Fugitive Slaves (1619-1865)

In 1659 the Dutch had occasion to ask the same favor of Maryland. Whether there had been trouble between the colonies since the earlier letter we do not know, but the spirit of the communication was quite different. Instead of assurances of good will, and expressions of a belief in the certainty of peaceful return, the Dutch threatened, if their servants were not secured to them, "to publish free liberty, access and recess to all planters, servants, negroes, fugitives, and runaways which may go into New Netherland."39

Trouble was also constantly arising between the French and English, or French and Dutch, in regard to the many runaways who fled from the Eastern colonies northward to Canada. In 1750 there was a dispute about a certain negro belonging to the English, but at that time in possession of the Sieur de la Corne St. Luc; and, in a letter to a friend, one of the officers of the colony makes the following explanation concerning them: "In regard to the negro in possession of Sieur de la Corne St. Luc I thought proper not to send him back every negro being a slave wherever he be. Besides, I am only doing what the English did in 1747. Ensign de Malbronne on board Le Screux had a negro servant who was at first taken from him; I took pains to reclaim him, but the English refused to surrender him on ground as above."40

§ 12. Relations with the mother country.—With only one country across the sea was any question of fugitives likely to arise. In England white slavery had long since died out, except as a punishment for crime; villeinage ceased about the time the colonies were settled. But the status of black slaves who were taken from the colonies to England was in practice unchanged.

The principle thus apparently established by custom was overthrown by a succession of legal decisions, culminating in the famous Somersett Case. It was first decided by Thomas Grahame, judge in the Admiralty Court, Glasgow, that a certain negro who had been brought into Great Britain must be liberated, on the ground that a guiltless human being taken into that country must be free.41 In 1762 occurred another similar case. A bill had been filed in equity by an administrator to recover money given by his intestate to a negro brought to England as a slave. The suit was dismissed by Lord Northington, who said that as soon as a man set foot on English ground he was free.42

The Somersett case came ten years later. The circumstances were as follows. A Mr. Stewart, accompanied by his slave Somersett, left Boston on the 1st of October, 1769, and went to London, where he kept his slave until October 1, 1771. Then Somersett ran away, but his owner soon secured him and had him placed on board a vessel bound for Jamaica, probably with the intention of selling him as a slave. A writ of habeas corpus was then served upon the captain of the ship, and on the hearing Lord Mansfield decided that Somersett must be discharged. In England, he said, slavery could exist only by positive law; and in default of such law there was no legal machinery for depriving a man of his liberty on the ground that he was a slave. The importance of the case for the colonies lay not in the assertion of the principle that slavery depended on positive law, for the American statute-books were full of positive law on slavery; the precedent thus established determined the future course of England against the delivery of fugitives, whether from her colonies or from other countries.43

§ 13. International regulations under the Articles of Confederation (1781-1788).—When, on March 1, 1781, the Articles of Confederation went into effect, the only action taken by the United States on the subject of fugitives had been the negotiation of a treaty with the Delaware Indians, August 7, 1778, by which the parties bound themselves not "to protect in their respective States criminal fugitives, servants, or slaves, but the same to apprehend, secure, and deliver."44 In seven of the eight other treaties negotiated with Indian tribes from 1784 to 1786, clauses were introduced for the return of black prisoners, or of "negroes and other property."45 The States affected were chiefly Southern; but the article on the same subject in the Treaty of Peace in 1782 and 1783, was intended as much to protect the slaveholders of New York as those of Virginia. It was distinctly agreed that the British should not carry away "any negroes or other property."46 The failure to abide by this agreement led to reclamation by the American government, but no indemnity was ever secured.47

English Law. Northwest Ordinance.

§ 14. Ordinance for the Northwest Territory.—Since all the thirteen colonies recognized slavery, the Revolution made no difference in any previous intercolonial practice as to the delivery of slaves; in framing the Articles of Confederation no clause on the subject was thought necessary. The precedent of the New England Confederation was forgotten or ignored. But the action of the States of Vermont, Pennsylvania, Massachusetts, Connecticut, and Rhode Island, in taking steps toward immediate or gradual emancipation, from 1777 to 1784, brought up a new question,—the status of fugitives in free regions. Before the change of conditions in the States was completely understood, the same question had arisen in the Western territories. Jefferson, in 1784, proposed to draw a north and south line through the mouth of the Kanawha, west of which there should be no slavery after 1800.48 The next year a Northern man proposed a similar limitation in the territory north of the Ohio, and added a clause for the return of fugitive slaves to the original slave States.49 Neither of these two propositions was carried, but the principles both of exclusion of slavery and of the return of fugitives appear in the Northwest Ordinance of 1787, the first legislation by Congress looking toward the surrender of fugitives by any Territory or State. In providing a government for the new Territory, it was enacted, July 13, 1787, that "any person escaping into the same 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."50 The fugitive clause seems to have provoked no discussion, but to have been accepted as a reasonable condition of the limitation of slavery.

