complaints on the part of slaveholders, and secure them in the
recovery and possession of their property. The effect of its
provisions upon the South was to arouse slave-owners to greater
activity in the pursuit of their chattels, while in the North the
effect was to increase greatly the determination in the minds of
many to resist the enforcement of the law. Despite the severe
penalties it levelled against those that should be guilty of
shielding the refugee, the expression of sympathy for fugitive
settlers was open and hearty in many quarters; and public meetings
were held by abolitionists to proclaim defiance to the law and
protection to the fugitive. At Lowell, Massachusetts, an immense
Free Soil meeting adopted resolutions inviting former residents of
the city to return from Canada, where they had taken refuge;[718]
at Syracuse, New York, a gathering of all parties declared its
abhorrence of the Fugitive Slave Law, and formed an association or
vigilance committee "so that the Southern oppressors may know that
the people of Syracuse and its vicinity are prepared to sustain one
another in resisting the encroachments of despotism";[719] at Boston
an indignation meeting was held "for the denunciation of the law and
the expression of sympathy and coöperation with the fugitive." Among
the resolutions adopted at this meeting, one advised "the fugitive
slaves and colored inhabitants of Boston and the neighborhood to
remain with us, for we have not the smallest fear that any one of
them will be taken from us and carried off to bondage; and we trust
that such as have fled in fear will return to their business and
homes"; another resolution proposed the appointment of a vigilance
committee "to secure the fugitives and colored inhabitants of
Boston and vicinity from any invasion of their rights by persons
acting under the law."[720] In Ashtabula County, Ohio, a meeting at
Hartsgrove resolved, "that we hold the Fugitive Slave Law in utter
contempt ... and that we will not aid in catching the fugitive, but
will feed him, and protect him with all the means in our power, and
that we will pledge our sympathy and property for the relief of any
person in our midst who may suffer any penalties for an honorable
opposition ... to the requirements of this law."[721] In other
portions also of the free states meetings were held in which the
purpose was avowed to protect fugitive slaves.[722]
[718] Wilson, _Rise and Fall of the Slave Power in America_, Vol.
II, p. 306.
[719] Samuel J. May, _Some Recollections of Our Anti-Slavery
Conflict_, p. 353.
[720] John Weiss, _Life and Correspondence of Theodore Parker_,
Vol. II, p. 94.
[721] Article by the Rev. S. D. Peet, in _History of Ashtabula
County, Ohio_, pp. 33, 34.
[722] "No sooner was the deed done, the Fugitive Slave Act sent
forth to be the law of the land, than outcries of contempt and
defiance came from every free state, and pledges of protection
were given to the colored population. It is not within the scope
of my plan to attempt an account of the indignation meetings that
were held in places too numerous to be even mentioned here." S.
J. May, _Some Recollections of the Anti-Slavery Conflict_, p.
349.
The change of sentiment in the North from passive acquiescence in
the law to active resistance to it is best seen, perhaps, in the
history of the so-called personal liberty laws. The real object of
these statutes was to impair the operation of the national Fugitive
Slave Law, although their proposed object was in most cases to
prevent the removal of free colored citizens to the South under
the claim that they were fugitive slaves. These statutes were
passed by the legislatures of various states during the period of
a little more than thirty years from 1824 to 1858, the greater
number being enacted after the repeal of the Missouri Compromise
in 1854. The first two in the series were those enacted by Indiana
and Connecticut in 1824 and 1838 respectively, and provided that on
appeal fugitives might have a trial by jury. In 1840 Vermont and New
York framed laws granting jury trial, and also providing attorneys
to defend fugitives. In 1842 the Prigg decision gave the occasion
for a new class of statutes; the release of state authorities
from the execution of the Slave Law by the opinion handed down by
Justice Story was taken advantage of in Massachusetts, Vermont,
Pennsylvania and Rhode Island, and the officers of the states were
forbidden from performing the duties imposed by the law of 1793.
The decade from 1850 to 1860 is marked by a fresh crop of these
personal liberty acts, due to the sentiment aroused by the law of
1850 and aggravated by the repeal of the Missouri Compromise. As the
new national law avoided the employment of state officers, state
legislation was now directed in the main to limiting the powers of
the executors of the laws as far as possible, and depriving them
of the facilities of action. Thus, the new laws generally provided
counsel for any one arrested as a fugitive; secured to him a trial
surrounded by the usual safeguards; prohibited the use of state
jails; and forbade state officers to issue writs or give aid to the
claimant. The penalty for the violation of these provisions was a
heavy fine and imprisonment. "Such acts," it is said, "were passed
in Vermont, Connecticut and Rhode Island, in Massachusetts, Michigan
and Maine. Later, laws were also enacted in Wisconsin, Kansas, Ohio
and Pennsylvania. 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."[723]
[723] M. G. McDougall, _Fugitive Slaves_, pp. 65-70, and the
references there given.
Notwithstanding the disposition shown in many parts of the free
states to protect fugitive settlers, the Slave Law of 1850 spread
consternation and distress among them, and caused numbers to leave
the little homes they had established for themselves, and renew
their search for liberty. Perhaps in no community of the North did
fugitive settlers feel themselves more secure than in Boston, the
city of Garrison, Phillips and Parker; here they were gathered
together by the Rev. Leonard B. Grimes, a colored man, who soon
organized a church of fugitive slaves, and such was the feeling of
confidence among them that in 1849 a building was begun for this
unique congregation. Within a few months, however, the new Slave
Law was enacted, and wrung from this band of runaways a cry of
anguish that may be justly regarded as expressing the distress of
the people of this class in all quarters of the free states. At a
meeting of the Boston refugees, held October 5, 1850, an appeal to
the clergy of Massachusetts was issued, in the preamble of which
was embodied the slaves' view of their own situation, and their
pitiful entreaty for help. As "trembling, proscribed and hunted
fugitives ... now scattered through the various towns and villages
of Massachusetts, and momentarily liable to be seized by the strong
arm of government, and hurried back to stripes, tortures and bondage
..." they implored the clergy to "'lift up (their) voices like
a trumpet' against the Fugitive Slave Bill, recently adopted by
Congress...."[724] The church building of the fugitive settlers
"was arrested midway towards its completion, and the members were
scattered in wild dismay. More than forty fled to Canada. One of
their number, Shadrach, was seized, but more fortunate than the
hapless Sims, who had no fellowship with them, he succeeded in
making his escape."[725] An individual case that illustrates the
sudden disaster experienced by numerous households throughout the
North was recorded by the Rev. J. S. C. Abbott, in January, 1852.
The case occurred in Boston in 1851: "A colored girl, eighteen years
of age, a few years ago escaped from slavery at the South. Through
scenes of adventure and peril she found her way to Boston, obtained
employment, secured friends, and became a consistent member of a
Methodist church. She became interested in a very worthy young man,
of her own complexion, who was a member of the same church. They
were soon married. Their home, though humble, was the abode of piety
and contentment.... Seven years passed away; they had two little
boys, one six and the other four years of age. These children, the
sons of a free father, but of a mother who had been a slave, by the
laws of our Southern states were doomed to their mother's fate.
These Boston boys, born beneath the shadow of Faneuil Hall, the
sons of a free citizen of Boston, and educated in the Boston free
schools, were, by the compromises of the Constitution, admitted to
be slaves, the property of a South Carolinian planter. The Boston
father had no right to his own sons. The law, however, had long been
considered a dead letter. The Christian mother, as she morning and
evening bowed with her children in prayer, felt that they were safe
from the slave-hunter, surrounded as they were by the churches, the
schools, and the free institutions of Massachusetts.
[724] Scrap-book of clippings, circulars, etc., presented to the
Boston Public Library by Mrs. L. L. Parker.
[725] C. E. Stevens, _Anthony Burns, A History_, 1856, p. 208.
"The Fugitive Slave Law was enacted. It revived the hopes of the
slave-owners. A young, healthy, energetic mother, with two fine
boys, was a rich prize.... Good men began to say: 'We must enforce
this law; it is one of the compromises of the Constitution.'
Christian ministers began to preach: 'The voice of the law is the
voice of God. There is no higher rule of duty.'... The poor woman
was panic-stricken. Her friends gathered around her and trembled
for her. Her husband was absent from home, a seaman on board one
of our Liverpool packets. She was afraid to get out of doors lest
some one from the South should see her and recognize her. One day,
as she was going to the grocery for some provisions, her quick and
anxious eye caught a glimpse of a man prowling around, whom she
immediately recognized as from the vicinity of her old home of
slavery. Almost fainting with terror, she hastened home, and, taking
her two children by the hand, fled to the house of a friend. She and
her trembling children were hid in the garret. In less than one hour
after her escape, the officer with a writ came for her arrest.
"... At midnight, her friends took her in a hack, and conveyed her,
with her children, to the house of her pastor. A prayer-meeting
had been appointed there, at that hour, in behalf of the suffering
sister. A small group of stricken hearts were assembled....
Groanings and lamentations filled the room. No one could pray....
Other fugitives were there, trembling in view of a doom more
dreadful to them than death. After an hour of weeping ... they took
this Christian mother and her children in a hack, and conveyed them
to one of the Cunard steamers, which fortunately was to sail for
Halifax the next day.... Her brethren and sisters of the church
raised a little money from their scanty means to pay her passage,
and to save her for a few days from starving, after her first
arrival in the cold land of strangers. Her husband soon returned to
Boston, to find his home desolate, his wife and his children exiles
in a foreign land.
"I think that this narrative may be relied upon as accurate. I
received the facts from the lips of one, a member of the church, who
was present at that midnight 'weeping-meeting,' before the Lord.
Such is slavery in Boston, in the year 1852. Has the North nothing
to do with slavery?"[726]
[726] Quoted by F. B. Sanborn, in his _Life of Dr. S. G. Howe,
the Philanthropist_, pp. 237, 238, 239. Similar stories are
related by Lydia Maria Child, in her _Life of Isaac T. Hopper_,
pp. 455-458.
In localities nearer to slave territory than Boston, and in places
where anti-slavery sentiment was perhaps less pronounced, it may be
supposed that terror was not less prevalent among fugitive settlers.
