Fugitive Slaves (1619-1865)

§ 85. The Fugitive Slave Law in the crisis of 1860-61.—If the number of interesting fugitive slave cases falls off in the latter part of the decade from 1850 to 1860, it is not because the law was better enforced, but because it was little enforced. The continued interference of the friends of the slave had proved that a fugitive could not safely be recovered in Massachusetts, and that no punishment could be secured for those who helped him to his freedom. The personal liberty bills added serious legal obstacles. The Supreme Court of Wisconsin even went so far as to declare the national act of 1850 unconstitutional.302 In 1859 John Brown, in his Harper's Ferry raid, attempted to establish a centre to which fugitives might flock; and although he was defeated, he had the sympathy of a large number of persons in the North, including some public men.

In the violent debates of 1860-61, one of the frequent charges brought by the southern members against the North was its persistent refusal to execute the Fugitive Slave Act, or to permit it to be executed.303 Even Republican members disclaimed responsibility for their party, and urged that the personal liberty bills should be repealed.304 Other bolder spirits seized the opportunity to urge a repeal of the act, and in the various compromise propositions introduced were several attempts to modify the existing constitutional provision on the subject.

Enforcement. Slaves of Disloyal Men.

§ 86. Propositions to enforce the Fugitive Slave Law.—In the crisis of 1860 the South seemed to expect a general settlement of the slavery question like that of 1850, and therefore demanded a more effective act for the return of fugitives. President Buchanan, in his message of December 4, 1860, recommended "explanatory" constitutional amendments which should recognize the master's right to the recovery of his fugitive slaves, and the validity of the Fugitive Slave Law. He recommended also a declaration against State laws impairing the right of the master, as being violations of the Constitution, and consequently null and void.305 This recommendation was followed, December 12, 1860, by no less than eleven resolutions upon the subject in the House.306 Of these five were constitutional amendments. Several provided, as a pacific measure, that the town, county, or State, guilty of neglect to return a fugitive, might be sued by the owner of the slave for the amount thus lost to him.307 The most arbitrary proposition was that of Mr. Hindman. It denied representation in Congress to any State which should hold in force laws hindering the delivery of fugitives.308

Another resolution inquired into the expediency of declaring it felony to resist an officer of the United States in the execution of the law, or to attempt to rescue a runaway.309

§ 87. Propositions to repeal or amend the law.—On the other hand, antislavery members insisted that the provision for the return of fugitives was already too severe; but only one of the resolutions proposed any amendment in favor of the slave. Mr. Kilgore proposed to give a trial by jury before a fugitive should be returned.310

As early as 1860 Mr. Blake had introduced into the House a bill to repeal the law of 1850. It was read twice, and referred to the Committee on the Judiciary, from whom it was never reported.311 At that time Congress, in alarm at the state of the country, was vainly striving to mend matters by making the Fugitive Slave Law even more effective. March 1, 1861, the select committee of thirty-three brought in a bill for the amendment of the law of 1850; it allowed an appeal to the Circuit Court of the United States where jury trial was to be given. The bill passed the House the same day; but in the Senate it never got beyond the first reading.312

§ 88. The question of slaves of rebels.—With the beginning of the Civil War in 1861 the last period in the study of fugitive slaves opens, to close only with the repeal of the Fugitive Slave Law and the abolition of slavery.

To meet the changed conditions no policy had as yet been developed by the government. The first solution of the problem was made at Fortress Monroe by General Butler. He drew an analogy from international law, which makes material of war imported into the country of a belligerent lawful prize to the army or navy of the other belligerent. Regarded as property, the slaves of rebels could be of great service to them, and of equal help to the government in suppressing rebellion. Regarded as persons, they had escaped from communities where rebellion was in progress, and they asked protection from the government to which they were still loyal. In May, 1861, General Butler therefore replied to all demands for fugitives that he should retain them as "contraband of war." The answer was widely spread, and "contraband" became the name by which such negroes were known.313