Fugitive Question in Constitutional Conventions.

§ 15. The Fugitive question in the Constitutional Conventions.—While the Northwest Ordinance was passing through Congress, the Philadelphia Convention was framing a new Constitution, and the return of fugitives was again eagerly insisted upon by the slave States. The necessity of some positive stipulation that fugitives should be returned was felt to be even more necessary in a Constitution meant permanently to bind together a free and a slaveholding section. The only debate of which we have a record occurred August 28, 1787. Mr. Butler of North Carolina pressed the point in behalf of the Southern States. To his first proposition, "that fugitive slaves and servants be delivered up like criminals,"51 Mr. Wilson objected; he saw no reason for obliging the state to arrest fugitives at public expense, while Mr. Sherman saw no more propriety in the public seizing and surrendering a slave or servant than a horse.52 Mr. Butler therefore withdrew the proposition. He soon introduced a more particular provision, which was accepted and inserted in the Constitution, as follows:—

In the various Constitutional Conventions, there was little discussion upon the matter. The Southern States in general considered the clause sufficient to protect their property. General Charles C. Pinckney, in South Carolina, said: "We have obtained the right to recover our slaves in whatever part of America they may take refuge, which is a right we have not had 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."54 In North Carolina, Mr. Iredell explained to the Convention that the Northern delegates, owing to their peculiar scruples on the subject of slavery, did not choose the word "slave" to be mentioned; but since the present laws were so prejudicial to the inhabitants of the Southern States, some such clause was necessary.55 In Virginia, Mr. Grayson discussed the provision giving Congress exclusive legislation over ten square miles surrounding the capital. It seemed to him that, unless the ten miles square be considered a State, "persons bound to labor who shall escape thereto will not be given up. For they are only to be delivered up after they shall have escaped into a State."56 This objection, though perfectly good at the time, was later overcome by the adoption by Congress of the laws of Maryland for the regulation of the District of Columbia, whereby it was made slave territory. Mr. Mason did not think the clause provided sufficiently for the protection of their slaves,57 but Mr. Madison urged its adoption, as a better security than anything they then had.58

In the North, there was apparently no discussion upon this article. Everywhere, however, it was thought that without such a clause the Southern States would not consent to the Union, and, in a spirit of compromise, the provision was accepted.

CHAPTER II. LEGISLATION FROM 1789 TO 1850.

§ 16. Effect of the fugitive slave clause in the Constitution.—By obtaining in the Constitution the insertion of a clause requiring the return of fugitives, a great step for the advancement of the interests of slavery had been taken. For this embodiment in the Constitution ever afterward formed a basis for the slaveholder's argument that the Constitution recognized and defended slavery, and was a justification to Northern men in their support of the later fugitive slave laws.

Although the clause did not in terms apply to the Territories, the Ordinance of 1787 was, on August 7, 1789, confirmed in terms which by implication continued the sixth article, including the rendition of slaves;59 and in the earliest treaties made by the United States with Indian tribes, under the new Constitution, the return of negroes was expressly required.60

The First Fugitive Slave Act.

§ 17. The first Fugitive Slave Act (1793).—For some time, however, the provision of the Constitution remained unexecuted; and it is a striking fact that the call for legislation came not from the South, but from a free State; and that it was provoked, not by fugitive slaves, but by kidnappers. The case seemed to suggest that an act of Congress was necessary, more definite in conditions and detail than the provision of the Constitution.