The members of the colored community near Sandy Lake in northwestern
Pennsylvania, many of whom had purchased small farms and had them
partly paid for, sold out or gave away their farms and went to
Canada in a body.[727] The sudden disappearance of refugees from
their habitations in various other places as soon as the character
of the new law became noised abroad was a phenomenon the cause of
which was unmistakable. Of the many that thus vanished from their
accustomed haunts,[728] Josiah Henson, writing in 1852, said:
"Some have found their way to England, but the mass are flying to
Canada, where they feel themselves secure. Already several thousands
have gone thither, and have added considerably to the number
already settled, or partially settled, in that part of the British
dominions...."[729] As Mr. Henson was a worker among the refugees in
Canada he was in a position to speak from his personal knowledge,
and his testimony is sustained by that of the Rev. Anthony Bingey,
an escaped slave, who helped receive fugitives at Amherstburg,
Ontario, one of the chief landing-places of the negro emigrants from
the United States. Mr. Bingey states that after the Fugitive Slave
Law took effect the runaways came there "by fifties every day, like
frogs in Egypt." Before that time "many had settled in the States,
but after the Fugitive Slave Law they could be taken, so they came
in from all parts."[730] Sumner estimated that, altogether, "as many
as six thousand Christian men and women, meritorious persons,--_a
larger band than that of the escaping Puritans_,--precipitately
fled from homes which they had established" to British soil. _The
Liberator_ published a statement, made in February, 1851, that the
African Methodist and Baptist churches of Buffalo, New York, had
both lost a large number of members, the loss of the former being
given as one hundred. The Baptist church of the colored people of
Rochester, in the same state, out of a membership of one hundred and
fourteen, lost one hundred and twelve, including the pastor. The
African Baptist church of Detroit lost eighty-four members at this
time.[731]
[727] Letter of John F. Hogue, Greenville, Pa., Nov. 25, 1895;
letter of the Rev. James Lawson, Franklin, Pa., Nov. 25, 1895.
[728] _Life of William Lloyd Garrison_, Vol. III, p. 302. See
also Rhodes's _History of the United States_, Vol. I, p. 198.
[729] _The Life of Josiah Henson, formerly a Slave, as narrated
by Himself_, pp. 97, 98, 99.
[730] Conversation with Mr. Bingey, Windsor, Ont., July 31, 1896.
[731] _Life of Garrison_, Vol. III, p. 302; also foot-note, pp.
302, 303.
One must not imagine, however, that all the fugitives migrated
beyond the borders of the free states. No doubt a considerable
number, more daring than the rest,[732] or in some way favored
by circumstances, chose to remain and run the risk of discovery.
Colonel Thomas Wentworth Higginson asserts that "For many years
fugitive slaves came to Massachusetts and remained, this lasting
until the Fugitive Slave Law was passed in 1850, and longer. Even
after that period we tried to keep them in Worcester, where I
then lived, it being a strong anti-slavery place, and they often
stayed."[733] Some of the fugitives that were induced to move by
the Slave Law only passed from one state into another, instead of
continuing their journey to regions beyond the jurisdiction of a
United States commissioner. Of a company of blacks dwelling near
the home of Elijah F. Pennypacker in Chester County, Pennsylvania,
at the time of the enactment of the law of 1850, it is said that
while some went to Canada, some went to New York and some to
Massachusetts.[734] It was noted above that the new church of the
fugitives of Boston was stopped midway in the process of building
by the promulgation of the act, but it is significant that the
structure was completed soon after. Evidently not all of the
refugees departed from the city of their adoption. It is related
that "When the first fury of the storm had blown over, Mr. Grimes
set himself with redoubled energy to repair the wastes that had
been made. He collected money from the charitable, and purchased the
members of his church out of slavery, that they might return without
fear to the fold. He made friends among the rich, who advanced
funds for the completion of his church. At length it was finished,
and, as if for an omen of good, was dedicated on the first day when
Burns stood for trial before Commissioner Loring."[735] Runaways
entering the free states for the first time after the subsidence
of the paroxysm of fear among their fellows sometimes remained in
neighborhoods where the conditions were supposed to be favorable to
their safety. Some of these were never disturbed, and consequently
never went to Canada at all.
[732] "Some of the boldest chose to remain, and armed themselves
to defend their freedom, instinctively calculating that the
sight of such an exigency would make the Northern heart beat
too rapidly for prudence!" Weiss, _Life and Correspondence of
Theodore Parker_, Vol. II, p. 92.
[733] Letter of Mr. Higginson, Cambridge, Mass., Feb. 5, 1894.
[734] R. C. Smedley, _History of the Underground Railroad_, p.
210.
[735] C. E. Stevens, _Anthony Burns, A History_, p. 208. In a
foot-note it is said, "The church is a neat and commodious brick
structure, two stories in height, and handsomely finished in the
interior. It will seat five or six hundred people. The whole
cost, including the land, was $13,000, of which, through the
exertion of Mr. Grimes, $10,000 have already (1856) been paid...."
Among the fugitive settlers in the Northern states there were
some at least that became widely known among abolitionists and
others as active agents of the Underground Railroad. Frederick
Douglass was one of these, and during his residence in New Bedford,
Massachusetts, and later during his residence in Rochester, New
York, he was able to help many runaways. The Rev. J. W. Loguen, who
became a bishop of the African Methodist Church about 1869, settled
in Syracuse, New York, in 1841, and became immediately one of the
managers of secret operations there. In his hospitable home, Samuel
J. May relates, was fitted up an apartment for fugitive slaves,
and, for years before the Emancipation Act, scarcely a week passed
without some one, in his flight from slavedom to Canada, enjoyed
shelter and repose at Elder Loguen's."[736] Lewis Hayden, for
many years a prominent citizen of Boston, who owed his liberty to
the self-sacrificing efforts of the Rev. Calvin Fairbank and Miss
Delia Webster in September, 1844,[737] made a practice of harboring
slaves in his house, number 66 Phillips Street. "Some there are,"
a recent writer declares, "who well remember when William Craft was
in hiding here from the slave-catchers, and how Lewis Hayden had
placed two kegs of gunpowder on the premises, resolved to blow up
his house rather than surrender the fugitive. The heroic frenzy of
the resolute black face, as with match in hand Hayden stood waiting
the man-stealers, those who saw it declare that they can never
forget."[738]
[736] _Some Recollections of our Anti-Slavery Conflict_, pp. 202,
203.
[737] _Rev. Calvin Fairbank During Slavery Times_, pp. 46, 48, 49.
[738] Article by A. H. Grimké, on "Anti-Slavery Boston," in _The
New England Magazine_, December, 1890, p. 458.
William Wells Brown, who distinguished himself as an anti-slavery
lecturer in this country and England, rendered considerable service
to fellow-fugitives shortly after his escape from Missouri about
1840.[739] Securing employment on a Lake Erie steamboat, he was able
to provide the means of transportation for many runaways across the
lake. As the boat frequently touched at Cleveland on its trips to
and fro between Buffalo and Detroit, Mr. Brown made an arrangement
with some Cleveland friends to furnish transportation, which was
done without charge, for any negroes they might wish to send to
Canada. The result was that delegations of anxious refugees were
often taken aboard at the Cleveland wharf. Brown engaged in this
service in the early forties, and his companies were therefore
small, but he sometimes gave passage to four or five at one time.
"In the year 1842," he says, "I conveyed, from the first of May
to the first of December, sixty-nine fugitives over Lake Erie to
Canada. In 1843 I visited Malden, in upper Canada, and counted
seventeen in that small village whom I had assisted in reaching
Canada."[740] John W. Jones, a respected citizen of Elmira, New
York, made his way in 1844 from Virginia to the city where he
still lives. During the following year he succeeded in aiding
two younger brothers to join him, and thereafter he continued,
in coöperation with Mr. Jervis Langdon and other abolitionists
of Elmira, to succor his brethren in their search for places of
refuge. After the construction of the Northern Central Railroad
through Elmira, Mr. Jones effected an arrangement with some of
the employees of that road by which his friends could be carried
through to the Canadian border in baggage-cars. At the same time he
was in regular correspondence with William Still, the agent of the
central underground station at Philadelphia, who frequently sent him
companies of passengers requiring immediate transportation.[741]
John H. Hooper, a fugitive from the Eastern Shore of Maryland and
an acquaintance there of Fred Douglass, kept a station at Troy,
New York, where he settled.[742] Louis Washington, who fled from
Richmond, Virginia, to Columbus, Ohio, became a conductor of the
Underground Road at that point. Mr. James Poindexter, a well-known
colored clergyman of Columbus, knew Washington intimately, and
testifies that he had teams and wagons with which he conveyed
the midnight pilgrims on their way.[743] There are other cases
of fugitive settlers that became members of the large company of
underground operators. But a sufficient number have been mentioned
to indicate that they were not rare. The first and the last of the
seven named did not continue long in the status of escaped slaves.
Frederick Douglass secured his liberty in a legal way through the
payment by English friends of the sum of $750 to his master. Louis
Washington purchased his own freedom. The other five, so far as
known, were never relieved by the payment of money from the claims
of their masters. Most, if not all, of these men remained in the
Northern states after the passage of the Fugitive Slave Law of 1850.
[739] S. J. May, _Some Recollections of our Anti-Slavery
Conflict_, p. 289.
[740] _Narrative of William W. Brown, A Fugitive Slave_, pp. 106,
107, 108.
[741] Letters of Mrs. Susan Crane, Elmira, N.Y.; letters of John
W. Jones, Elmira, N.Y.; see also Still, _Underground Railroad
Records_, p. 530.
[742] Letters of Mr. Martin I. Townsend, Troy. N.Y., Sept. 4,
1896, and April 3, 1897.
[743] Conversation with Mr. Poindexter, Columbus, O., in the
summer of 1895.
CHAPTER IX
PROSECUTIONS OF UNDERGROUND RAILROAD MEN
The aversion to a law for the rendition of fugitive slaves that
early manifested itself in the North was perhaps foreshadowed in the
hesitating manner in which the question was dealt with by Congress.
