_PERSONAL LIBERTY LAWS._
Sec. 77. Character of the personal liberty laws.
Sec. 78. Acts passed before the Prigg decision (1793-1842).
Sec. 79. Acts passed between the Prigg decision and the second
Fugitive Slave Law (1842-1850).
Sec. 80. Acts occasioned by the law of 1850 (1850-1860).
Sec. 81. Massachusetts acts.
Sec. 82. Review of the acts by States.
Sec. 83. Effect of the personal liberty laws.
=Sec. 77. Character of the personal liberty laws.=--The personal liberty
laws were statutes passed in the Northern States whose object was to
defeat in some measure the national Fugitive Slave Law. Often their
ostensible purpose was to protect the free negroes from kidnappers, and
to this end they secured for the alleged fugitive the privilege of the
writ of habeas corpus, and the trial by jury. Sometimes, however, they
frankly avowed their aim as a deliberate attempt to interfere with the
execution of the United States statutes. In the following examination of
these laws, they will be considered first chronologically, and afterward
more minutely according to their subject matter. In previous chapters we
have noticed many instances wherein fugitives have been befriended by
individuals, or by organizations like the Antislavery Societies or the
Underground Railroad. But the action of the State governments in the
personal liberty bills, from the time the Fugitive Slave Act of 1793
began to be executed to the outbreak of the Civil War, showed that the
dissatisfaction of the North was fundamental, and was not confined merely
to the few in the van of the Antislavery movement.
[Sidenote: Analysis.]
=Sec. 78. Acts passed before the Prigg decision (1793-1842).=--Although the
so-called personal liberty laws were not passed until about 1840,
Indiana[256] and Connecticut[257] had before that time provided that on
appeal fugitives might have a trial by jury. The Connecticut law, in
contrast to the hostile spirit of later legislation, was entitled, "An
Act for the fulfilment of the obligation of this State imposed by the
Constitution of the United States in regard to persons held to service or
labor in one State escaping into another, and to secure the right of
trial by jury in the cases herein mentioned." Notwithstanding this
preamble, the law provided for fining State officials who might take part
in fugitive slave cases.
The first definite personal liberty laws were passed by Vermont[258] and
New York,[259] in 1840, and were entitled Acts "to extend the right of
trial by jury." They not only insured jury trial, but also provided
attorneys to defend fugitives. This was the only law of the kind New York
ever passed, and proved of little value, since it soon fell into disuse,
and was almost forgotten.
=Sec. 79. Acts passed between the Prigg decision and the second Fugitive
Slave Law (1842-1850).=--After the Prigg decision in 1842, wherein it was
declared that the law must be executed through national powers only, and
that State authorities could not be forced into action,[260] a new class
of statutes sprang up. The State legislatures seized the opportunity
afforded them by Judge Story's opinion, to forbid State officers from
performing the duties required of them by the law of 1793, and prohibited
the use of State jails in fugitive slave cases. Such laws were passed in
Massachusetts,[261] Vermont,[262] Pennsylvania,[263] and Rhode
Island.[264] In 1844, Connecticut repealed her act of 1838, as being then
unconstitutional, but retained the portion forbidding State officers to
participate in the execution of the law.
=Sec. 80. Acts occasioned by the law of 1850 (1850-1860).=--The provisions
of the law of 1850 roused yet more opposition in the North, and before
1856 many of the States had passed personal liberty bills. The new
national law avoided the employment of State officers. This change in the
statute brought about a corresponding alteration in the State
legislation, and we therefore find the acts of this period differing
somewhat from those of earlier years. They almost invariably prohibited
the use of State jails, they often forbade State judges and officers to
issue writs or to give assistance to the claimant, and punished severely
the seizure of a free person with the intent to reduce him to slavery.
Should an alleged fugitive be arrested, the personal liberty acts were
intended to secure him a trial surrounded by the usual legal safeguards.
The identity of the person claimed was to be proved by two witnesses; or
they gave him the right to a writ of habeas corpus; or they enjoined upon
the court to which the writ was returnable a trial by jury. At the trial
the prisoner must be defended by an attorney, frequently the State or
county attorney, and a penalty was provided for false testimony. Any
violation of these clauses by State officers was punished by penalties
varying from five hundred dollars and six months in jail, as in
Pennsylvania, to the maximum punishment in Vermont, of two thousand
dollars' fine and ten years in prison.
Such acts were passed in Vermont,[265] Connecticut,[266] and Rhode
Island,[267] in Massachusetts,[268] Michigan,[269] and Maine.[270] Later,
laws were also enacted in Wisconsin,[271] Kansas,[272] Ohio,[273] and
Pennsylvania.[274] Of the other Northern States, two only, New Jersey and
California, gave any official sanction to the rendition of fugitives. In
New Hampshire, New York, Indiana, Illinois, Iowa, and Minnesota, however,
no full personal liberty laws were passed.[275]
=Sec. 81. Massachusetts acts.=--Let us now examine the purport of these acts
in the various States. The general tenor and effect are best seen in
Massachusetts, which may be selected as a typical State. In 1837,
Massachusetts passed a law "to restore the trial by jury, on questions of
personal freedom." This secured to the prisoner a writ of personal
replevin, which was to be issued from and returnable to the Court of
Common Pleas for the county in which the plaintiff was confined, and was
to be issued fourteen days at least before the return day. If the
prisoner were secreted, the court might send out a capias to take the
body of the defendant. This act allowed an appeal to the Supreme Judicial
Court.