A free negro named John was seized at Washington, Pennsylvania, in 1791, and taken to Virginia. The Governor of Pennsylvania, at the instigation of the Society for the Abolition of Slavery, asked the return of the three kidnappers; but the Governor of Virginia replied that, since there was no national law touching such a case, he could not carry out the request.61

On the matter being brought to the notice of Congress by the Governor of Pennsylvania,62 a Committee, consisting of Mr. Sedgwick, Mr. Bourne of Massachusetts, and Mr. White, was appointed in the House of Representatives to bring in a bill or bills "providing the means by which persons charged in any State with treason, felony, or other crime, who shall flee from justice, shall, on the demand of the executive authority of the State from which they fled, be delivered up, to be removed to the State having jurisdiction of the crime; also providing the mode by which a person held to service or labor in one State under the laws thereof, escaping into another, shall be delivered up on the claim of the party to whom such service or labor may be due."63

A bill prepared by the House committee, of which Mr. Sedgwick was chairman, was reported, November 15, 1791;64 but for some reason which does not appear, it was dropped, and a Senate committee, of which Calvert was chairman, was appointed, March 30, 1792, "to consider the expediency [of] a bill respecting fugitives from justice and from the service of their masters."65 Nothing was done during this session, and, November 22, 1792, a second Senate committee was appointed, consisting of Johnston, Calvert, and Read,66 and they submitted a bill, December 20, 1792.67 Unfortunately, we have no details of the debate; but on December 28, a third Senate committee was appointed by adding Taylor and Sherman to the committee of November 22, and to them the bill was recommitted with instructions to amend.68 At last, January 3, 1793, the bill was reported in a form not unlike that finally agreed upon.69 Of the amendments offered, the text of only one is preserved in the Journals; it was for the insertion of a less sum than five hundred dollars as the penalty for harboring a fugitive, or resisting his arrest.70 It was not adopted. After two debates, of which we have no record, the bill passed the Senate, January 18.71 In the House it seems to have elicited little discussion, and it passed, February 5, by a vote of 48 to 7.72 The bill became law by the signature of the President, February 12, 1793.73

In thus uniting with the clause providing for the extradition of fugitives from justice one requiring the return of fugitive slaves, Congress was but following examples set in 1643 by the Articles of Confederation,74 and again in 1787 by the Constitution.75 From the scanty records, it is possible to discern only that there was serious difference of opinion in the Senate, and that the measure finally adopted was probably a compromise. In the one amendment stated, there is a faint protest against the harshness of the law.76

§ 18. Discussion of the first act.—The provisions of the act of 1793 are quoted elsewhere;77 their purport was as follows. The act provided at the same time for the recovery of fugitives from justice and from labor; but the alleged criminal was to have a protection through the requirement of a requisition, a protection denied to the man on trial for his liberty only. The act was applicable to fugitive apprentices as well as to slaves, a provision of some importance at the time. In the Northwest Territory there were so-called negro apprentices, who were virtually slaves, and to whom the law applied, since it was in terms extended to all the Territories. Proceedings began with the forcible seizure of the alleged fugitive.

The act, it will be observed, does not admit a trial by jury. It allowed the owner of the slave, his agent or attorney, to seize the fugitive and take him before any judge of a United States Circuit or District Court, or any local magistrate.78 The only requirement for the conviction of the slave was the testimony of his master, or the affidavit of some magistrate in the State from which he came, certifying that such a person had escaped. Hindering arrest or harboring a slave was punishable by a fine of five hundred dollars. The law thus established a system allowing the greatest harshness to the slave and every favor to the master. Even at that time, when persons might still be born slaves in New York and New Jersey, and gradual emancipation had not yet taken full effect in Rhode Island and Connecticut, it was repellent to the popular sense of justice; there were two cases of resistance to the principle of the act before the close of 1793.79

Propositions of 1797 and 1802.

§ 19. Propositions of 1797 and 1802.—Until 1850 no further law upon this subject was passed, but as the provisions of 1793 were found ineffectual, many attempts at amendment were made. In 1796 a troublesome question arose out of the seizure, under the act of 1793, of four negroes who had been manumitted in North Carolina. A retroactive act of that State had declared them slaves again, and they had fled to Philadelphia where they were arrested. January 30, 1797, they petitioned Congress for relief, and after an exciting debate the House by a vote of 50 to 33 refused to receive the petition.80 There is nothing in the scanty records which connects this case or petition with an attempt to amend the act; but it is altogether likely that it occasioned Murray's motion of December 29, 1796, for a committee to report on alterations of the law;81 and that it led to the almost simultaneous appointment of a House committee on January 2,82 and a Senate committee on January 3.83 No report is recorded.