§ 89. Slavery attacked in Congress.—A series of attacks upon slavery now began in Congress. To many persons the fact that the institution was recognized in the Constitution seemed sufficient ground for protecting it. No doubt was entertained of the power of Congress to confiscate the ordinary property of rebels; but such persons deprecated all interference with slaves, who were supposed to possess a kind of constitutional immunity, wholly unknown to and above all other property.314 In the minds of antislavery men, "no greater fallacy was ever asserted than this attempt thus to link 'the institution' and the Constitution indissolubly together, to engraft the former upon the latter, to make slavery the corner stone of the nation, to be guarded and protected by the government."315 Nevertheless, the existence of slavery in the Border States which had remained loyal made Congress very cautious as to general enactments. On the other hand, no form of property held by rebels was so vulnerable; slaves could not only be seized as the lines of the Northern troops extended, they could, by actual law or by kindly reception, be invited across the lines. Both the passions aroused by civil war and a humane pity for the slave urged the government to deprive the master engaged in secession of the services of his slave.

Confiscation Bills.

§ 90. Confiscation bills.—July 18, 1861, Mr. Chandler and Mr. Trumbull introduced general confiscation bills in the Senate; they were both referred to the Committee on the Judiciary. In the discussion Mr. Trumbull offered as an amendment "that whenever any person claiming to be entitled to the service or labor of any other person, under the laws of any State, shall employ such person in aiding or promoting any insurrection, or in resisting the laws of the United States, or shall permit or suffer him to be so employed, he shall forfeit all right to such service or labor, and the person whose service or labor is thus claimed shall be thenceforth discharged therefrom, any law to the contrary notwithstanding."316

The proposition aroused considerable opposition, since it was a step far in advance of anything which had yet been done against the interests of slavery, and any proposition which advocated "an act of emancipation," however limited and qualified, was the signal for hot discussion. The opposing party announced that "nothing will come of it but more irritation,"317 and in each crisis statesmen should "observe all possible toleration, all conciliation, all liberality."318 Mr. Wilson upheld the opposite opinion, and thought that the time had come when this government, and the men who are in arms under the government, should cease to return their fugitive slaves to traitors.

The bill passed the Senate July 22, 1861. In the House it was amended so as to limit the negroes to be freed more strictly to those employed in military service.319 The bill went back to the Senate, which concurred in the amendment,320 and it received the signature of the President, August 6, 1861.321

The Emancipation Proclamation.

§ 91. Confiscation provisions extended.—Propositions more far reaching were introduced into the Senate in the session of 1861-62.322 January 15, 1862, Mr. Trumbull, from the Committee on the Judiciary, to whom the various propositions had been referred, reported an original bill, and asked that the committee be discharged from the consideration of others.323 March 14, 1862, Mr. Harris introduced into the Senate a bill to confiscate the property of rebels and for other purposes.324 These propositions were considered at length, but never came to a vote. It is not necessary to enter here into the discussion of confiscations and of the constitutional right of Congress to free the slaves; in most of the bills there was a provision against the return of slaves to disloyal masters.

The Harris bill declared that, before any order for the surrender of fugitives should be given, the claimant must establish not only his title to the slave, as was then provided by law, but also that he is and has been loyal to the United States during the Rebellion. Mr. Pomeroy objected to this because it would make it "obligatory on the government of the United States to surrender a person claimed to be indebted to another for service or labor, if the claimant proves that he is loyal to the government. Would not this re-enact the Fugitive Slave Law of 1850?"325 An amendment was therefore adopted which so changed the law that any reference to the act of 1850 was avoided.326 After several debates the proposition was recommitted, May 6.327 Mr. Clark reported a bill, May 14, which retained the provision in regard to fugitives as at first offered.328

In the House, resolutions on confiscation and emancipation were offered on the first day of the session, but the final action was based upon one of several bills introduced by Mr. Eliot, May 14, 1862.329 His first bill, upon the confiscation of the property of the rebels, need not be followed out here; but the second bill provided for the emancipation of the slaves of disloyal masters, and forbade their return as fugitives. After various recommitments330 a bill was brought in, according to which, in any suit brought by a claimant to recover the possession of slaves to enforce such service or labor, it was to be a sufficient bar to allege and prove that the master was disloyal to the government.331 The bill then passed the House by a vote of 82 to 54.332

When it came up in the Senate, June 23, 1862, Mr. Clark moved to strike out all after the enacting clause, and to insert a substitute which would again unite the confiscation and emancipation bills. This amendment was rejected by the House, and a conference committee was appointed which reported July 11 and 12. The fugitive from a disloyal master was by this compromise to be deemed a captive of war, and forever freed from servitude.333 The report was adopted by both houses, and approved by the President, July 17, 1862.334 From that date any slave of a disloyal master who could make his way into the territory occupied by the Northern troops was ipso facto free. The fugitive was to become a freeman.