The original demand for legislation was caused by the activity
of kidnappers in Pennsylvania; but the first bill, reported from
committee to the House in November, 1791, was dropped for some
reason not now discoverable. At the end of March in the following
year a committee of the Senate was appointed to consider the
matter, but it accomplished nothing. At the beginning of the next
session a second Senate committee was chosen, and from this body
a bill emanated. This bill proved to be unsatisfactory, however,
and after the committee had been remodelled by the addition of two
new members the bill was recommitted with instructions to amend.
With some slight change the measure proposed by the committee was
adopted by the Senate, January 18; and after an interval of nearly
three weeks the House passed it with little or no debate, by a vote
of forty-eight to seven. Thus for nearly a year and a quarter the
subject was under the consideration of Congress before it could be
embodied in a bill and sent to the executive for his signature. On
February 12, 1793, President Washington signed this bill and it
became a law.[744]
[744] M. G. McDougall, _Fugitive Slaves_, pp. 17, 18.
The object of the law was, of course, to enforce the constitutional
guarantee in regard to the delivery of fugitives from service to
their masters. An analysis of the law will show that forcible
seizure of the alleged fugitive was authorized; that the decision of
the magistrate before whom he was to be taken was allowed to turn on
the testimony of the master, or the affidavit of some magistrate
in the state from which he came; and that trial by jury was denied.
Persons attempting to obstruct the law by harboring or concealing a
fugitive slave, resisting his arrest, or securing his rescue, were
liable to a fine of five hundred dollars for the benefit of the
claimant, and the right of action on account of these injuries was
reserved to the claimant.[745]
[745] _Statutes at Large_, I, 302-305.
[Illustration: SALMON P. CHASE, of OHIO,
known as "attorney-general for fugitive slaves," on account of his
frequent appearance as counsel in fugitive slave cases.]
[Illustration: THOMAS GARRETT, of WILMINGTON, DELAWARE,
who aided 2700 runaways, and paid $8000 in fines for his violations
of the slave laws.]
The exclusive regard for the rights of the owner exhibited in these
provisions was fitted to stir the popular sense of justice in
the Northern states, most of which had already ranged themselves
by individual action on the side of liberty. Persons moved by
the appeals of the hunted negro to transgress the statute would
naturally try to avoid its penalties by concealment of their acts,
and this we know was what they did. The whole movement denominated
the Underground Railroad was carried on in secret, because only
thus could the fugitives, in whose behalf it originated, and their
abettors, by whom it was maintained, be secure from the law. When
through mischance or open resistance, as sometimes happened, an
offender against the law was discovered and brought to trial, the
case was not allowed to progress far before the Fugitive Recovery
Act itself was assailed vigorously by the counsel for the defendant.
The grounds of attack included the absence of provision for jury
trial, the authority of the claimant or his agent to arrest without
a warrant, the antagonism between state and federal legislation, the
supposed repugnancy of the law of 1793 to the Ordinance of 1787,
the denial of the power of Congress to legislate on the subject of
fugitive slaves, and the question as to the responsibility for the
execution of the law. Nearly if not all of these disputed points
were involved in the great question as to the constitutionality
of the congressional act, a question that kept working up through
the successive decisions of the courts to irritate and disturb the
peace between the sections, that the fugitive clause in the federal
Constitution, the act of 1793 itself, and the judicial affirmations
following in their train were intended to promote.
The omission of a provision from the law of Congress securing trial
by jury to the alleged fugitive was at once remarked by the friends
of the bondman, and caused the law to be denounced in the court-room
as worthy only of the severest condemnation.[746] As early as
1819, in the case of Wright _vs._ Deacon, tried before the Supreme
Court of Pennsylvania, it was urged that the supposed fugitive was
entitled to a jury trial, but the arguments made in support of the
claim have not been preserved.[747] The question was presented in
several subsequent cases of importance arising under the law of
1793, namely, Jack _vs._ Martin, in 1835,[748] Peter, _alias_ Lewis
Martin, about 1837,[749] and State _vs._ Hoppess, in 1845.[750] From
the reports of these cases one is not able to gather much in the
way of direct statement showing what were the grounds taken for
the advocacy of trial by jury in such cases, but the indications
that appear are not to be mistaken. In all of these cases it seems
to have been insisted that the law of 1793 failed to conform to
the constitutional requirement on this point; and in State _vs._
Hoppess it is distinctly stated that the law provided for a trial of
the most important right without a jury, contrary to the amendment
of the Constitution declaring that "In suits at common law, where
the value shall exceed twenty dollars, the right of trial by jury
shall be preserved...";[751] and that the act also authorized the
deprivation of a person of his or her liberty contrary to another
amendment, which declares that no person shall be "deprived of life,
liberty, or property, without due process of law."[752] In Jack
_vs._ Martin, as probably in the other cases, the obvious objection
seems to have been made that the denial of the jury contributed to
make easy the enslavement of free citizens. The courts, however, did
not sustain these objections; thus, for example, in the last case
named, Judge Nelson, while admitting the defect of the law, decided
in conformity with it,[753] and the claims upon the constitutional
guarantees, asserted in behalf of the supposed fugitive, were also
overruled, a reason given in the case of Wright _vs._ Deacon being
that the evident scope and tenor of both the Constitution and the
act of Congress favored the delivery of the fugitive on a summary
proceeding without the delay of a formal trial in a court of common
law. Another reason offered by the court in this case, and repeated
by the Circuit Court of the United States for the Southern District
of New York in the matter of Peter, _alias_ Lewis Martin, was that
the examination under the federal slave law was only preliminary,
its purpose being merely to determine the claimant's right to
carry the fugitive back to the state whence he had fled, where the
question of slavery would properly be open to inquiry.
[746] Professor Eugene Wambaugh, of the Law School of Harvard
University, in a letter to the author, comments as follows on
the source of the injustice wrought by the Fugitive Slave acts:
"The difficulty lay in the initial assumption that a human being
can be property. Grant this assumption, and there follow many
absurdities, among them the impossibility of framing a Fugitive
Slave Law that shall be both logical and humane. Human beings
are entitled to a trial of the normal sort, especially in a case
involving the liability of personal restraint. Chattels, however,
are entitled to no trial at all; and if a chattel be lost or
stolen, the owner may retake it wherever he finds it, provided he
commits no breach of the peace. (3 Blackstone's _Commentaries_,
4.) If slaves had been treated as ordinary chattels, there
could have been no trial as to the ownership of them, unless,
indeed, there were a dispute between competing claimants. There
would have been, however, the fatal objection that thus a free
man--black, mulatto, or white--might be enslaved without a
hearing. Here, then, is a puzzle. If the man is a slave, he
is entitled to no trial at all. If he is free, he is entitled
to a trial of the most careful sort, surrounded with all the
safeguards that have been thrown up by the law. When there is
such a dilemma, is it strange that there should be a compromise?
The Fugitive Slave Laws really were a compromise; for in so far
as they provided for an abnormal and incomplete trial, a hearing
before a United States Commissioner, simply to determine rights
as between the supposed slave and the supposed master, they
conceded the radical impossibility of following out logically
the supposition that human beings can be chattels, and, in so
far as they denied to the supposed slave the normal trial, they
assumed in advance that he was a slave. I need not write of the
dilemma further. A procedure intermediate between a formal trial
and a total denial of justice was probably the only solution
practicable in those days; but it was an illogical solution, and
the only logical solution was emancipation."
[747] 5 _Sergeant and Rawle's Reports_, 63. See Appendix B, p.
368.
[748] 14 _Wendell's Reports_, 514. See Appendix B, p. 368.
[749] In the Circuit Court of the United States for the Southern
District of New York. 2 _Paine's Reports_, 352.
[750] 2 _Western Law Journal_, 282.
[751] Amendments, Article VII.
[752] _Ibid._, Article V.
[753] _12 Wendell's Reports_, 315-324.
The mode of arrest permitted by the law was a cause of irritation
to the minds of abolitionists throughout the free states, and
became one of the points concerning which they joined issue in
the courts. The law empowered the claimant to seize the fugitive
wheresoever found for the purpose of taking him before an officer
to prove property. The circumstances that quickened the sympathy
of a community into active resistance to this feature of the law
are fully illustrated in one of the earliest cases coming before
a high court, in which the question of seizure was brought up for
determination. The case is that of Commonwealth vs. Griffith, which
was tried in the Supreme Judicial Court of Massachusetts, at the
October term in 1823. From the record of the matter appearing in the
law-books, one gathers that a slave, Randolph, who had fled from his
master in Virginia, found a refuge in New Bedford about 1818, where
by his thrift he acquired a dwelling-house. After several years
he was discovered by Griffith, his owner's agent, and was seized
without a warrant or other legal process, although the agent had
taken the precaution to have a deputy sheriff present. The agent's
intention was to take the slave before a magistrate for examination,
pursuant to the act of 1793.[754] New Bedford was a Quaker town,
and the slave seems not to have lacked friends, for the agent was
at once indicted for assault and battery and false imprisonment.
The action thus begun was prosecuted in the name of the state,
under the direction of Mr. Norton, the attorney-general. As against
the act of Congress the prosecution urged that the Constitution
did not authorize a seizure without some legal process, and that
such a seizure would manifestly be contrary to the article of the
amendments of the Constitution that asserted the right of the people
to be secure in their persons, houses, papers and effects, against
unreasonable searches and seizures.[755] The protest that if the
law was constitutional any citizen's house might be invaded without
a warrant under pretence that a negro was concealed there called
forth the interesting remark from Chief Justice Parker that a case
arising out of a constable's entering a citizen's house without
warrant in search of a slave had come before him in Middlesex, and
that he had held the act to be a trespass. Nevertheless, the court
sustained the law on the ground that slaves were not parties to the
Constitution, and that the amendment referred to had relation only
to the parties.[756]
[754] _2 Pickering's Reports_, 12. See Appendix B, p. 368.
[755] Amendments, Article IV; 2 _Pickering's Reports_, 15, 16.
[756] 2 _Pickering's Reports_, 19.
The question of arrest without warrant emerged later in several
other cases; for example, Johnson vs. Tompkins (1833),[757] the
matter of Peter, _alias_ Lewis Martin (1837),[758] Prigg _vs._
Pennsylvania (1842),[759] and State _vs._ Hoppess (1845).[760] The
line of objection followed by those opposing the law in this series
will be sufficiently indicated by the arguments presented in the
Massachusetts case of 1823, treated above. The tribunals before
which the later suits were brought did not depart from the precedent
set in the early case, and the act of 1793 was invariably justified.
