable to a fine of $500.

II.98.2

—Before 1815 the increase of the domestic slave trade from the border states to the extreme south had brought out complaints of the kidnapping of free blacks in the border free states, under pretense that they were fugitive slaves. In 1817, a senate committee reported a bill to modify the law, but it was never considered. The following year the Baltimore Quakers renewed the question by a petition to congress for some security to free blacks against kidnapping. On the other hand, the border slave states complained of the increased insecurity of slave property, and a member of the house from Virginia introduced a bill to increase the efficiency of the fugitive slave law. It was intended to enable the claimant to prove his title before a judge of his own state, and thus to become entitled to an executive demand upon the governor of the state in which the fugitive had taken refuge; and to any writ ofhabeas corpusit was to be a sufficient return that the prisoner waw held under the provisions of this act. Efforts to amend the bill by securing the full benefit of the writ ofhabeas corpusto the fugitive, and by making the state courts of the state in which the arrest was made the arbiter of title, were voted down, and the bill was carried, Jan. 30, 1818, by a vote of 84 to 69. In the senate it was passed, March 12, with amendments requiring other proofs than the claimant's affidavit and limiting the existence of the act of four years. April 10 the house refused to consider the bill further. The great objection to the act of 1793 was its attempt to impose service, under the act, upon magistrates who were officials of the states, not of the federal government, and who could not therefore properly be called upon to execute federal laws. The question was brought before the supreme court(in the case of Prigg vs. Pennsylvania, citied below), as follows. The state of Pennsylvania had passed an act providing a mode for the rendition of fugitive slaves to their owners by state authorities and making the seizure of fugitive slaves in any other way a felony. One Prigg, as agent of a Maryland slave owner, found a fugitive slave in Pennsylvania, and, when the local magistrate refused to award her to him, carried her off to Maryland vi et armis. For this he was indicated in Pennsylvania, and the two states amicably agreed that judgment should be entered against him, in order that an appeal might be taken to the supreme court. The supreme court, as its opinion was given by Story, held that the Pennsylvania statute was unconstitutional; that the power to legislate on this subject was exclusively in congress; but that the duty of executing federal laws could not be imposed upon state magistrates or officers. Taney, dissenting in part, held that the constitution was a part, of the supreme law of every state, which the state could enforce, but could not abrogate or alter; and that the right of a master to seize his fugitive slave was thus a part of the organic law of each state, which the state could enforce, but could not abrogate or alter. The doubts expressed by the court as to the duty of state magistrates caused the passage by various northern legislatures of acts guarding or prohibiting the execution of the fugitive slave law by state magistrates. (See PERSONAL LIBERTY LAWS.)

II.98.3

—II. The passage of a more effective fugitive slave law was one of the essential features of the compromise of 1850 (See COMPROMISES, V. .)., and formed a part of the original "omnibus bill." As approved by President Fillmore, Sept. 18,1850, it consisted of ten sections, an abstract of which is as follows' 1, the powers of judges under the act of 1793 were now given to United States commissioners; 2, the territorial courts were also to have the power of appointing such commissioners; 3, all United States courts were so to enlarge the number of commissioners as to give facilities for the arrest of fugitive slaves; 4, commissioners were to have concurrent jurisdiction with United States judges in giving certificates to claimants and ordering the removal of fugitive slaves; 5, United States marshals and deputies were required to execute writs under the act, the penalty for refusal being a fine of $1,000, the marshal being further liable on his bond for the full value of and slave escaping from his custody "with or without the assent" of the marshal or his deputies; the commissioners, or officers appointed by them, were empowered to call the bystanders to help execute writs; and all good citizens were required to aid and assist when required; 6, on affidavit before any officer authorized to administer an oath. United States courts or commissioners were to give the claimant a certificate and authority to remove his fugitive slave whence he had escaped; in no case was the testimony of the fugitive to be admitted in evidence; and the certificate, with the seal of the court, was to be conclusive evidence of the claimant's title, thus cutting off any real benefit of the writ of habeas corpus from the fugitive; 7, imprisonment for six months, a fine of $1,000, and civil damages of $1,000, and to the claimant, were to be the punishment for obstructing an arrest, attempting a rescue, or harboring a fugitive after notice; 8, commissioners were to be paid fees of $10 when a certificate was granted, and of $5 when their decision was in favour of the alleged fugitive; fees of other officers were to follow the rules of the court; 9, on affidavit by the claimant that he apprehended a rescue, the marshal was not to surrender the fugitive to the claimant at once, but was first to take him to the state whence he had fled, employing any assistance necessary to overcome the rescuing force; 10, any claimant, by affidavit before any court of record in his own state or territory, might obtain a record with a general description of the fugitive, and an authenticated copy of such record was to be conclusive evidence, on proof of the identity of the fugitive, for issuing a certificate in any state or territory to which the slave had fled.