§ 92. Effect of the Emancipation Proclamation (1863).—The complete emancipation of the negroes within the Confederate lines was the next logical step, and was demanded as a war measure. It deprived the Confederacy of the aid of these slaves, and at the same time made it possible to arm and employ the former slaves against their masters. September 22, 1862, President Lincoln issued his preliminary proclamation, by which he warned the South that, unless it should return to its allegiance, all persons held as slaves in the States in rebellion on the 1st of January, 1863, should be "thenceforth and forever free."

§ 93. Fugitives in loyal slave States.—From the beginning of the war one of the most embarrassing questions which had come before Congress was, How shall the slaves of loyal owners be treated? The necessity of holding the Border States firm for the Union disposed many to support only the most conciliatory measures; but these States were a part of the theatre of war. Northern armies now occupied parts of the Confederacy as well, and among the great numbers of blacks who flocked to the Union camp it was impossible to separate the slaves of the loyal from the disloyal. Moreover, it was necessary that there should be some uniformity of method. Without specific law, the reception given to fugitives from loyal masters must vary with the views of each commanding officer with whom they sought refuge.

§ 94. Typical cases.—Cases began to occur very early in the struggle. In 1861 a slave called Wisdom ran away from Georgetown, and was taken in by some wagoners belonging to the Northern army. He soon found work, but his master succeeded in tracing him, and came to camp to claim him. He demanded the slave of Captain Swan, officer of the day. Captain Swan hoped the man might be smuggled away, and so delayed the search as long as possible. The master then went to Colonel Cowden, who immediately ordered the slave to be surrendered, without the form of proceedings prescribed by the act of 1850, and in disregard of the fact that the master was not provided with the necessary certificate. When the facts became known in Massachusetts and elsewhere, there was great indignation. The Colonel was hung in effigy in Boston, with the following inscription: "Colonel Cowden, of Burns rendition notoriety, is now practising his tricks at kidnapping in Washington."335

Major Sherwood of the 11th West Virginia Regiment had, in 1861, employed a colored refugee as his servant. The owner sent a United States marshal to Brigadier General Boyle, who gave an order for his rendition. Major Sherwood sent a message that he would give up his sword, but, while he was in command, no fugitive should be returned. He was placed under arrest for disobedience, to await court-martial; but General Staunton ordered General Boyle's order revoked, and Major Sherwood was never tried. In the mean time the boy had been sent away concealed under the seat of an ambulance, and reached Canada in safety.336

§ 95. Question discussed in Congress.—As early in the war as 1861, a number of resolutions were brought into Congress, designed to meet this difficulty,337 and Mr. Lovejoy introduced a bill making it a penal offence "for any officer or private of the army or navy to capture or return, or aid in the capture or return" of fugitive slaves.338 The bill was referred to the Committee on the Judiciary, which reported adversely upon it, April 16, 1862.339 December 16, 1861, Mr. Hale had offered a resolution, which was adopted, looking toward a uniform method of dealing with the slaves of rebels.340 Mr. Sumner brought in another on December 17, which forbade the employment of the armies in the surrender of fugitives.341 "I ask, sir," said the writer of a letter read by Mr. Sumner, "shall our sons, who are offering their lives for the preservation of our institutions, be degraded to slave catchers for any persons loyal or disloyal? If such is the policy of the government, I shall urge my son to shed no more blood for its preservation."342 Another protest came from two German companies in one of the Massachusetts regiments, who, when they enlisted, entered the service with the understanding that they should not be put to any such discreditable service. They complained, and with them the German population generally throughout the country.343