In Johnson _vs._ Tompkins the court pointed out that under the
law the claimant was not only free to arrest his fugitive without
a warrant, but that he was also free to do this unaccompanied by
any civil officer, although, as was suggested, it was the part of
prudence to have such an officer to keep the peace.[761] In the
famous case of Prigg _vs._ Pennsylvania, the Supreme Court of the
United States went back of the law of Congress to the Constitution
in seeking the source of the master's right of recaption, and laid
down the principle that "under and in virtue of the Constitution,
the owner of a slave is clothed with entire authority, in every
state in the Union, to seize and recapture his slave, whenever he
can do it without any breach of the peace, or any illegal violence.
In this sense and to this extent this clause of the Constitution
may properly be said to execute itself, and to require no aid from
legislation, state or national."[762]
[757] In the Circuit Court of the United States for the Eastern
District of Pennsylvania. 1 _Baldwin's Circuit Court Reports_, p.
571 et seq. See Appendix B, p. 368.
[758] 2 _Paine's Reports_, 350. See Appendix B, p. 369.
[759] 16 _Peters' Reports_, 613.
[760] 2 _Western Law Journal_, 282. See Appendix B, p. 371.
[761] 1 _Baldwin's Circuit Court Reports_, 571; Hurd, _Law of
Freedom and Bondage_, Vol. II, p. 444.
[762] 16 _Peters' Reports_, 613.
For many years before Prigg's case various states in the North
had considered it to be within the province of their legislative
powers to enact laws dealing with the subject of fugitive slaves.
It would be beside our purpose to enter here upon an examination
of these statutes, but it is proper to say that the variety of
particulars in which these differed from the law concerning the same
subject enacted by Congress prepared the way for a series of legal
contests in regard to the question, whether the power to legislate
in relation to fugitive slaves could be exercised properly by the
states as well as by the federal government. This issue presented
itself in at least three notable cases under the law of 1793: these
were Jack _vs._ Martin (1835), Peter, _alias_ Lewis Martin (1837),
and Prigg _vs._ Pennsylvania (1842). The decisions reached in the
first and last cases are of especial significance, because, in the
first, the question of concurrent jurisdiction constituted the
subject of main interest for the Supreme Court of New York, the
court to which the case had been taken from an inferior tribunal;
while in the last case, the importance attaches to the conclusive
character of an adjudication pronounced by the most exalted court of
the nation.
In Jack _vs._ Martin the action was begun under the New York
law of 1828 for the recovery of a fugitive from New Orleans.
Notwithstanding the fact that this law authorized the seizure and
return of fugitives to their owners, and that in the case before
us, as occurred also in the case of Peter, _alias_ Lewis Martin,
the negro was adjudged to his claimant, the law of the state was
considered invalid, because the right of legislation on the subject
was held to belong exclusively to the national government.[763]
[763] 12 _Wendell's Reports_, 311, 316-318.
In Prigg's case[764] a statute of Pennsylvania, passed in 1826,
and bearing the suggestive title, "An act to give effect to the
provisions of the Constitution of the United States relative to
fugitives from labor, for the protection of free people of color,
and to prevent kidnapping," was violated by Edward Prigg in seizing
and removing a fugitive slave-woman and her children from York
County, Pennsylvania, into Maryland, where their mistress lived.
In the argument made before the Supreme Court in support of the
state law, the authority of the state to legislate was urged on the
ground that such authority was not prohibited to the states nor
expressly granted "in terms" to Congress;[765] that the statute of
Pennsylvania had been enacted at the instance of Maryland, and with
a view to giving effect to the constitutional provision relative
to fugitives;[766] that the states could best determine how the
duty of delivery enjoined upon them should be performed so as to
be made acceptable to their citizens;[767] and that the act of
Congress was silent as to the rights of negroes wrongfully seized
and of the states whose territory was entered and laws violated
by persons acting under pretext of right.[768] The Supreme Court
did not sustain these objections. A majority of the judges agreed
with Justice Story in the view that Congress alone had the power
to legislate on the subject of fugitive slaves. The reasons given
for this view were two: first, the constitutional source of the
authority, by virtue of which the force of an act of Congress
pervades the whole Union uncontrolled by state sovereignty or state
laws, and secures rights that otherwise would rest upon interstate
comity and favor; and, secondly, the necessity of having a uniform
system of regulations for all parts of the United States, by
which the differences arising from the varieties of policy, local
convenience and local feelings existing in the various states can
be avoided. The right to retake fugitive slaves and the correlative
duty to deliver them were to be "coextensive and uniform in remedy
and operation throughout the whole Union." While maintaining that
the right of legislation in this matter was exclusively vested in
Congress, the court insisted that it did not thereby interfere with
the police power of the several states, and that by virtue of this
power the states had the authority to arrest and imprison runaway
slaves, and to expel them from their borders, just as they might do
with vagrants, provided that in exercising this jurisdiction the
rights of owners to reclaim their slaves secured by the Constitution
and the legislation of Congress were not impeded or destroyed.[769]
[764] See Appendix B, p. 370.
[765] 16 _Peters' Reports_, 579.
[766] _Ibid._, 588-590.
[767] _Ibid._, 595.
[768] _Ibid._, 602.
[769] _Ibid._, 612-617.
As the friends of runaway slaves sometimes sought to oppose to the
summary procedure of the federal law the processes provided by
state laws in behalf of fugitives, so in their endeavor to overthrow
the act of 1793, they occasionally appealed to the Ordinance for
the government of the Northwest Territory. The Ordinance, it will
be remembered, contained a clause prohibiting slavery throughout
the region northwest of the Ohio River, and another authorizing
the surrender of slaves escaping into this territory.[770] The
abolitionists took advantage of these provisions under certain
circumstances, in the hope of securing the release of those that
had fallen into the eager grasp of the congressional act, and at
the same time of proving the incompatibility of this measure with
the Ordinance. The attempt to do these things was made in three
well-known cases, which came before the courts about 1845. The first
of these was State _vs._ Hoppess, tried before the Supreme Court of
Ohio on the circuit, to secure the liberation of a slave that had
fled from his keeper, but was afterwards recaptured;[771] the second
was Vaughan _vs._ Williams, adjudicated in the Circuit Court of the
United States for the District of Indiana, a case originating in an
action against the defendant for rescuing certain fugitives;[772]
and the third was Jones _vs._ Van Zandt, which was carried to the
Supreme Court of the United States and there decided. This last case
grew out of the aid given nine runaways by Mr. Van Zandt, through
which one of them succeeded in escaping.[773] The arguments, based
upon the Ordinance, that were advanced in these cases are adequately
set forth in the report of the first case, a report prepared by
Salmon P. Chase, subsequently Chief Justice of the Supreme Court
of the United States. These arguments, two in number, were as
follows: first, the Ordinance expressly prohibited slavery, and
thereby effected the immediate emancipation of all slaves in the
Territory; and, secondly, the clause in the Ordinance providing for
the surrender of fugitives applied only to persons held to service
in the _original_ states.[774]
[770] See Chap. II, pp. 28, 32.
[771] 2 _Western Law Journal_, 279-293.
[772] 3 _Western Law Journal_, 65-71; also, 3 _McLean's Reports_,
530-538.
[773] 5 _Howard's Reports_, 215 _et seq._
[774] 2 _Western Law Journal_, 281, 283; 3 _McLean_, 530.
The opinions given by the courts in the cases under consideration
failed to support the idea of the irreconcilability existing between
the law of 1793 and the Ordinance. The Supreme Court of Ohio
declared that under the federal Constitution the right of recaption
of fugitive slaves was secured to the new states to the same extent
that it belonged to the original states.[775] The Circuit Court of
the United States took virtually the same stand by pointing out
that a state carved from the Northwest Territory assumed the same
constitutional obligations by entering the Union that the original
thirteen states had earlier assumed, and that where a conflict
occurred the Constitution was paramount to the Ordinance.[776]
Finally, the Supreme Court at Washington declared that the clause
in the Ordinance prohibiting slavery applied only to people living
within the borders of the Northwest Territory, and that it did not
impair the rights of those living in states outside of this domain.
Wheresoever the Ordinance existed the states preserved their own
laws, as well as the Ordinance, by forbidding slavery; the provision
of the Constitution and the act of Congress looking toward the
delivery of fugitive slaves did not interfere with the laws of the
free states as to their own subjects. The court therefore held that
there was no repugnance between the act and the Ordinance.[777]
[775] 2 _Western Law Journal_, 288.
[776] 3 _McLean's Reports_, 532; 3 _Western Law Journal_, 65.
[777] 5 _Howard's Reports_, 230, 231.
Among the various objections raised in the court-room against the
law of 1793, the denial of the power of Congress to legislate on the
subject of fugitive slaves was one that should not be overlooked.
It commanded the attention of the bench in at least two important
cases, both of which have been mentioned in other connections,
namely, Peter, _alias_ Lewis Martin (1837), and State _vs._ Hoppess
(1845). In both of these cases the denial of legislative authority
was based upon the doctrine that there had been no delegation of the
necessary power to Congress by the Constitution. The fugitive slave
clause in the Constitution, it was said in the report of the second
case, prepared by Mr. Chase, granted no power at all to Congress,
but was "a mere clause of compact imposing a duty on the states
to be fulfilled, if at all, by state legislation."[778] However
prevalent this view may have been in the Northern states,--and the
number of state laws dealing with the subject of fugitive slaves
indicates that it predominated,--neither the Circuit Court of the
United States for the Southern District of New York in the earlier
case, nor the Supreme Court of Ohio in the later, were willing
to subscribe to the doctrine. On the contrary, both asserted the
power of Congress to pass laws for the restoration of runaway
slaves, on the ground that the creation of a duty or a right by the
Constitution is the warrant under which Congress necessarily acts in
making the laws needful to enforce the duty or secure the right.[779]
[778] 2 _Paine's Reports_, 354; 2 _Western Law Journal_, 282.
[779] 2 _Paine's Reports_, 354, 355; also, 2 _Western Law
Journal_, 289.