The coming on of difficulties with France, and the Alien and Sedition Acts of 1798, absorbed the popular attention. In 1800 debates on the slave trade and on the reception of petitions from free negroes began. January 22, 1801, a House committee was appointed to report a bill increasing the stringency of the act.84 The bill was reported, but failed to be considered.85 In the next Congress the matter was at last brought to an issue. A committee, of which Nicholson of Maryland was chairman, was appointed, December 11, 1801,86 and reported only seven days later. The report was made a special order for December 21.87 On that day no debate is recorded, but a petition from a free colored soldier of the Revolution was contemptuously denied reception.88 January 14 and 15, the bill was debated freely, and from the debate and sundry amendments the character of the bill may be inferred. Not only harboring, but employing a fugitive, was made punishable; and it was ordained that every black employed must be furnished with an official certificate, and that every person who employed a negro must publish a description of him. Southern members "considered it a great injury to the owners of that species of property, that runaways were employed in the Middle and Northern States, and even assisted in procuring a living. They stated that, when slaves ran away and were not recovered, it excited discontent among the rest. When they were caught and brought home, they informed their comrades how well they were received and assisted, which excited a disposition in others to attempt escaping, and obliged their masters to use greater severity than they otherwise would. It was, they said, even on the score of humanity, good policy in those opposed to slavery to agree to this law."89 This appeal to the humanity of the North failed to produce the requisite effect. On the test vote, January 18, 1802, every Southern member except two voted for the bill, every Northern member except five against it; the vote was 43 to 46, and the bill was laid aside.90

Propositions from 1817 to 1822.

§ 20. Propositions from 1817 to 1822.—For many years the question of amendment of the law does not appear to have come up in Congress. The abolition of the slave trade seems to have absorbed the attention of Congress. Several treaties were negotiated including clauses on the return of fugitives.91 The question was brought up again in 1817 by Pindall of Virginia, who for several years urged a revision of the act. A committee of which he was chairman was appointed, December 15, 1817, and reported a bill, December 29, 1817.92 This third proposition of general amendment led to a debate, January 26 and 29, 1818, in which for the first time we have a record of discussion on the principles of the act and its relations to human freedom. The opposition was based not only on constitutional, but on humanitarian grounds.93 A petition of the Pennsylvania Abolition Society, asking for a milder law than that of 1793, added fuel to the discussion.94

The principle of the bill was that the fugitives should be surrendered by a requisition on the State Executive, as in the case of fugitives from justice: the question of proof was thus left to the courts of the State of the claimant, and there was to be no habeas corpus. The strongest expression of disapproval is found in the speech of Mr. Adams of Massachusetts, who said, "that, in guaranteeing the possession of slaves, the Constitution did not authorize or require the General Government to go as far as the bill proposed to render this bill effectual; that the bill contained provisions dangerous to the liberty and safety of the free people of color in other sections of the Union."95 Mr. Rich of Vermont desired "that it might be so amended as to guard more effectually the rights of free persons of color. This motion he enforced by urging the oppressions to which these persons were now subjected, and the necessity of some regulation on the subject, which he thought might be very properly connected with this bill."96 Mr. Livermore also showed that it exposed the colored men of the North to the peril of being dragged South, and there convicted.97

All these objections, however, were considered of little value by some who, like Smith of Maryland, thought that the subject of the free colored population and their protection should be treated separately, while Mr. Holmes of Massachusetts suggested that the operation of the writ of habeas corpus would render such acts of injustice improbable.98 Mason, of the same State, objected to a trial by jury, which had been suggested, because "juries in Massachusetts would in ninety-nine cases out of one hundred decide in favor of the fugitives, and he did not wish his town [Boston] infected with the runaways of the South."99

Upon two constitutional points the opponents of the bill made a stand. Mr. Sergeant wished to change the bill materially, by making "the judges of the State in which ... slaves are seized the tribunal to decide the fact of slavery, instead of the judges of the State whence the fugitives escaped," but this was negatived by a large majority.100

Another objection to the bill, raised by Mr. Whitman, is noteworthy, since some years later it was the point made most prominent in Judge Story's decision in the Prigg Case.101 Mr. Whitman disapproved of the provision making it a penal offence for a State officer to refuse his assistance in executing the act. He did not believe that Congress had any right to compel State officers to perform this duty; they could do no more than authorize it.102

A vote was taken, January 30, 1818, in the House, and the bill passed by a vote of 84 to 69.103 It was ordered that the title be "An Act to provide for delivering up persons held to labor or service in any of the States or Territories who shall escape into any other State or Territory."

