_LEGISLATION FROM 1789 TO 1850._
Sec. 16. Effect of the fugitive slave clause in the Constitution.
Sec. 17. The first Fugitive Slave Act (1793).
Sec. 18. Discussion of the first act.
Sec. 19. Propositions of 1797 and 1802.
Sec. 20. Propositions from 1817 to 1822.
Sec. 21. Period of the Missouri Compromise (1819-1822).
Sec. 22. Status of the question from 1823 to 1847.
Sec. 23. Canada and Mexico places of refuge.
Sec. 24. Status of fugitives on the high seas.
Sec. 25. Kidnapping from 1793 to 1850: Prigg case.
Sec. 26. Necessity of more stringent fugitive slave provisions.
Sec. 27. Action of Congress from 1847 to 1850.
Sec. 28. Slavery in the District of Columbia.
Sec. 29. The second Fugitive Slave Act (1850).
Sec. 30. Provisions of the second Fugitive Slave Act.
Sec. 31. Arguments for the bill.
Sec. 32. Arguments against the bill.
=Sec. 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]
[Sidenote: The First Fugitive Slave Act.]
=Sec. 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]
=Sec. 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]
[Sidenote: Propositions of 1797 and 1802.]
=Sec. 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]
[Sidenote: Propositions from 1817 to 1822.]
=Sec. 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]
[Sidenote: Period of the Missouri Compromise.]
=Sec. 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 deg. 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.
=Sec. 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.
[Sidenote: Canada and Mexico Places of Refuge.]
=Sec. 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]
=Sec. 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]
[Sidenote: Kidnapping from 1793-1850. Prigg Case.]
=Sec. 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.
=Sec. 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.
=Sec. 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.
=Sec. 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.
[Sidenote: The Second Fugitive Slave Act.]
=Sec. 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]
=Sec. 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.
[Sidenote: Arguments for the Bill.]
=Sec. 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. Soule 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]
[Sidenote: Arguments against the Bill.]
=Sec. 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.'"
[Footnote 59: Statutes at Large, I. 50.]
[Footnote 60: Appendix B, No. 8.]
[Footnote 61: Cong. Globe, 31 Cong. 1 Sess., Appendix, 1585; Annals of
Cong., 2 Cong. 1 Sess., H. of R., 147.]
[Footnote 62: State Papers, Miscellaneous, I. 39-43.]
[Footnote 63: House Journal, 2 Cong. 1 Sess., 444; Annals of Cong.,
148.]
[Footnote 64: House Journal, 2 Cong. 1 Sess., 454; Annals of Cong.,
179.]
[Footnote 65: Senate Journal, 170; Annals, 115.]
[Footnote 66: 2 Cong. 2 Sess., Senate Journal, 460; Annals of Cong.,
616.]
[Footnote 67: Senate Journal, 16; Annals, 622.]
[Footnote 68: Senate Journal, 25, 26; Annals, 623.]
[Footnote 69: Senate Journal, 28; Annals, 625.]
[Footnote 70: Senate Journal, 35; Annals, 630.]
[Footnote 71: Senate Journal, 34, 35; Annals, 630.]
[Footnote 72: House Journal, 105; Annals, 861.]
[Footnote 73: Appendix B, No. 9.]
[Footnote 74: Ante, Sec. 8; Appendix A, No. 8.]
[Footnote 75: Ante, Sec. 15.]
[Footnote 76: For general discussions of the act, see Von Holst,
Constitutional History, I. 309-315; Hildreth, History of the U. S., IV.
406-440; Lalor's Cyclopaedia, II. 315-316; Stephens, War between the
States, I. 629-636, 674; Bancroft's History of the U. S. (last
revision), VI. 309, 310; Goodell, Slavery and Antislavery, 227; Curtis,
History of the Constitution, II. 450-467; Hurd, Law of Freedom and
Bondage, II. 142; Story, Commentaries, III. 673-678; McMaster, History
of the American People, I. 508, II. 356, 357; Elliott's Debates, V. 357,
487; Schouler, History of the U. S., I. 219, 220; Tucker, History of the
U. S., I. 500.]
[Footnote 77: Appendix B, No. 9.]
[Footnote 78: Post, Sec. 27.]
[Footnote 79: Post, Sec.Sec. 34, 35.]
[Footnote 80: Annals of Congress, 1796-97, p. 2015, and 1801-2, p. 343.]
[Footnote 81: House Journal, 4 Cong. 2 Sess., 65; Annals of Cong., 1741,
1767.]