The outcome of the judicial examination in the high courts of
the various points thus far considered was wholly favorable to
the constitutionality of the law of 1793. The one case within
the category of great cases in which that law was decided to
be unconstitutional in any particular was that of Prigg _vs._
Pennsylvania. By the law of 1793 state and local authorities
were empowered to take cognizance of fugitive slave cases
together with judges holding their appointments from the federal
government.[780] In the hearing given the case before the Supreme
Court at Washington, in 1842, Mr. Johnson, the attorney-general of
Pennsylvania, cited former decisions of the Supreme Court to show
that in so far as the congressional law vested jurisdiction in
state officers it was unconstitutional and void.[781] The court's
answer was momentous and far-reaching. While the law was declared
to be constitutional in its essential features, it was asserted
that it did not point out any state functionaries, or any state
actions, to carry its provisions into effect. The states could not,
therefore, so the court decided, be compelled to enforce them;
and any insistence that the states were bound to provide means
for the performance of the duties of the national government,
nowhere delegated or entrusted to them by the Constitution,
would bear the appearance of an unconstitutional exercise of the
interpretative power.[782] As the decision in the Prigg case
carried the weight of great authority, and became a precedent for
all future judgments,[783] the relief it afforded state officers
from distasteful functions was soon accepted by many states, and
they enacted laws forbidding their magistrates to issue warrants
for the arrest or removal of fugitive slaves.[784] In consequence
of this manifest disinclination on the part of the Northern states
to restore to Southern masters their escaped slaves, the federal
government was induced to make more effective provision for the
execution of the Constitution in this particular. Such provision was
embodied in the second Fugitive Slave Law, passed as a part of the
Compromise of 1850.
[780] See Section 3 of the act, _Statutes at Large_, I, 302-305.
[781] 16 _Peters' Reports_, 598.
[782] _16 Peters' Reports_, 608, 622. See also Marion G.
McDougall's _Fugitive Slaves_, pp. 108, 109.
[783] M. G. McDougall's _Fugitive Slaves_, p. 28.
[784] See Chap. IX, pp. 245, 246, and Chap. X, p. 337.
That the new law was not intended to extinguish the old is apparent
from the title assigned it, which read: "An Act to amend, and
supplementary to, the Act entitled 'An Act respecting Fugitives
from Justice, and Persons escaping from the service of their
Masters, ..."[785] Its evident purpose was to increase the facilities
and improve the means for the recovery of fugitives from labor.
To this end it created commissioners, who were to have authority,
like the judges of the circuit and district courts of the United
States, to issue warrants for the apprehension of runaway slaves,
and to grant certificates for the removal of such persons back to
the state or territory whence they had escaped. All cases were to
be heard in a summary manner; the testimony of the alleged fugitive
could not be received in evidence; and the fee of the commissioner
or judge was to be ten dollars when the decision was in favor of
the claimant, but only five dollars when it was unfavorable. The
penalties created by the new law were more rigorous than those
imposed by the old. A fine not to exceed a thousand dollars and
imprisonment not to exceed six months constituted the punishment
for harboring a runaway or aiding in his rescue, and the party
injured could bring suit for civil damages against the offender in
the sum of one thousand dollars for each fugitive lost through his
interference. If the claimant apprehended a rescue, the officer
making the arrest could be required to retain the fugitive in his
custody for the purpose of removing him to the state whence he had
fled. The refusal of the officer to obey and execute the warrants
and precepts issued under the provisions of the law laid him liable
to a fine of a thousand dollars for the benefit of the claimant;
and the escape of a fugitive from his custody, whether with his
assent or without it, made him liable to a prosecution for the
full value of the labor of the negro thus lost. Ample security
from such disaster was intended to be provided for the marshal and
his deputies by the clause authorizing them to summon to their aid
the bystanders, or posse comitatus, when necessary, and all good
citizens were commanded to respond promptly with their assistance.
In removing a fugitive back to the state from which he had escaped,
when an attempt at rescue was feared, the marshal in charge was
commanded to employ as many persons as he deemed necessary to
resist the interference. The omission of the new law to mention any
officers appointed by the states is doubtless traceable, as is the
clause establishing commissionerships, to the ruling in the decision
of Prigg's case that state officers could not be forced to execute
federal legislation.
[785] _Statutes at Large_, IX, 462.
It will be remembered that the decision in the Prigg case also
contained a ruling that acknowledged the right of the claimant to
seize and remove the alleged fugitive, wheresoever found, without
judicial process. It has been suggested recently that this part of
the decision, denominated the most obnoxious part, was avoided in
the law of 1850.[786] But the language of the new law no more denied
this right than the language of the old bestowed it. In both cases
equally the claimant seems to have enjoyed the right of private
seizure and arrest without process, but for the purpose of taking
the supposed fugitive before the proper official.[787] So far as
the language of the statute was concerned the Prigg decision was
quite as possible under the later as under the earlier law. It was
the language of the Constitution upon which this part of the famous
decision was made to rest, and that, it needs scarcely be said,
continued unchanged during the period with which we are concerned.
[786] Henry W. Rogers, Editor, _Constitutional History of the
United States as seen in the Development of American Law_,
Lecture III, by George W. Biddle, p. 152.
[787] Section 3 of the law of 1793 provided that "the person to
whom such labour or service may be due, his agent or attorney,
is hereby empowered to seize and arrest such fugitive from
labour, and to take him or her before any judge of the circuit
or district courts of the United States, ... within the state,
or before any magistrate of a county (etc.) ... wherein such
seizure ... shall be made, and upon proof to the satisfaction of
such judge or magistrate ... it shall be the duty of such judge
or magistrate to give a certificate thereof ... which shall be
a sufficient warrant for removing the said fugitive ... to the
state or territory from which he or she fled."
Section 6 of the act of 1850 provides that "the person or persons
to whom such service or labour may be due, or his, her, or their
agent or attorney ... may pursue and reclaim such fugitive
person, either by procuring a warrant ... or by seizing and
arresting such fugitive, where the same can be done without
process, and by taking, or causing such person to be taken,
forthwith before such court, judge or commissioner, whose duty
it shall be to hear and determine the case ... in a summary
manner; and upon satisfactory proof ... to make out and deliver
to such claimant, his or her agent or attorney, a certificate
... with authority ... to use such reasonable force ... as may
be necessary ... to take and remove such fugitive person back
to the State or Territory whence he or she may have escaped as
aforesaid."
It is not to be supposed, of course, that the law of 1850 was found
to be intrinsically less objectionable to abolitionists than the
measure it was intended to supplement. On the contrary, it soon
proved to be decidedly more objectionable. The features of the
first Slave Act that were obnoxious to the Northern people, and had
been subjected to examination in the courts, were retained in the
second act, where they were associated with a number of new features
of such a character that they soon brought the new law into the
greatest contempt. While, therefore, the records of the trials of
the chief cases arising under the later law are found to contain
arguments borrowed from the contentions made in the cases already
discussed, it is interesting to note that they afford proof that
new arguments were also brought to bear against the act of 1850.
As with the first Fugitive Slave Law, so also with its successor,
fault was found on account of the absence of any provision for jury
trial;[788] the authority of a claimant or his agent to arrest
without legal process;[789] the opposition alleged to exist between
the law and the Ordinance of 1787;[790] and the power said to be
improperly exercised by Congress in legislating upon the subject
of fugitive slaves.[791] It is unnecessary to introduce here a
study of these points as they presented themselves in the various
cases arising, for a discussion of them would lead to no principles
of importance other than those discovered in the cases already
examined.[792]
[788] Sims' case, tried before the Supreme Judicial Court of
Massachusetts, March term, 1851. See 7 _Cushing's Reports_, 310.
Miller _vs._ McQuerry, tried before the Circuit Court of the
United States, in Ohio, 1853. See 5 _McLean's Reports_, 481-484.
_Ex parte_ Simeon Bushnell, etc., tried before the Supreme Court
of Ohio, May, 1859. See 9 _Ohio State Reports_, 170.
[789] Norris _vs._ Newton et al., tried before the Circuit Court
of the United States, in Indiana, May term, 1850. See 5 _McLean's
Reports_, 98.
_Ex parte_ Simeon Bushnell, etc. See 9 _Ohio State Reports_, 174.
United States _vs._ Buck, tried before the District Court of the
United States for the Eastern District of Pennsylvania, 1860. See
8 _American Law Register_, 543.
[790] Booth's case, tried before the Supreme Court of Wisconsin,
June term, 1854. See 3 _Wisconsin Reports_, 3.
_Ex parte_ Simeon Bushnell, and _ex parte_ Charles Langston,
tried before the Supreme Court of Ohio, May, 1859. See 9 _Ohio
State Reports_, 111, 114-117, 124, 186.
[791] Sims' case. See 7 _Cushing's Reports_, 290. Booth's case.
See 3 _Wisconsin Reports_.
[792] For the text of the Slave Laws, see Appendix A, pp. 359-366.
In some of the cases that were tried under the act of 1850, however,
new questions appeared; and in some, where the questions were
perhaps without novelty, the circumstances were such that the cases
cannot well be passed over in silence.
If, as was freely declared by the abolitionists, it was possible
for free negroes to be abducted from the Northern states under the
form of procedure laid down by the act of 1793, there can be little
reason to doubt that the same thing was equally possible under the
procedure established by the act of 1850. Certain it is that the
anti-slavery people were not dubious on this point, but they had
scarcely had time to formulate their criticisms of the new law when
the first case under it of which there is any record demonstrated
the ease with which this legislation could be taken advantage of
in the commission of a foul injustice. The case occurred September
26, only eight days after the passage of the act. A free negro,
James Hamlet, then living in New York, was arrested as the slave of
Mary Brown, of Baltimore. The hearing took place before a United
States commissioner and the negro's removal followed at once. The
community in which Hamlet was living was greatly incensed when the
facts concerning his disappearance became known, and the sum of
money necessary for his redemption was quickly contributed. Before a
fortnight had elapsed he was brought back from slavery.[793]
[793] Marion G. McDougall, _Fugitive Slaves_, pp. 43 and 44, with
the references there given; Wilson, _Rise and Fall of the Slave
Power_, Vol. II, pp. 304, 305. See Appendix B, p. 372.