For the first time since 1793, amendment of the act seemed within reach. The Senate showed itself in other questions more inclined than the House to consider the claims of the South; but although Dagget's amendment to strike out the elaborate provision for the return of fugitives by executive requisition was not adopted,104 the Senate first voted to limit the bill to four years,105 and then added other amendments. The result was a non-concurrence with the House, and the failure of the bill,106 March 13-16, 1818. A last attempt to take the bill up failed, April 10, 1818.107

Period of the Missouri Compromise.

§ 21. Period of the Missouri Compromise (1819-1822).—The loss of the bill of 1818 seems not to have discouraged the friends of amendment of the act of 1793. December 17, 1818, a resolution of the Maryland legislature was laid before the House, calling for protection against the citizens of Pennsylvania who harbored or protected fugitives.108 A committee was appointed, January 15, 1819, which promptly reported next day, but the bill was not considered.109

The question of fugitives came incidentally into the great debate of the next session on the admission of Missouri. The region which sought admission as a slave State was flanked on the east by free territory, and was therefore peculiarly difficult to protect. A compromise, which made Missouri a slave State, prohibited slavery in all other territory gained from France north of 36° 30'.110 In the prohibitory clause, however, it was provided "that any persons escaping into the same from whom labor or service is lawfully claimed in any State or Territory of the United States, such fugitive may be reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid."111 During the immigration into Missouri which now began, large numbers of slaveholders took their slaves with them, and on the passage opportunities for escape were often found. In one instance, at least, recorded in Ohio, the public sympathy was so strongly with the fugitives that they were successfully protected from their masters even in court.112

Hardly was the ink dry on the President's signature of the Missouri Compromise (March 15, 1820) before propositions were made in both the House and Senate for new general fugitive slave acts. March 18, a House committee was appointed,113 but no report is recorded. April 3, an inquiry was set on foot into the provisions of a Pennsylvania act hindering the operation of the act of 1793,114 and the Secretary of State submitted a copy of the obnoxious act, April 18. On the day of the Secretary's report a proposition in the Senate to instruct the Judiciary Committee to report a bill was voted down.115 Positive evidence cannot be obtained, but it would seem that a continued effort was made to take advantage of the agitation on the slavery question to secure a new fugitive slave act, as was done in 1850.

One more attempt was made in 1821-22. Mr. Wright presented, December 17, 1821, a resolution of the Maryland General Assembly praying for relief against the abettors of the fugitives in Pennsylvania.116 He desired a special committee, but the question was referred to the Committee on the Judiciary, which reported a bill, January 14, 1822.117 March 27 to April 1, it was debated, but finally tabled.118 The character of the bill does not distinctly appear in the records.

§ 22. Status of the question from 1823 to 1847.—Although no amendment could be procured to the act of 1793, the government of the United States had repeatedly, by diplomatic demands and treaties, undertaken to recover fugitives, or their value, for Southern owners. The first Indian treaty negotiated under the Constitution, that of April 7, 1790, with the Creeks, required the return of negroes held as prisoners of war.119 A similar clause appeared in the treaty made in 1814, at the end of the war with the Creeks, a war which had been provoked in part by their ready reception of fugitives.120 In 1832 the government went so far as to promise to expend seven thousand dollars in paying for "slaves and other property alleged to have been stolen" by the Seminoles.121

With Great Britain, also, the encouragement of fugitives became a subject for negotiation. Much bitterness had been felt at the carrying away by the British, in 1783, of slaves who had taken refuge with them.122 In the treaty of Ghent, therefore, a strict clause forbade the carrying away by the British of "any slaves or other private property."123 A large number of slaves had, during the war, been received on board British vessels, and the humane but specious plea was set up by the British government that the clause applied only to slaves received after the date of the peace. A convention of 1818 submitted the question to the Emperor of Russia, who in 1822 made a decision not wholly favorable to either party; and in 1826,124 by a second convention, Great Britain agreed to pay $1,204,960. This last award was obtained by a Pennsylvanian, Gallatin, acting under the direction of President John Quincy Adams, a citizen of Massachusetts.

Canada and Mexico Places of Refuge.