[Footnote 82: Murray, Cooper, and Kiltera. Annals of Cong., 1767.]
[Footnote 83: Sedgwick, Reed, and Henry. Senate Journal, 4 Cong. 2
Sess., 39; Annals of Cong., 1528.]
[Footnote 84: Appendix B, No. 10.]
[Footnote 85: House Journal, 6 Cong. 2 Sess., 220; Annals of Cong.,
1053.]
[Footnote 86: Nicholson, Goddard, Holland, J. Smith (Va.), Lowndes.
House Journal, 7 Cong. 1 Sess., 34; Annals of Cong., 317.]
[Footnote 87: House Journal, 7 Cong. 1 Sess., 45; Annals of Cong., 335.]
[Footnote 88: Annals of Cong., 343.]
[Footnote 89: House Journal, 7 Cong. 1 Sess., 125; Annals of Cong., 422,
423; Appendix B, No. 10.]
[Footnote 90: House Journal, 7 Cong. 1 Sess., 125, 128; Annals of Cong.,
423, 425.]
[Footnote 91: _Post_, Sec. 22.]
[Footnote 92: House Journal, 15 Cong. 1 Sess., 50, 86, 182, 186, 189,
193, 198; Annals of Cong., 446, 447, 513, 819, 829, 831, 840, 1339,
1393.]
[Footnote 93: Appendix B, No. 13.]
[Footnote 94: Annals of Cong., 829.]
[Footnote 95: Annals of Cong., 838.]
[Footnote 96: Annals of Cong., 15 Cong. 1 Sess., 829, 830.]
[Footnote 97: Annals of Cong., 838.]
[Footnote 98: Annals of Cong., 838.]
[Footnote 99: Annals of Cong., 838.]
[Footnote 100: Annals of Cong., 838.]
[Footnote 101: Appendix B, No. 13.]
[Footnote 102: _Post_, Sec. 25.]
[Footnote 103: House Journal, 15 Cong. 1 Sess., 198; Annals of Cong.,
840.]
[Footnote 104: Appendix B, No. 14.]
[Footnote 105: Appendix B, No. 15.]
[Footnote 106: Senate Journal, 15 Cong. 1 Sess., 128, 135, 174, 202,
227, 228, 233; House Journal, 328; Annals of Cong., 165, 210, 259, 262,
1339.]
[Footnote 107: Annals of Cong., 1716.]
[Footnote 108: Cf. Appendix B, No. 17.]
[Footnote 109: House Journal, 15 Cong. 1 Sess., 188, 191; Annals of
Cong., 546, 551.]
[Footnote 110: Annals of Cong., 16 Cong. 1 Sess., 469, 1587.]
[Footnote 111: Appendix B, No. 16.]
[Footnote 112: Liberator, Jan. 24, 1840 (N. Y. Evening Post).]
[Footnote 113: House Journal, 16 Cong. 1 Sess., 427; Annals of Cong.,
1863.]
[Footnote 114: Appendix B, No. 18.]
[Footnote 115: Senate Journal, 16 Cong. 1 Sess., 319, 326; Annals of
Cong., p. 618.]
[Footnote 116: Appendix B, No. 18.]
[Footnote 117: House Journal, 17 Cong. 1 Sess., 143; Annals of Cong.,
553, 558, 710.]
[Footnote 118: Annals of Cong, 17 Cong. 1 Sess., 1379, 1415, 1444.]
[Footnote 119: Appendix B, No. 8.]
[Footnote 120: Appendix B, No. 11.]
[Footnote 121: Appendix B, No. 19.]
[Footnote 122: _Ante_, Sec. 13; Appendix B, No. 2.]
[Footnote 123: Appendix B, No. 12.]
[Footnote 124: Am. State Papers, Foreign, IV. 106-126, VI. 346-354.]
[Footnote 125: Annals of Cong., 16 Cong. 2 Sess., 94.]
[Footnote 126: S. G. Howe, Refugees from Slavery in Canada, 12-14;
Niles's Register, XXIII. 26, LV. 289.]
[Footnote 127: Appendix B, No. 21; cf. No. 24.]
[Footnote 128: Niles's Register, XXIII. 26.]
[Footnote 129: Liberator, Dec. 31, 1860.]
[Footnote 130: Pamphlets on Anderson case, Boston Public Library;
Appendix D, No. 65.]
[Footnote 131: Life of Gerrit Smith, 115.]
[Footnote 132: Liberator, Jan. 22, 1861.]