The summary manner in which this case was disposed of had prevented
a defence being made in behalf of the supposed fugitive. In the
next case, however, that of Thomas Sims, which was tried before
the Supreme Judicial Court of Massachusetts in 1851, the negro was
represented by competent counsel, who brought forward objections
against the second Fugitive Slave Law. Almost the first of these
was directed against the power of the special officers, the
commissioners, created by the new law. It was insisted that the
authority with which these officers were invested was distinctly
judicial in character, despite the constitutional provision limiting
the exercise of the judicial power of the United States to organized
courts of justice, composed of judges, holding their offices during
good behavior, and receiving fixed salaries for their services.[794]
The same argument seems to have been adduced in Scott's case, tried
before the District Court of the United States in Massachusetts
in 1851; in the case of Miller _vs._ McQuerry, tried before the
Circuit Court of the United States in Ohio in 1853;[795] in Booth's
case, argued in the Supreme Court of Wisconsin in 1854;[796] in the
case known as _ex parte_ Robinson, adjudicated by the Circuit Court
of the United States for the Southern District of Ohio at its April
term, 1855;[797] and in the case _ex parte_ Simeon Bushnell, argued
and determined in the Supreme Court of Ohio in 1859.[798] The court
met this argument by a direct answer in four of the cases mentioned,
namely, those of Sims, Scott, Booth and _ex parte_ Robinson. In the
first, Sims' case, Chief Justice Shaw pointed out that under the
Slave Law of 1793 the jurisdiction over fugitive slave cases had
been conferred on justices of the peace and magistrates of cities
and towns corporate, as well as on judges of the United States
circuit and district courts, and that evidently, therefore, the
power bestowed had not been deemed judicial in the sense in which
it was urged that the functions of the commissioners were judicial.
At the same time the judge admitted that the "argument from the
limitation of judicial power would be entitled to very grave
consideration" if it were without the support of early construction,
judicial precedent and the acquiescence of the general and state
governments. In the trial of James Scott, on the charge of aiding
in the rescue of Shadrach (May or June, 1851), Judge Sprague, of
the United States District Court, held that the legal force of the
certificate issued by a commissioner lay merely in the authority it
conveyed to remove the person designated from one state to another,
and that the disposition made of the person removed depended solely
upon the laws of the state to which he was taken. The facts set
down in the certificate were not, therefore, to be considered as
matters judicially established, but as facts only in the opinion of
the commissioner. In Booth's case, the opinion of the Supreme Court
of Wisconsin contained a reference to the legality of the power of
the commissioners and sustained the objection to their authority
on the ground of unconstitutionality.[799] In _ex parte_ Robinson,
Judge McLean admitted that the inquiry made by the commissioner
was "somewhat in the nature of judicial power," but that the same
remark applied to all the officers of the accounting departments of
the government, as, for example, the examiners in the Patent Office.
He also remarked that the Supreme Court had always treated the acts
of the commissioners, in the cases that had come before it, as
possessed of authority under the law.[800]
[794] _7 Cushing's Reports_, 287. The constitutional requirement
will be found in Article III, Section 1, of the Constitution of
the United States.
[795] 5 _McLean's Reports_, 481.
[796] 3 _Wisconsin Reports_, 39.
[797] 6 _McLean's Reports_, 359.
[798] 9 _Ohio State Reports_, 176.
[799] 3 _Wisconsin Reports_, 64.
[800] 6 _McLean's Reports_, 359, 360.
The uncertainty as to the precise character of the commissioners'
power displayed in the different views of the courts before which
the question was brought marks the observations of the commissioners
themselves in regard to their authority. Examples will be found
in Sims' and Burns' cases. In the former, Mr. George T. Curtis
declared that claims for fugitive slaves came within the judicial
power of the federal government, and that, consequently, the mode
and means of the application of this power to the cases arising were
properly to be determined by Congress. In the latter, Mr. Edward G.
Loring asserted that his action was not judicial at all, but only
ministerial.
An additional ground of objection to the commissioners was found in
the provision made in the law of 1850 for their remuneration. When
one of these officers issued a certificate authorizing the removal
of a runaway to the state whence he had escaped, he was legally
entitled to a fee of ten dollars; when, however, he withheld the
warrant he could receive but five dollars. Abolitionists took much
offence at this arrangement, and sometimes scornfully denominated
the special appointees under the law the "ten-dollar commissioners,"
and insisted that the difference between the fees was in the nature
of a bribe held out to the officers to induce them to decide in
favor of the claimant. Considering the prevalence of this feeling
outside of the courts, it is not surprising that objections to the
section of the act regulating the fees of commissioners should
have been taken within the court-room.[801] Such objection was
raised in McQuerry's case, and was answered by Judge McLean. This
answer is probably the only one judicially declared, and is worth
quoting: "In regard to the five dollars, in addition, paid to the
commissioner, where the fugitive is remanded to the claimant," the
judge explained, "in all fairness it cannot be considered as a
bribe, or as so intended by Congress; but as a compensation to the
commissioner for making a statement of the case, which includes the
facts proved, and to which the certificate is annexed. In cases
where the witnesses are numerous and the investigation takes up
several days, five dollars would scarcely be a compensation for the
statement required. Where the fugitive is discharged, no statement
is necessary."[802]
[801] Hurd, _Law of Freedom and Bondage_, Vol. II, p. 747.
[802] 5 _McLean's Reports_, 481.
The fees paid to commissioners were, as indicated in the remarks
just quoted, by way of remuneration for services rendered in
inquiries relative to the rights of ownership of negroes alleged to
have escaped from the South. These inquiries, together with similar
inquiries that arose under the act of 1793, constitute a group by
themselves. Another group is made up of the cases growing out of the
prosecution under the two acts of persons charged with harboring
fugitive slaves, or aiding in their rescue. The secrecy observed by
abolitionists in giving assistance to escaping bondmen shows that
the evils threatening, if a discovery occurred, were constantly kept
in mind. After the passage of the second act, public denunciation
of the measure was indulged in freely, and open resistance to its
provisions, whether these should be considered constitutional or
not, was recommended in some quarters. Such remonstrances seem to
have early disturbed the judicial repose of the courts, for, six
months after the new Fugitive Slave Bill had become a law, Justice
Nelson found occasion in the course of a charge to the grand jury of
the Circuit Court of the United States for the Southern District of
New York to deliver a speech on sectional issues in which he gave
an exposition of the new law, "so that those, if any there be, who
have made up their minds to disobey it, may be fully apprised of the
consequences."[803] The severer penalties of the law of 1850 had
no deterrent effect upon those who were determined to resist its
enforcement. The fervor displayed in harboring runaways increased
rather than diminished throughout the free states, and the spirit
of resistance thus fostered broke out in daring and sometimes
successful attempts at rescue. Through the activity of slave-owners
in seeking the recovery of their lost property, and the support
afforded them by the government in the strict enforcement of the new
law, a number of offenders were brought to trial and subjected to
punishments inflicted under its provisions.
[803] 1 _Blatchford's Circuit Court Reports_, 636.
Among the prosecutions arising under the two congressional acts the
following cases are offered as typical. The number has been limited
by choosing in general from among such as came before supreme courts
of the states, or before circuit and district courts of the United
States.
One of the earliest cases of which we have record was brought
before the Circuit Court of the United States for the Eastern
District of Pennsylvania on writ of error, in 1822. The action
was for the penalty under the law of 1793 for obstructing the
plaintiff, a citizen of Maryland, in seizing his escaped slave in
Philadelphia for the purpose of taking him before a magistrate there
to prove property. The trial in the United States District Court
had terminated in a verdict of $500 for the slave-owner. Judge
Washington, of the Circuit Court, decided, however, that there was
an error in the judgment of the lower court, that the judgment must
be reversed with costs, and the cause remitted to the District Court
in order that a new trial might be had. This case is known in the
law books as the case of Hill _vs._ Low.[804]
[804] _Washington's Circuit Court Reports_, 327-331.
Occasionally an attempt at rescue ended in the arrest and
imprisonment of the slave-catchers, as well as the release of the
captured negro. When a party of rescuers went to such a length as
here indicated it laid itself liable to an action for damages on
the ground of false imprisonment, as well as to prosecution for
the penalty under the Fugitive Slave Law. This is illustrated in
the case of Johnson _vs._ Tomkins, a case belonging to the year
1833.[805] It was the outgrowth of the attempt of a master to
reclaim his slave from the premises of a Quaker, John Kenderdine,
of Montgomery County, Pennsylvania. Before the slave-owner could
return to New Jersey, the state of his domicile, he and his party
were overtaken, and after violent handling in which the master
was injured, they were taken into custody, and were forthwith
prosecuted. The trial ended in the acquittal of the company from
New Jersey, whose seizure of the negro was found to be justifiable.
Then followed the prosecution of some of the Pennsylvania party for
trespass and false imprisonment, before the Circuit Court of the
United States. The fact that the defendants were all Quakers was
noted by the judge, who found it "hard to imagine" the motives by
which these persons, "members of a society distinguished for their
obedience and submission to the laws" were actuated. The question of
damages was left exclusively to the jury. The verdict rendered was
for $4,000, and the court gave judgment on the verdict.[806]
[805] _Baldwins Circuit Court Reports_, 571-605.
[806] _Washington's Circuit Court Reports_, 327-331.
The law of 1793 provided a double penalty for those guilty of
transgressing its provisions: first, the forfeiture of a sum of
$500 to be recovered for the benefit of the claimant by action of
debt; secondly, the payment of such damages as might be awarded
by the court in an action brought by the slave-owner on account
of the injuries sustained through the loss, or even the temporary
absence, of his property. In the famous case of Jones _vs._ Van
Zandt, which was pending before the United States courts, in Ohio
and at Washington, for five years, from 1842 to 1847, the defendant
was compelled to pay both penalties. In April, 1842, Mr. Van Zandt,
an anti-slavery Kentuckian, who had settled at Springdale, a few
miles north of Cincinnati, Ohio, was caught in the act of conveying
a company of nine fugitives in his market-wagon at daybreak one
morning, and, notwithstanding the efforts of the slave-catchers, one
of the negroes escaped. The trial was held before the United States
Circuit Court at its July term, 1843. The jury gave a verdict for
the claimant of $1,200 in damages on two counts.[807] Besides the
suit for damages, an action was brought against Van Zandt for the
penalty of $500. In this action, as in the other, the verdict was
for Jones, the plaintiff. The matter did not end here, however, and
was carried on a certificate of division in opinion between the
judges to the Supreme Court of the United States. The decision of
this court was also adverse to Van Zandt, and final judgment was
entered against him for both amounts. This settlement was reached at
the January term in 1847.[808]
[807] _McLean's Reports_, 612.