§ 23. Canada and Mexico places of refuge.—The existence on the northern and southwestern frontiers of regions in which slavery was practically, if not yet legally, extinct, brought about another set of complications. January 24, 1821, a resolution was presented in Congress from the General Assembly of Kentucky, protesting against the kindly reception of fugitives in Canada, and asking for negotiation with Great Britain on the subject.125 In 1826, Mr. Clay, Secretary of State, instructed Mr. Gallatin, United States Minister at the Court of St. James, to propose the "mutual surrender of all persons held to service or labor under the laws of either country who escape into the territory of the other." The British government replied that any such agreement was impossible, and, though a second attempt was made by the United States, it was without success.126

In 1841 Mr. Woodbridge submitted a resolution to the Senate requesting the Committee on Foreign Relations to consider the expediency of entering into an arrangement with Great Britain for the arrest of fugitive slaves charged with crime who might escape over the northern boundary of the United States.127 No action was taken upon the resolution.

The North, however, was not the only region to which slaves were fleeing at this time. Complaint was heard after 1830, that the "freedom and equality granted blacks by the Mexican Constitution and law of 1829, was attracting large numbers of slaves from Louisiana,"128 while in Florida the Seminole trouble was not yet ended.

The last case of this kind occurred just at the outbreak of the Civil War. A slave by the name of Anderson was found one day by Mr. Seneca T. P. Diggs, wandering about his plantation in Howard County, Missouri, without a pass. Mr. Diggs thereupon arrested him as a fugitive slave. In the struggle which followed, the desperate runaway plunged a knife into Mr. Diggs's heart. His captor dead, Anderson hastened on to Canada.129 There he lived a quiet and industrious life until 1860, when the American government called upon Canada, under the extradition treaty, to give up Anderson for punishment. He was arrested, but applied to the Toronto court for a writ of habeas corpus, which was refused. An appeal was immediately made to the Queen's Bench, England, which granted the writ.130 In the trial Anderson was defended by Mr. Gerrit Smith in an eloquent speech, which made a great impression, and was circulated all over the United States.131 The prisoner was discharged on a technical point.132

§ 24. Status of fugitives on the high seas.—When in 1830 gradual emancipation began in the British colonies, and in 1837 slavery ceased to exist there, a new set of complications arose. American vessels carrying slaves from one part of the United States to another were repeatedly driven or conveyed into British ports, and the slaves were there treated as ordinary fugitives, that is, as free men. Thus the Comet in 1830,133 and the Encomium in 1834,134 were cast away on the Bahamas, and the slaves on board could not be recovered. In 1835 the Enterprise was forced by stress of weather to enter a port of the Bermudas,135 and the officers were not permitted by the British authorities to restrain the persons on board.

In none of these three cases were the negroes restored; but in 1840 the British government paid an indemnity for the first two cargoes, on the ground that at the time of the wrecks slavery had not yet been completely extinguished in the colonies.136 No indemnity was allowed in the Enterprise case, and the British government declared that it could assume no responsibility in cases arising since the abolition of slavery.137 Elaborate resolutions introduced by Calhoun, March 4, 1840, and passed, April 15, by a unanimous vote of the Senate, condemned the British principle.138 But when, in the next year, the slaves on board the American ship Creole rose and by force carried her into Nassau,139 the British government refused to return them either as slaves or as murderers.140 Webster, as Secretary of State, strenuously urged the surrender. In 1853, an arbitrator decided that an indemnity must be paid to the American government.141 On the other hand, when, in 1839, a Spanish vessel, L'Amistad, in which the slaves on board had revolted and killed their master, was brought into an American port, the Supreme Court refused to permit their surrender, on the ground that they were free by Spanish law, and therefore could not be tried for murder.142

Kidnapping from 1793-1850. Prigg Case.

§ 25. Kidnapping from 1793 to 1850: Prigg case.—Since slavery was now extinct in the more northern States, their population contained many free negroes. Upon them the eyes of the slave trader were often turned, as easy prey under the law of 1793, and many cases of kidnapping occurred. It was such instances, involving as they did the most manifest injustice and cruelty, that first aroused the sympathies of the people.143 The border States like Pennsylvania were often the scene of these acts. The neighboring white families first began to try to protect the negroes settled near them, and a little later to give a helping hand to those escaping from slavery, and at last, in the underground railroad,144 to complete a systematic organization for the assistance of fugitives. Cases of kidnapping are recorded as early as 1808.145 In 1832 the carrying away of a black woman without process of law not only roused the people of Pennsylvania, but led to a decision which took away much of the force of the act of 1793.