[Footnote 133: Von Holst, II. 312; Calhoun, III. 9, 464, 486; Senate
Docs., 25 Cong. 3 Sess., No. 216.]
[Footnote 134: Wilson, Slave Power, I. 439-442; Congressional Globe,
XIV. 50.]
[Footnote 135: Goodell, Slavery and Antislavery, 252, 253; Von Holst,
Calhoun, 204-209.]
[Footnote 136: House Docs., 27 Cong. 2 Sess., V., No. 242; Congressional
Globe, XIV. 50.]
[Footnote 137: Senate Docs., 26 Cong. 1 Sess., III., No. 11.]
[Footnote 138: Congressional Globe, XIV. 80, 113-118; Calhoun, III. 462;
Appendix B, No. 20.]
[Footnote 139: Senate Docs., 27 Cong. 1 Sess., II., No. 51.]
[Footnote 140: Cobbett's Case, 47; Dana's Wheaton, note 62; cf. Appendix
B, No. 23.]
[Footnote 141: Lawrence's Wheaton, 207, n.]
[Footnote 142: Von Holst, I. 321, 322; Opinions of the Attorney
Generals, III. 484; 15 Peters, 518.]
[Footnote 143: R. Smedley, Underground Railroad, 26.]
[Footnote 144: See _post_, Sec.Sec. 71-76.]
[Footnote 145: See _post_, Sec. 38.]
[Footnote 146: Appendix B, No. 22; 16 Peters, 957; Report of Case of
Edward Prigg, Supreme Court of Pennsylvania, 202; Bledsoe, Liberty and
Slavery, 355; J. F. Clarke, Antislavery Days, 69.]
[Footnote 147: _Post_, Sec.Sec. 78, 79.]
[Footnote 148: _Post_, Sec.Sec. 34, 41, 42.]
[Footnote 149: Senate Journal, 30 Cong., 1 Sess., 59; Congressional
Globe, 51.]
[Footnote 150: Senate Journal, 30 Cong., 1 Sess., 313; Congressional
Globe, 722.]
[Footnote 151: Senate Journal, 30 Cong. 1 Sess., 313; Congressional
Globe, 722.]
[Footnote 152: Appendix B, No. 29.]
[Footnote 153: Appendix B, Nos. 25, 27, 28.]
[Footnote 154: Appendix B, No. 26.]
[Footnote 155: Appendix B, No. 30. In this number of the Appendix is a
summary of the legislative history of the measure, from the introduction
of Mason's bill, Jan. 4, 1850, to the signature of the act by President
Fillmore, Sept. 18, 1850, with references to the records of Congress.]
[Footnote 156: Congressional Globe, 31 Cong. 1 Sess., 236.]
[Footnote 157: Senate Journal, 31 Cong. 1 Sess., 118.]
[Footnote 158: Congressional Globe, 31 Cong. 1 Sess., 248; Appendix B,
No. 68. The test vote in the House stood as follows:--
States. For. Against. Not Total.
voting.
New England
States 7 15 10 32
Middle
States 9 33 21 63
Interior and
Pacific
States 16 27 8 51
-- -- -- ---
Total,
Free States 32 75 39 146
Border
Slave States 32 0 6 38
Planter
States 45 0 9 54
-- -- -- ---
Total,
Slave States 77 0 15 92
--- -- -- ---
Total 109 75 54 238]
[Footnote 159: Appendix B, Nos. 83, 84. For general discussions of the
act, see Von Holst, III. 548-557, IV. 9-12, 20-29; Wilson, Slave Power,
II. 302-329; Greeley, American Conflict, I. 210-221; Cooley's Story, Sec.
1921; Lalor's Cyclopaedia, II. 315-317; Bryant and Gay, U. S., IV.
397-401.]
[Footnote 160: For the text of the act, see Appendix B, No. 31.]
[Footnote 161: Congressional Globe, 31 Cong. 1 Sess., Appendix, 1610.]
[Footnote 162: Congressional Globe, 31 Cong. 1 Sess., 1583.]
[Footnote 163: Congressional Globe, 31 Cong. 2 Sess., Appendix, 1051.]
[Footnote 164: Congressional Globe, 31 Cong. 2 Sess., Appendix, 1622.]
[Footnote 165: Congressional Globe, 31 Cong. 1 Sess., 79.]
[Footnote 166: Congressional Globe, 31 Cong. 1 Sess., 78.]
[Footnote 167: Von Holst, III. 493.]
[Footnote 168: Congressional Globe, 31 Cong. 1 Sess., Appendix, 1597.]