[808] _Howard's Reports_, 215-232; see also Schuckers, _Life and
Public Services of S. P. Chase_, 53-66; Warden, _Private Life and
Public Services of S. P. Chase_, 296-298.
The successful rescue of a large company of slaves was likely to
make the adventure a very expensive one for the responsible persons
that took part in it. Such was the experience of the defendants in
the case of Giltner _vs._ Gorham and others, determined in 1847. Six
slaves, the chattels of Mr. Giltner, a citizen of Carroll County,
Kentucky, were discovered and arrested in Marshall, Michigan, by
the agents of the claimant, but through the intervention of the
defendants were set at liberty. Action was brought to recover the
value of the negroes, who were estimated to be worth $2,752. In the
first trial the jury failed to agree. At the succeeding term of
court, however, a verdict for the value of the slaves was found for
the plaintiff.[809]
[809] _McLean's Reports_, 402-426.
The value of four negroes was involved in the case of Norris _vs._
Newton and others. These negroes were found in September, 1849,
after two years' absence from Kentucky, living in Cass County,
Michigan. Here they had taken refuge among abolitionists and people
of their own color. They were at once seized by their pursuers and
conveyed across the line into Indiana, but had not been taken far
when their progress was stopped by an excited crowd with a sheriff
at its head. The officer had a writ of habeas corpus, and the temper
of the crowd would admit of no delay in securing a hearing for the
fugitives. The court-house at South Bend, whither the captives were
now taken, was at once crowded with spectators, and the streets
around it filled with the overflow. The negroes were released
by the decision of the judge, but were rearrested and placed in
jail for safe-keeping. On the following day warrants were sworn
out against several members of the Kentucky party, charging them
with riot and other breaches of the peace, and civil process was
begun against Mr. Norris, the owner of the slaves, claiming large
damages in their behalf. Meanwhile companies of colored people,
some of whom had firearms and others clubs, came tramping into the
village from Cass County and the intermediate country. Fortunately
a demonstration by these incensed bands was somehow avoided. Two
days later the fugitives were released from custody on a second writ
of habeas corpus, and, attended by a great bodyguard of colored
persons, were triumphantly carried away in a wagon. The slave-owner,
the charges against whom were dropped, had declined to attend the
last hearing accorded his slaves, declaring that his rights had
been violated, and that he would claim compensation under the law.
Suit was accordingly brought in the Circuit Court of the United
States in 1850, and the sum of $2,850 was awarded as damages to the
plaintiff.[810]
[810] 5 _McLean's Reports_, 92-106.
Another case in which large damages were at stake was that of Oliver
_vs._ Weakley and others, tried in the United States Circuit Court
for the Western District of Pennsylvania, in October term, 1853. It
was alleged and proved that Mr. Weakley, one of the defendants, had
given shelter in his barn to several slaves of the plaintiff, who
was a citizen of Maryland. The jury failed to agree on the first
trial. A second trial was therefore held, and this time a verdict
was reached; one of the defendants was found guilty, and damages to
the amount of $2,800 were assessed upon him; the other defendants
were declared "not guilty."[811]
[811] 2 _Wallace Jr.'s Reports_, 324-326.
The dismissal without proper authority of seven fugitives from the
custody of their captors at Sandusky, Ohio, by Mr. Rush R. Sloane,
a lawyer of that city, led to the institution of two suits against
him by Mr. L. F. Weimer, the claimant of three of the slaves. The
suits were tried before the District Court of the United States
at Columbus, Ohio, in 1854, and a verdict for $3,000 and costs was
returned in favor of the slaveholder. The costs amounted to $330.30,
and the defendant had also to pay $1,000 in attorneys' fees. Some
friends of Mr. Sloane in Sandusky formed a committee and collected
$393, an amount sufficient to pay the court and marshal's costs,
but the judgment and the other expenses were borne by the defendant
individually.[812]
[812] 6 _McLean's Reports_, 259-273. Mr. Sloane's account of the
case will be found in _The Firelands Pioneer_ for July, 1888,
pp. 46-49. A copy of the certificate of the clerk of court there
given is here reproduced:--
"Louis F. Weimer _vs._ Rush R. Sloane. United States District of
Ohio, in debt.
OCTOBER TERM, 1854.
Judgment for Plaintiff for $3000 and costs.
Received July 8th, 1856, of Rush R. Sloane, the above Defendant,
a receipt of Louis F. Weimer, the above Plaintiff, bearing date
Dec. 14th, 1854, for $3000, acknowledging full satisfaction of
the above judgment, except the costs; also a receipt of L. F.
Weimer, Sr., per Joseph Doniphan, attorney, for $85, the amount
of Plaintiff's witness fees in said case; also certificates of
Defendant's witnesses in above case for $162; also $20 in money,
the attorney's docket fees attached, which, with the clerk and
marshal's fees heretofore paid, is in full of the costs in said
case.
(Signed) WILLIAM MINER, _Clerk_."
The burden of the penalty, of which, as we have just seen, a small
fraction was assumed by sympathizers with the offender in the case
of Mr. Sloane, was altogether removed by friendly contributors in
the case of another citizen of Sandusky. Two negroes from Kentucky,
who were being cared for at the house of Mr. F. D. Parish, were
protected from arrest by their benefactor in February, 1845. As
Parish was a fearless agent of the Underground Road, the fugitives
were not seen afterwards in northern Ohio. The result was that
Parish was required to undergo three trials, and in the last, in
1849, the Circuit Court of the United States for the District of
Ohio fined him $500, the estimated value of the slaves at the time.
This sum, together with the costs and expenses, amounting to as much
more, was paid by friends of Mr. Parish, who made up the necessary
amount by subscriptions of one dollar each.[813]
[813] For the first trial (1845), see 3 _McLean's Reports_, 631;
_s. c. 5 Western Law Journal_, 25; 7 _Federal Cases_, 1100; for
the second trial (1847), see 10 _Law Reporter_, 395; _s. c._ 5
_Western Law Journal_, 206; 7 _Federal Cases_, 1093; for the
third trial (1849), see 5 _McLean's Reports_, 64; _s. c._ 7
_Western Law Journal_, 222; 7 _Federal Cases_, 1095. See also
_The Firelands Pioneer_, July, 1888, pp. 41, 42.
It will have been noticed that the Van Zandt and Parish cases were
in litigation for about five years each. A famous Illinois case,
that of Dr. Richard Eells, occupied the attention of the courts and
of the public more or less during an entire decade. The incidents
that gave rise to this case occurred in Adams County, Illinois, in
1842. In that year Mr. Eells was indicted for secreting a slave
owing service to Chauncey Durkee, of Missouri, and was convicted and
sentenced to pay a fine of $400 and the costs of the prosecution.
The case was taken on writ of error first to the Supreme Court of
the state, and after the death of Mr. Eells to the Supreme Court of
the United States. In both instances the judgment of the original
tribunal was confirmed. The decision of the federal court was
reached at its December term for 1852.[814]
[814] 5 _Illinois Reports_, 498-518; 14 _Howard's Reports_, 13,
14.
It was sometimes made clear in the courts that the defendants in
cases arising under the Fugitive Slave laws were persons in the
habit of evading the requirements of these laws. This is true of
the case of Ray _vs._ Donnell and Hamilton, which was tried before
the United States Circuit Court in Indiana, at the May term, 1849.
A slave woman, Caroline, and her four children fled from Kemble
County, Kentucky, and found shelter in a barn near Clarksburg,
Indiana. Here they were discovered by Woodson Clark, a farmer
living in the neighborhood, who took measures immediately to inform
their master, while the slaves were removed to a fodder-house for
safe-keeping. In some way Messrs. Donnell and Hamilton learned
of the capture of the negroes by Mr. Clark, and secured a writ
of habeas corpus in their behalf; but, if the testimony of Mr.
Clark's son, supported by certain circumstantial evidence, is to
be credited, the blacks were released from custody by the personal
efforts of the defendants, and not by legal process. Considerable
evidence conflicting with that just mentioned appears to have had
little weight with the jury, for it gave a verdict for the claimant
and assessed his damages at $1,500.[815]
[815] 4 _McLean's Reports_, 504-515.
In the trial of Mitchell, an abolitionist of the town of Indiana,
Pennsylvania, in 1853, for harboring two fugitives, some of
the evidence was intended to show that he was connected with a
"regularly organized association," the business of which was "to
entice negroes from their owners, and to aid them in escaping to
the North." The slaves he was charged with harboring had been given
employment on his farm in the country, where, as it was thought,
they would be secure. After remaining about four months they were
apprised of danger and escaped. Justice Grier charged the jury to
"let no morbid sympathy, no false respect for pretended 'rights
of conscience,' prevent it from judging the defendant justly." A
verdict of $500 was found for the plaintiff.[816]
[816] 2 _Wallace Jr.'s Reports_, 313, 317-323.
Penalties for hindering the arrest of a fugitive slave were imposed
in two other noted cases, which deserve mention here, although
they are considered at length in another connection. One of these
was Booth's case, with which the Supreme Court of Wisconsin, and
the District and Supreme Courts of the United States dealt between
the years 1855 and 1858. The sentence pronounced against Mr. Booth
included imprisonment for one month and a fine of $1,000 and
costs--$1,451 in all.[817] The other case was what is commonly known
as the Oberlin-Wellington case, tried in the United States District
Court at Cleveland, Ohio, in 1858 and 1859. Only two out of the
thirty-seven men indicted were convicted, and the sentences imposed
were comparatively light. Mr. Bushnell was sentenced to pay a fine
of $600 and costs and to be imprisoned in the county jail for sixty
days, while the sentence of the colored man, Langston, was a fine of
$100 and costs and imprisonment for twenty days.