A slave woman, Margaret Morgan, had fled from Maryland to Pennsylvania. Five years later, in 1837, Edward Prigg, an attorney, caused her to be arrested and sent back to her mistress without recourse either to the national or State act on the subject. In the act he disregarded a law of Pennsylvania, brought about in 1826 through the efforts of the Society for the Abolition of Slavery, which forbade the carrying out of the State of any negro with the intention of enslaving him. Accordingly, Mr. Prigg was arrested and convicted in the county court. The Supreme Court of Pennsylvania sustained the decision. Thence the case was taken to the Supreme Court of the United States. There the counsel for Mr. Prigg argued that the statute of Pennsylvania on which the indictment was founded was unconstitutional, since it conflicted with the law of 1793. Justice Story delivered the opinion of the court, and upon this decision all future judgments were based. He announced that the law must be carried out through national authorities alone; the States or State magistrates could not be forced into action.146 After this, many States, seeing the advantage thus given them, passed laws which forbade the officers to aid in a fugitive slave case, and also denied the use of their jails for imprisonment.147 Plainly the Prigg case showed a growing indisposition on the part of the States to carry out the law, however severe its provisions might be; and this disposition to evade its obligations is still further evidenced by the cases given in the next chapter.

§ 26. Necessity of more stringent fugitive slave provisions.—The increasing number of rescues,148 and the occurrence of several cases of resistance, proved conclusively the inadequacy of the law of 1793. After the Prigg decision the provisions made for its execution through national powers were entirely insufficient. Underlying all these acts, the South also could but perceive a sentiment the growth of which, unless checked in some way, would at last permanently injure, if not destroy, their peculiar institution.

§ 27. Action of Congress from 1847 to 1850.—From 1822 until 1848 apparently no effort was made to secure a new law. Then a petition received in 1847 from the Legislature of Kentucky, urging the importance of passing such laws as would enable the citizens of slaveholding States to recover their slaves when they escaped into non-slaveholding States,149 gave rise to a bill from the Committee on the Judiciary.150 The bill provided "for the more effectual execution of the third clause of the second section of the Fourth Article of the Constitution."151 It passed only to the second reading. In 1849, Mr. Meade proposed in the House to instruct the Committee on the Judiciary to report a fugitive slave bill.152 No report apparently was ever made, but this was the last ineffectual proposition. In 1850, a new law was successfully carried in both Houses.

§ 28. Slavery in the District of Columbia.—During this period, from 1840 to 1850, the subject of slavery and fugitives in the District of Columbia began to occasion debate, which was never long silenced. It was notorious that almost under the windows of the Capitol negroes were confined in public jails on the ground that they were fugitives; and that a free negro so confined might be sold for his jail fees. Resolutions for an investigation of the condition of the jails were offered in 1848 by Mr. Giddings;153 and Mr. Hall also introduced more sweeping propositions to repeal all laws of Congress and of Maryland which authorized or required courts, officers, or magistrates to issue process for arrest or commitment to the jail of the District of any fugitive slave.154 Congress, however, was in a mood too conciliatory toward the South to consider these propositions; and no action was taken.

The Second Fugitive Slave Act.

§ 29. The second Fugitive Slave Act (1850).—In the early part of the first session of the Thirty-first Congress, Mr. Mason of Virginia introduced a bill to make the provisions of the fugitive slave act more severe,155 and the bill was reported from the Committee on the Judiciary, January 16, 1850. Two additional amendments were soon offered by Mr. Mason. The first imposed a fine of one thousand dollars and imprisonment for twelve months upon any one who should obstruct the execution of the law. The second provided that the testimony of a fugitive should not be admitted. Mr. Seward, in opposition, proposed on the 28th to allow a fugitive the right of trial by jury, with a fine of five thousand dollars and the forfeiture of office should the right be disallowed by any judge or marshal.156

Mr. Clay's "Omnibus Bill," by which he intended to settle the territorial question then before Congress, and at the same time to check the antislavery movement, contained a fugitive slave clause, though not so severe in its provisions as Mr. Mason's.157 This bill, however, was not debated as a whole, but each proposition considered separately, and thus Mr. Mason's bill became the basis of the fugitive slave provision in the Compromise of 1850.