Some proof that the owner of the slave was at least loyal to the government seemed necessary, if rendition were to be made at all; though antislavery men were determined to admit no return of fugitives under any circumstances. December 20, 1861, a resolution of Mr. Wilson's was adopted, for an additional article of war forbidding officers from returning fugitives under any consideration.344 A bill was introduced, discussed, and somewhat amended, but never passed.345

Mr. Blair's bill, of February 25, 1862, from the Committee on Military Affairs in the House, was to the same purpose.346 This, however, was successfully carried in both houses, and signed by the President, May 14, 1862. In the discussion, Mr. Mallory opposed the bill, because it seemed to him that it would prevent the President of the United States from sending a military force into a State to aid the authorities in enforcing a national law which stands upon the statute-book.347 Mr. Bingham answered this objection by saying that it simply determined that for the future, as in the past, the army and navy should not exercise functions which belong solely to the civil magistrates.348

§ 96. Arrests by civil officers.—The act of May 14, 1862, applied only to army officers. Notwithstanding the opportunities then offered for escape, wandering negroes were still liable to be seized by civil authorities and placed in jail. In this way numbers of negroes, many of them really free, were arrested, on the supposition of being runaways, and were imprisoned without trial for an indefinite length of time. An advertisement in 1863 shows the method then in use.

District of Columbia.

§ 97. Denial of the use of the jails in the District of Columbia.—Several efforts were made to remedy this state of things, at least in the territory over which Congress had exclusive control. December 4, 1861, Mr. Wilson, who had been investigating the condition of the District of Columbia jail in Washington, offered a joint resolution for the release of all fugitives from service or labor therein held.350 It appeared that some sixty persons were imprisoned solely because they were suspected of being runaways, and had been allowed no opportunity to prove the contrary. A free boy from Pennsylvania came to Washington with the 5th Pennsylvania Regiment. He was found in the streets and sent to jail. Another boy, who was working for the soldiers on the railroad, was also taken up and placed there.351

Mr. Wilson struck at the root of the matter by a resolution, which was agreed to, looking to the revision of all the laws in the District of Columbia providing for the arrest of persons as fugitives from service or labor, and to consider the expediency of abolishing slavery in the District.352

On December 9, 1861, Mr. Bingham introduced a resolution for the repeal of all acts in force in the District of Columbia which authorized the commitment of runaways and suspected runaways to the jail; it was referred to the Committee on the Judiciary.353 Mr. Fessenden asked that the Committee on the District of Columbia investigate and report upon the condition of the jail; this was agreed to.354

A few weeks later, December 30, 1861, Mr. Grimes presented a bill in the Senate in regard to the administration of criminal justice in the District. This was read and referred to the committee, which reported it, January 6, 1862.355 Efforts were immediately made to prevent fugitive slaves from being included in the general jail delivery contemplated by the bill. Mr. Powell, in the debate upon his amendment to that purpose, urged that so long as the institution of slavery existed in the South, no such measure ought to prevail.356 Mr. Grimes supported his measure by giving some examples of exceedingly unjust cases which had occurred. "A young colored fellow, who came as a servant of an officer from the vicinity of Pittsburg, was thrown into this jail in August last. The regiment to which he was attached went forward toward the face of the enemy. There was nobody here to look after him. There is no doubt as to his being a free boy, yet he was there on the first day of this month." To such cases he desired to have the law apply. "They have here in this District and in Maryland what they call an apprehension fee. They have a law which declares that if any slave wanders a certain distance from the residence of his master, he may be taken up as a fugitive. There are persons in this vicinity, I am credibly informed, who are lying in wait all around your city and the surrounding country, in hope that they can find some poor colored man or woman who is out picking berries and visiting a friend, and who will wander a little further than the distance established by law from the residence of the master."357 The opinion that such injustice ought to be corrected prevailed, and the amendment was rejected. After much discussion the bill passed the Senate, January 14, 1862,358 and it was approved by the President on the same day. Thenceforward the Fugitive Slave Law was practically a dead letter at the seat of government, since the necessary machinery was lacking, and the spirit of the administration was opposed to it. The new act was in effect a national personal liberty bill.