In 1842, the Latimer case[276] occurred. This so aroused public sentiment
that a great petition, signed by sixty-five thousand people, was sent to
the legislature, asking for a new personal liberty law. On the basis of
the Prigg decision, a law was enacted which forbade State magistrates to
issue certificates or take cognizance of the law of 1793, and withheld
the use of State jails for the imprisonment of fugitives.[277]
In 1851, in the Shadrach case,[278] there was opportunity for testing the
value of this law. The fugitive was not indeed confined in any jail, but
there was little difficulty in providing a place of detention, and the
court-house was secured. In this year, acting upon a clause in the
Governor's message, which treated of the new Fugitive Slave Law of 1850,
a committee in the legislature made a report, accompanied by resolutions
and a bill further to protect personal liberty; but no law was passed,
and there the matter rested until 1855.[279]
After the Sims[280] and Burns[281] cases, in which the court-houses were
again used in the place of jails, the heat of public indignation led to
petitions to the legislature asking for a more stringent personal liberty
law. A joint committee prepared a bill, which was passed, but was vetoed
by Governor Gardner, who had been advised by the Attorney General that
some of the clauses were unconstitutional. But so strong was the
influence in its favor that it was passed over the veto by a two-thirds
vote.[282] The feeling that it was probably unconstitutional, however,
must have strengthened in the next three years: for in 1858[283] we find
another act which amended the act of 1855. This limited some provisions,
and repealed the following sections: the tenth, which required that any
person who should give a certificate that a person claimed as a fugitive
was a slave should forfeit any State office he might hold; the eleventh,
which forbade any person acting as attorney for a claimant to appear as
counsel or attorney in the State courts; the twelfth, which made a
violation of the preceding section sufficient ground for the impeachment
of any officer of the Commonwealth; the thirteenth, which forbade any
United States officer empowered to give certificate or issue warrants
from holding a State office; and the fourteenth, which made liable to
removal any person holding a State judicial office who should also hold
the office of Commissioner.
[Sidenote: Review of the Acts by States.]
=Sec. 82. Review of the acts by States.=--Of the other New England States,
Maine had no personal liberty law until 1855.[284] Two years after,
however, in 1857,[285] a portion of an act declaring free all slaves
brought by their masters into that State was devoted to a provision "to
punish any attempt to exercise authority over them."
In New Hampshire, one of the laws of 1857[286] enacted that every person
holding any person as a slave for any length of time, under any pretence,
should be deemed guilty of felony; but provided that this should not
apply to United States officers executing any legal process.
Vermont, by an act in 1840,[287] extended to fugitives the right of trial
by jury, but after three years this was repealed,[288] only to be renewed
in 1850.[289]
Connecticut, as has been noticed, had no personal liberty law. Rhode
Island first passed such an act in 1848.[290] This forbade State officers
to take cognizance of fugitive slave cases, and the use of State jails.
Another statute, in 1854,[291] extended these provisions so as to apply
to the national law of 1850.
The act of 1840 was the only Personal Liberty Law of New York.[292]
Pennsylvania, some seven years later, forbade the use of jails, and
punished State officers for participating in fugitive slave cases.[293]
It also enacted a regulation of the same character as late as 1860.
Ohio made but one provision on the subject, and that lasted but a year.
Her jails were closed to suspected slaves in 1857,[294] but in 1858 this
law was repealed.[295]
Michigan passed such an act in 1855,[296] with the usual clauses on the
use of jails and jury trial, and imposed a fine on false testimony
against the defendant.
In 1858 Wisconsin and Kansas also passed similar acts.[297]
=Sec. 83. Effect of the personal liberty laws.=--Since the avowed purpose of
these laws was to obstruct the execution of one of the United States
statutes, national and State legislation were thus brought into direct
conflict; but the Fugitive Slave Law was held constitutional by the
Supreme Court, and any attempt to prevent its enforcement by positive
means, however righteous from an ethical standpoint, must be considered
an infraction of the Constitution, and of the common understanding
between the States, on which the Union was founded.[298] The provisions
denying the use of State institutions and officers, though distinctly
unfriendly, were not unconstitutional. Many of the Abolitionists,
however, held the national law to be unconstitutional, and at the same
time morally so repugnant that it ought never to be executed.[299] The
State laws were brought up by South Carolina, in her declaration of the
causes of secession, as one of the chief grievances against the North;
and President Buchanan, in his Message of 1860,[300] said they were "the
most palpable violations of constitutional duty which had yet been
committed." They must certainly be classed in principle with the
Nullification Ordinance of 1832. Indeed, the legislature of Wisconsin,
after the Supreme Court had overridden the decision of the State courts
in the case of Ableman v. Booth that the national law was contrary to the
national Constitution, passed some resolutions in which a "positive
defiance is urged as the 'rightful remedy'" against such
legislation.[301]
[Footnote 256: Revised Laws of Indiana, 1824, p. 221.]