The measure was considered, and various amendments were offered, until August 26, 1850, when it was passed by the Senate, and a few days later by the House;158 the signature of President Fillmore was readily appended, and it became law, September 18, 1850.159

§ 30. Provisions of the second Fugitive Slave Act.—Every provision of the act was arranged for the protection and benefit of the slaveholders. It was based upon the law of 1793, but a number of new regulations were added.160 Commissioners were to be chosen by the Circuit Courts of the United States and the Superior Courts of the Territories, to act with the judges of those courts in fugitive slave cases. Such commissioners could be fined one thousand dollars for refusing to issue a writ, and were liable for the value of any slave escaping from them. The testimony required for rendition was the official declaration of the fact of the escape of a slave by two witnesses, and the establishment of his identity by oath. The testimony of the accused could not be admitted. The right of trial by jury was not affirmed, and was therefore practically denied. A sheriff might call upon any bystander for help in executing the law, and the penalty for harboring or aiding in a rescue was increased from five hundred dollars, as in 1793, to one thousand dollars, and imprisonment for not more than six months. Should the slave escape, damages to the same amount were to be paid to the claimant. If a mob were feared, military force might be employed; and by a discrimination little likely to win respect for the act, the fee of the commissioner was to be increased from five to ten dollars whenever the case was decided in favor of the claimant.

Arguments for the Bill.

§ 31. Arguments for the bill.—The debate on the Fugitive Slave Bill more than any other part of the Compromise illustrates the character of the slavery conflict. Most of the Southern members urged the immediate necessity of a new law, but some of the more ardent considered the evil to be one which could be reached only through a change in public sentiment, and they thought all legislation valueless.161 Mr. Mason thus presented the evils with which the law must cope. He stated that the border States had found it an impossibility to reclaim a fugitive when he once got within the boundaries of a non-slaveholding State; "and this bill, or rather the amendments, ... have been framed with a great deal of consideration, to reach, if practicable, the evils which this experience has demonstrated to exist, and to furnish the appropriate remedy in enabling the owner of a fugitive to reclaim him." Under the existing laws, "you may as well go down into the sea and endeavor to recover from his native element a fish which has escaped from you, as expect to recover such a fugitive. Every difficulty is thrown in your way by the population.... There are armed mobs, rescues. This is the real state of things."162

Not only were the laws thus set aside by individuals, but also through the Underground Railroad an organized system of depredation was carried on, whereby thousands of dollars were every year lost to the slaveholder.163 As an illustration of the extent to which this disregard of law was carried, Mr. Yulee, one of the most extreme of the Southern men, instanced a convention which was then in session in New York "for the very purpose, openly avowed, of congratulation upon their successful violation of the Constitution in respect to fugitives, and to devise ways and means to encourage the escape of slaves."164

Such, according to the Southern Congressmen, was the condition of affairs. They then proceeded to contrast it with the situation as contemplated by the Constitution, and supported by the decision of the Supreme Court in the Prigg case. Mr. Butler insisted that this bill required "nothing more than is enjoined by the Constitution, and which contains the bond of union and the security of harmony; and in the name of Washington, I would invoke all parties to observe, maintain, and defend it." He said it was the handiwork of sages and patriots, and resulted from intelligent concessions, for the benefit of all.165 Many speeches were filled with prophecies, more or less openly expressed, of the dissolution of the Union. Mr. Soulé said the South must fight for its rights, since it is the weaker of the two sections.166 It had come down to the question, How could the Union be preserved?167 Some concessions must be made. Mr. Badger urged the bill, because it "will give assurance, it will satisfy the public mind that the Government is disposed, is truly anxious, to accomplish the restitution of fugitive slaves; sincerely wished and is resolved to do right to the uttermost of its power. The proof of this will be complete, because we furnish the best means for the recovery of the slave himself, and if these fail we can secure prompt and adequate indemnity for the loss."168

Arguments against the Bill.

§ 32. Arguments against the bill.—On the Northern side, there seems to have been an admission that some bill of the kind was necessary for the interests of the Union. The opposition dwelt chiefly, therefore, upon the details of the measure. Many considered them unjust, as recognizing only one class of rights, those of the masters. Mr. Chase, from the antislavery wing, demanded that a claim of this kind be put on the same footing as any other statutory right. "Claims of right in the services of individuals found under the protection of the laws of a free State must be investigated in the same manner as other claims of right. If the most ordinary controversy involving a contested claim of twenty dollars must be decided by jury, surely a controversy which involves the right of a man to his liberty should have a similar trial.... It will not do for a man to go into a State where every legal presumption is in favor of freedom, and seize a person whom he claims as a fugitive slave, and say, 'This man is my slave, and by my authority under the Constitution of the United States I carry him off, and whoever interferes does so at his peril.' He is asked, 'Where is your warrant?' and he produces none; 'Where is your evidence of claim?' and he offers none. The language of his action is, 'My word stands for law.'"