§ 98. Abolition of slavery in the District of Columbia.—The work contemplated by all the propositions was finally accomplished in one act. On December 16, 1861, Mr. Wilson had offered a bill in the Senate for the total abolition of slavery in the District of Columbia. It was reported with amendments a few weeks after the passage of the act denying the use of jails, and on February 24, 1862, Mr. Wilson presented a supplementary bill.359

The debates upon this proposition were long and interesting. The South regarded it as "an entering wedge of something more comprehensive and radical,"360 as preparatory to the abolition of slavery in the whole country by Congress. The antislavery party rejoiced that at last an opportunity had come for freeing the national capital from the disgrace of slavery. The bill passed both houses, and was approved April 16, 1862.³⁶¹ By the final section of the act the black code of Maryland was wiped out, and the severe local provisions against fugitives, which had not been repealed by the previous act, were at last taken away. It remained only to attack the last stronghold of the system,—the two acts of 1793 and 1850.

§ 99. Regulations against kidnapping. In the act of April 16, 1862, were included regulations against kidnapping,—a practice made easy by the unsettled state of the country. It seems to have been largely carried on not only by Southerners, but also by unprincipled soldiers connected with the Union army. The Liberator of March 27, 1863, notices such a case. Some men from the 99th Regiment of New York Volunteers kidnapped a free colored man at Norfolk, Virginia. They took his horse, cart, and the provisions which he had just bought, and offered him for sale to be sent South. During the absence of his captors for a few moments, the man was able to work off his bonds and to escape in the darkness. He immediately went before a provost marshal, told his story, and recognized one of his captors who was just entering the door. What the consequences of this meeting were the "Liberator" does not tell us; but the impression is given that the negro was saved from his pursuers.362

Repeal of the Acts proposed.

§ 100. Repeal of the Fugitive Slave Acts.—By the successive acts of Congress and the President, the legal effect of the Fugitive Slave Laws was now confined practically to the limited area of the Border States. No officer, civil or military, could return a fugitive into the Confederate lines. Slavery was forbidden in the District of Columbia, and there could be no escapes thence; and Congress forbade the use of the jails of the District for the confinement of fugitives from slaveholding regions. In the free States the rendition of slaves, though still legally required, had long since ceased. The final step was delayed till 1864.

§ 101. Early propositions to repeal the acts.—Repeal, however, was preceded by many earlier propositions. The Committee on the Judiciary, to which was referred Mr. Howe's bill, presented December 26, 1861,363 did not report until 1863, and then with the opinion that it ought not to pass. In introducing his repeal measure, Mr. Howe spoke of the bill of 1850 as one "which has probably done as much mischief as any other one act that was ever passed by the national legislature. It has embittered against each other two great sections of the country."364 To take away the law of 1850 would leave in force the act of 1793, which was "good enough."

June 9, 1862, soon after the passage of the acts on the District of Columbia, Mr. Julian presented in the House another repeal bill, which was referred to the Committee on the Judiciary.365 As the war progressed, and the antislavery sentiment began to outweigh all others, it became evident that the old law could not much longer obtain. Nevertheless the question was set aside during the session of 1862-63, but in 1863-64 five bills were introduced looking to the repeal of the acts.366

Mr. Morris, from the committee to whom all bills for repeal had been referred, reported a substitute for them, June 6, 1864, and this was the basis of the final action of Congress.367

Discussion of Repeal Bills.

§ 102. Discussion of the repeal bill in the House.—Had the country been divided simply into two parts, the slaveholding Southern Confederacy and the free loyal North, little discussion could have arisen. The third element, the slaveholding States which remained firm for the Union, rendered the question far more complex. The bill therefore aroused much indignation. Mr. Mallory demanded, as an act of justice to his State, that "the Fugitive Slave Act be permitted to remain on the statute-book. If you say it will be a dead letter, so much less excuse have you for repealing it, and so much more certainly is the insult and wrong to Kentucky gratuitous. This act, by which you declare your intention not to obey the injunction of the Constitution is wanton and useless, except for the purpose of bravely exhibiting your contempt for that instrument." "The framers of the Constitution gave us the right to reclaim fugitive slaves. It was conceded not as a favor, but as a right." "Kentucky has remained true to her faith pledged to the government, and I warn you not to persevere in inflicting on her insult and outrage."368