[Footnote 257: Laws of Connecticut, 1838, p. 32.]
[Footnote 258: Acts and Resolves of Vermont, 1840, p. 13.]
[Footnote 259: Laws of New York, 1840, p. 174.]
[Footnote 260: See _ante_, Sec. 27.]
[Footnote 261: Laws of Massachusetts, 1843, p. 33.]
[Footnote 262: Acts and Resolves of Vermont, 1843, p. 11.]
[Footnote 263: Laws of Pennsylvania, 1847, p. 206.]
[Footnote 264: Acts and Resolves of Rhode Island, 1848, p. 12.]
[Footnote 265: Laws of Vermont, 1850, p. 9.]
[Footnote 266: Public Acts of Connecticut, 1854, p. 80.]
[Footnote 267: Laws of Rhode Island, 1854, p. 22.]
[Footnote 268: Laws of Massachusetts, 1855, p. 924; 1858, p. 151.]
[Footnote 269: Laws of Michigan, 1855, p. 415.]
[Footnote 270: Laws of Maine, 1857, p. 38.]
[Footnote 271: Lalor, III. 162.]
[Footnote 272: Lalor, III. 162.]
[Footnote 273: Laws of Ohio, 1857, p. 170; 1857, p. 10.]
[Footnote 274: Lalor, III. 162.]
[Footnote 275: The following tabulation shows the provisions of the
personal liberty laws as distributed among the States:--
_Judges and justices forbidden to take cognizance._
Massachusetts, 1843;
Vermont, 1843;
Connecticut, 1838;
Rhode Island, 1854;
Maine, 1855;
Pennsylvania, 1847.
_Writ of habeas corpus._
Massachusetts, 1855;
Michigan, 1855;
Maine, 1857;
Connecticut, 1838 and 1844.
_Jury trial._
Indiana, 1824;
New York, 1840;
Vermont, 1840, 1850, and 1858;
Connecticut, 1838;
Michigan, 1855;
Massachusetts, 1855.
_Use of jails forbidden._
Massachusetts, 1843 and 1855;
Vermont, 1843 and 1858;
Pennsylvania, 1847;
Rhode Island, 1848;
Maine, 1855;
Michigan, 1855;
Ohio, 1857.
_Attorneys employed to defend fugitives._
New York, 1840;
Vermont, 1840;
Massachusetts, 1855;
Maine, 1857.
_False testimony punished._
Connecticut, 1838 and 1844;
Michigan, 1855.
_Admission of national officers._
Connecticut, 1838 and 1844;
Vermont, 1844;
Maine, 1855;
New Hampshire, 1857.]
[Footnote 276: See _ante_, Sec. 44.]
[Footnote 277: Laws of Massachusetts, 1843, p. 33.]
[Footnote 278: See _ante_, Sec. 57.]
[Footnote 279: Parker, Personal Liberty Laws, 27.]
[Footnote 280: See _ante_, Sec. 54.]
[Footnote 281: See _ante_, Sec. 55.]
[Footnote 282: Parker, Personal Liberty Laws, 27; Laws of Massachusetts,
1855, p. 924; Appendix D, No. 60, case of William Johnson.]
[Footnote 283: Laws of Massachusetts, 1858, p. 151.]
[Footnote 284: Acts and Resolves of Maine, 1855, p. 207.]
[Footnote 285: Ibid., 1857, p. 38.]
[Footnote 286: Acts and Resolves of New Hampshire, 1857, p. 1876.]
[Footnote 287: Acts and Resolves of Vermont, 1840, p. 13.]
[Footnote 288: Laws of Vermont, 1843, p. 11.]
[Footnote 289: Ibid., 1850, p. 9.]
[Footnote 290: Acts and Resolves of Rhode Island, 1848, p. 12.]
[Footnote 291: Laws of Rhode Island, 1854, p. 22.]
[Footnote 292: Laws of New York, 1840, p. 174.]
[Footnote 293: Laws of Pennsylvania, 1847, p. 206.]
[Footnote 294: Laws of Ohio, 1857, p. 170.]
[Footnote 295: Laws of Ohio, 1858, p. 10.]
[Footnote 296: Laws of Michigan, 1855, p. 415.]
[Footnote 297: Lalor, III. 162.]
[Footnote 298: Hurd, Law of Freedom and Bondage, II. 763; Von Holst, IV.
551; Parker, Personal Liberty Laws.]
[Footnote 299: Phillips, No Slave Hunting in the Old Bay State;
Phillips, Argument against repeal of Personal Liberty Law; Pierce,
Personal Liberty Law, 4; Johnson, Speech on Personal Liberty Law, New
York, 1861.]
[Footnote 300: 36 Cong. 2 Sess., Congressional Globe, Appendix, 2.]
[Footnote 301: Lalor, III. 162.]