II.98.4

—An examination of this long and horribly minute act will show the futility of the most taking and popular criticism upon it, that it employed all the force of the United States in "slave catching". This was just what the act was bound to do, if it attempted to enforce the fugitive slave provision of the constitution, and yet avoid the imposition of the duty upon state officials. Nor is there any more force in the objection to the difference in the commissioner's fee for detaining and for releasing a fugitive: the difference in fees was the price of the evident difference in the labor involved in the two cases: and no accusation was ever brought against a commissioner of having sold his honor for the additional $5.

II.98.5

—But the refusal of a jury trial to the alleged fugitive, for the ascertainment of his identity, was a defect so fatal as to make the law seem not only unconstitutional, but absolutely inhuman. If the alleged fugitive were a slave(i.e., property), his value was more than $20 above which limit the constitution(amendment VII.) guarantees a jury trial for title; if he were a free man, his right to a jury trial in a case affecting his life or liberty dates from magna charta, and is among the rights reserved, by amendment X., from the power of both the United states and the states "to the people"; and in denying a jury trial in either case congress seems to have been an inexcusable trespasser. Webster proposed, and Dayton, of New Jersey, offered, an amendment providing for a jury trial; but this was voted down, on the ground that a fugitive slave was property, and yet that the owner's title was not disputed or in question, so as to require a jury trial. But this was evidently begging the question, for 1, an alleged fugitive, if a free man, evidently had the right to a jury trial to decide whether he was property or a person; and 2, no federal law could make the affidavit of a citizen of one state so "conclusive" as to exclude entirely the affidavit of a citizen of another state, as any alleged fugitive might possibly be. Against this evil feature of the act many northern legislatures promptly guarded by passing new or stronger "personal liberty laws." and thus practically "nullifying" it. (See NULLIFICATION, PERSONAL LIBERTY LAWS.)

II.98.6

—The passage of the act gave a sudden and great impetus to the search for fugitive slaves in the north, which was accompanied by various revolting circumstances, brutality in the captors, bloodshed by the captors or captured, or both, and attempted suicide to avoid arrest. From many localities in the north, persons who had long been residents were suddenly seized and taken south as fugitive slaves; and these latter arrests were more efficacious than the former in rousing northern opposition to the law, for they seemed to show that not merely the execution but the principle of the law was unjust and illegal. Margaret Garner's attempted murder of her children, in Ohio, to save them from slavery, and Anthony Burns' arrest in Boston, were the cases which made most noise at the time.

II.98.7

—The political consequences of the passage of the fugitive slave law of 1850 were not only the revival and enforcement of the personal liberty laws, but the demand, first by the free-soil party, and then by the republican party, for the repeal of the fugitive slave law, which the south considered irrepealable, as part of a compromise. The success of the republican party, in 1860, by the vote of the north, was therefore constructed by secessionists at the south as a final refusal by the north to enforce the compromise of 1850, and was the principal excuse for secession.

II.98.8

—The fugitive slave law was not finally repealed until June 28, 1864. (See COMPROMISES V., VI.: SLAVERY; REPUBLICAN PARTY; ABOLITION III. SECESSION.)—(I.) See 4 Elliot's Debates, 286; 1 Benton's Debates of Congress, 384,417; 1 von Holst's United States,310; Prigg vs. Pennsylvania, 16 Pet., 539; 6 Benton's Debates of Congress, 43, 107, 177; the act of Feb.12, 1793, is in 1 Stat. at Large, 302. (II.) See 16 Benton's Debates of Congress, 593; 2 Benton's Thirty Years' View, 773; 5 Stryker's American Register,547, 550; Buchanan's Administration, 16; Tyler's Life of Taney, 282, 392; Ableman vs. Booth, 21 How., 506; 2 Wilson's Rise and Fall of the Slave power, 391-337, 435; Schuckers' Life of Chase, 123, 171; 2 Webster's Works, 558, and 5:354; Moses Stuart's Conscience and the Constitution; Still's Underground Rail road, 348; Steven's History of Anthony Burns; 1 Greeley's American Conflict, 210; 2 A. H. Stephens' War Between the States, 674 (in the Declaration of South Carolina); Hamilton's Memoir of Rantoul, 729; authorities under articles above referred to; the fugitive slave law is in 9 Stat. at Large, 462: the act of June 28, 1864, is in 13 Stat. at Large (38th Cong.),410.

ALEXANDER JOHNSTON.

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