Again, one of the reasons for the departure of the Southern States, was the "bad faith of the Northern States,—the fatal infringement of this part of the Constitution. It was because of Personal Liberty bills, John Brown raids, and general denunciation and intermeddling with slavery."369 Many members urged that there could be no more reckless action than to show to the Border States an apparent disregard of the Constitution. Mr. Cox considered the law the only refuge left to a certain class of citizens to protect their "rights." It would be like saying to them, We place the penalty of the treason of the revolted slaveholders on your innocent heads. "We add to your calamities the ingratitude and treachery of the government to which you have adhered."370

The final discussion, June 13, opened with a long speech by Mr. King. The old arguments from the Constitution, the far-seeing wisdom of the fathers, the opinion of the Supreme Court in the Prigg case, and the harm done the Border States, were again rehearsed.371

In answer to Mr. King, Mr. Hubbard denied that the Constitution provided for the enactment of a law by Congress, and in any case, the treason of slavery had already absolved the people from any such obligation. It surely must be competent for this Congress to repeal any act which a previous Congress had enacted. For yet another reason the law should be repealed. Negro soldiers must be enlisted: "You cannot draft black men into the field, while your marshals are chasing women and children in the woods of Ohio with a view to render them back into bondage. The moral sense of the nation, ay, of the world, would revolt at it."372 Again, this would make a conflict in our laws, said Mr. Morris. A colored man might enlist in our army, then, under the Fugitive Slave Law, "he might be seized and remanded to slavery; and as a further consequence, dealt with as a deserter from his post of duty."373 It was also urged that unless slavery was to survive the war, the two acts were useless and obsolete statutes, which ought to be wiped out of existence. No one who believes that slavery is dead would desire to keep such a guaranty of the institution.374 Mr. Hubbard then demanded the yeas and nays on the passage of the bill. It was declared in the affirmative, yeas 82, nays 57, and thus the repeal was successfully carried in the House.375

§ 103. Repeal bills in the Senate.—Mr. Sumner had already reported a repeal bill from the Committee on Slavery and Freedom in the Senate, February 29, 1864.376 The progress of the bill was so delayed by the opposition, that Mr. Sumner at last gave notice that he should take every proper occasion to call up the bill, and press its consideration.377

In the debate several speeches were made against the measure, while Mr. Sumner defended it. To the antislavery party the act was constitutionally378 and morally wrong, so against public sentiment that it could seldom be enforced, and the question of its repeal was as plain as a "diagram," "the multiplication table," or "the ten commandments."379 They desired to strike slavery wherever they could hit it, and to "purify the statute-book, so that there should be nothing in it out of which this wrong can derive any support." It should be repealed for the sake of our cause in foreign lands.380 "Since the outbreak of the Rebellion this statute has been constantly adduced by our enemies abroad as showing that we are little better than Jefferson Davis and his slave-monger crew; for slavery never shows itself worse than in the slave-hunter. It is a burden for our cause which it ought not to be obliged to bear."

To retain the law of 1793, framed by the founders of the Republic, and repeal the act of 1850 with its manifest injustice, was suggested as a desirable compromise. Mr. Sherman, therefore, offered an amendment to this effect, and it was accepted.381 The friends of the measure then felt that the bill as it stood was of little value to the antislavery cause. Mr. Brown maintained that it was really a proposition to reinstate slavery in its fastness in the Constitution. "The civilized world, when it beholds the spectacle of the American Senate going back for three quarters of a century to resurrect a statute of slave-catching, and pass it anew with their indorsement, will credit very little all your talk about freedom. The act will give the lie to all argument."382

Before further action was taken on Mr. Sherman's bill, the repeal bill from the House came before the Senate, and was reported from the committee, June 15, 1864. It was discussed for several days, but no new arguments were offered, and, June 23, 1864, the bill passed the Senate by a vote of 27 to 12.³⁸³ On the 25th of June it received President Lincoln's signature, and the Fugitive Slave Laws were swept from the statute-book of the United States.384

Repeal of the Acts.

§ 104. The repeal act and the thirteenth amendment.—The act was a simple one; it runs as follows:—