[817] 21 _Howard's Reports_, 510; _The Fugitive Slave Law in
Wisconsin, with Reference to Nullification Sentiment_, by Vroman
Mason, p. 134.
In all of the cases thus far considered the charges upon which the
transgressors of the Fugitive Slave laws were prosecuted were,
in general terms, harboring and concealing runaways, obstructing
their arrest, or aiding in their rescue. There was, however, one
case in which the crime alleged in the indictment was much more
serious, being nothing less than treason against the United States.
This was the famous Christiana case, marked not only by the nature
of the indictment, but by the organized resistance to arrest made
by the slaves and their friends, and by the violent death of one
of the attacking party. The frequent abduction of negroes from
the neighborhood of Christiana, in southeastern Pennsylvania,
seems to have given occasion for the formation, about 1851, of a
league for self-protection among the many colored persons living
in that region.[818] The leading spirit in this association was
William Parker, a fugitive slave whose house was a refuge for
other runaways. On September 10, Parker and his neighbors received
word from the Vigilance Committee of Philadelphia that Gorsuch, a
slaveholder of Maryland, had procured warrants for the arrest of
two of his slaves, known to be staying at Parker's house. When,
therefore, Gorsuch with his son and some friends appeared upon the
scene about daybreak on the morning of the 11th, and, having broken
into the house, demanded the fugitives, the negroes lost little time
in sounding a horn from one of the upper-story windows to summon
their friends. From fifty to one hundred men, armed with guns, clubs
and corn-cutters, soon came up. Castner Hanway and Elijah Lewis,
two Quakers, who had been drawn to the place by the disturbance,
declined to join the marshal's posse and help arrest the slaves;
but they advised the negroes against resisting the law, and warned
Gorsuch and his party to depart if they would prevent bloodshed.
Neither side would yield, and a fight was soon in progress. In the
course of the conflict the slave-owner was killed, his son severely
wounded, and the fugitives managed to escape.
[818] Smedley, _Underground Railroad_, pp. 107, 108; 2 _Wallace
Jr.'s Reports_, 159.
The excitement caused by this affair extended throughout the
country. The President of the United States placed a company of
forty-five marines at the disposal of the United States marshal,
and these proceeded under orders to the place of the riot. A large
number of police and special constables made search far and wide for
those concerned in the rescue. Their efforts were rewarded with the
arrest of thirty-five negroes and three Quakers, among the latter
Hanway and Lewis, who gave themselves up. The prisoners were taken
to Philadelphia and indicted by the grand jury for treason. Hanway
was tried before the Circuit Court of the United States for the
Eastern District of Pennsylvania in November and December, 1851.
In the trial it was shown by the defence that Mr. Hanway was a
native of a Southern state, had lived long in the South, and, during
his three years' residence in Pennsylvania, had kept aloof from
anti-slavery organizations and meetings; his presence at the riot
was proved to be accidental. Under these circumstances the charge
of Justice Grier to the jury was a demonstration of the unsoundness
of the indictment: the judge asked the jury to observe that a
conspiracy to be classed as an act of treason must have been for
the purpose of effecting something of a public nature; and that the
efforts of a band of fugitive slaves in opposition to the capture of
any of their number, even though they were directed by friends and
went the full length of committing murder upon their pursuers, was
altogether for a private object, and could not be called "levying
war" against the nation. It did not take the jury long to decide the
case. After an absence of twenty minutes the verdict "not guilty"
was returned. One of the negroes was also tried, but not convicted.
Afterward a bill was brought against Hanway and Lewis for riot and
murder, but the grand jury ignored it, and further prosecution was
dropped.[819]
[819] Still's _Underground Railroad Records_, pp. 348-368;
Smedley, _Underground Railroad_, pp. 107-130; 2 _Wallace Jr.'s
Reports_, pp. 134-206; M. G. McDougall, _Fugitive Slaves_, pp.
50, 51; Wilson, _Rise and Fall of the Slave Power_, Vol. II, pp.
328, 329.
One cannot examine the records of the various cases that have been
passed in review in the preceding pages of this chapter without
being struck in many instances by the character of the men that
served as counsel for fugitive slaves and their friends. It not
infrequently happens that one comes upon the name of a man whose
principles, ability and eloquence won for him in later years
positions of distinction and influence at the bar and in public
life. In the Christiana case, for example, Thaddeus Stevens was a
prominent figure; in the Van Zandt case Salmon P. Chase and William
H. Seward presented the arguments against the Fugitive Slave Law
before the United States Supreme Court;[820] Mr. Chase also appeared
in Eells' case, and in the case known as _ex parte_ Robinson,
besides others of less judicial importance. Rutherford B. Hayes took
part in a number of fugitive slave cases in Cincinnati, Ohio. A
letter written by the ex-President in 1892 says: "As a young lawyer,
from the passage of the Fugitive Slave Law until the war, I was
engaged in slave cases for the fugitives, having an understanding
with Levi Coffin and other directors and officers of the U. R. R.
that my services would be freely given."[821] John Jolliffe, another
lawyer of Cincinnati, less known than the anti-slavery advocates
already mentioned, was sometimes associated with Chase and Hayes
in pleading the cause of fugitives.[822] The Western Reserve was
not without its members of the bar that were ready to display
their legal talent in a movement well grounded in the popular
mind of eastern Ohio. An illustration is afforded by the trial of
the Oberlin-Wellington rescuers, when four eminent attorneys of
Cleveland offered their services for the defence, declining at
the same time to accept a fee. The event shows that the political
aspirations of these men were not injured by their procedure, for
Mr. Albert G. Riddle, who spoke first for the defence, was elected
to Congress from the Cleveland district the following year, and Mr.
Rufus P. Spalding, one of his associates, was similarly honored
by the same district in 1862.[823] In November, 1852, the legal
firm of William H. West and James Walker, of Bellefontaine, Ohio,
attempted to release from custody several negroes belonging to
the Piatt family of Kentucky, before their claimants could arrive to
prove property. The attempt was successful, and, by prearrangement,
the fugitives were taken into a carriage and driven rapidly to a
neighboring station of the Underground Railroad. The funds to pay
the sheriff, the court expenses and the livery hire were borne in
part by Messrs. West and Walker.[824]
[820] Wilson, _Rise and Fall of the Slave Power_, Vol. I, p. 477.
[821] Letter of Mr. Hayes, Fremont, O., Aug. 4, 1892.
[822] _Reminiscences of Levi Coffin_, pp. 548, 549.
[823] Rhodes, _History of the United States_, Vol. II, p. 364.
The others representing the rescuers were Franklin T. Backus
and Seneca O. Griswold. See J. R. Shipherd's _History of the
Oberlin-Wellington Rescue_, p. 14.
[824] Conversation with Judge William H. West, Bellefontaine, O.,
Aug. 11, 1894.
[Illustration: RUSH R. SLOANE,
OF SANDUSKY, OHIO,
fined $3000 and costs for assisting runaways to Canada.]
[Illustration: THADDEUS STEVENS, M.C.,
who befriended fugitives in southeastern Pennsylvania, and appeared
for them in court.]
[Illustration: J. R. WARE,
OF MECHANICSBURG, OHIO,
a station-keeper, in a centre receiving fugitives from several
converging routes.]
[Illustration: EX-PRESIDENT R. B. HAYES,
who, as a young lawyer in Cincinnati, Ohio, served as counsel in
fugitive slave cases.]
Among the names of the legal opponents of fugitive slave legislation
in Massachusetts, that of Josiah Quincy, who gained distinction in
public life and as President of Harvard College, is first to be
noted. Mr. Quincy was counsel for the alleged runaway in one of the
earliest cases arising under the act of 1793.[825] In some of the
well-known cases that were tried under the later act Richard H.
Dana, Robert Rantoul, Jr., Ellis Gray Loring, Samuel E. Sewell and
Charles G. Davis appeared for the defence. Sims' case was conducted
by Robert Rantoul, Jr., and Mr. Sewell; Shadrach's by Messrs. Davis,
Sewell and Loring; and Burns' case by Mr. Dana and others.[826]
[825] M. G. McDougall, _Fugitive Slaves_, p. 35.
[826] _Ibid._, pp. 44, 46, 47.
Instances gathered from other Northern states seem to indicate
that information of arrests under the Fugitive Slave acts almost
invariably called out some volunteer to use his legal knowledge
and skill in behalf of the accused, and that in many centres there
were not lacking men of professional standing ready to give their
best efforts under circumstances that promised, in general, little
but defeat. Owen Lovejoy, of Princeton, Illinois, was arrested
on one occasion for aiding fugitive slaves, and was defended by
James H. Collins, a well-known attorney of Chicago. Returning
from the trial of Lovejoy, Mr. Collins learned of the arrest of
Deacon Cushing, of Will County, on a similar charge, and together
with John M. Wilson he immediately volunteered to conduct the new
case.[827] At the hearing of Jim Gray, a runaway from Missouri, held
before Judge Caton of the State Supreme Court at Ottawa, Illinois,
Judge E. S. Leland, B. C. Cook, O. C. Gray and J. O. Glover
appeared voluntarily as counsel for the negro.[828] As a result
of the hearing it was decided by the court that the arrest was
illegal, since it had been made under the state law; the negro was,
therefore, discharged from the arrest, but could not be released by
the judge from the custody of the United States marshal. However,
the bondman was rescued, and thus escaped. Eight men were indicted
on account of this affair, prominent among whom were John Hossack
and Dr. Joseph Stout, of Ottawa. Mr. Hossack, who was tried first,
had an array of six of the leading lawyers of Chicago to present his
side of the case; they were the Hons. Isaac N. Arnold, Joseph Knox,
B. C. Cook, J. V. Eustace, E. Leland and E. C. Larnard. Mr. Stout
had three of these men to represent him, namely, Messrs. Eustace,
Larnard and Arnold.[829] Early in March, 1860, two citizens of
Tabor, Iowa, Edward Sheldon and Newton Woodford, were captured while
conducting four runaways from the Indian Territory to a station of
the Underground Railroad. At the trial they were ably defended by
James Vincent, Lewis Mason and his brother, and were acquitted. It
may be added that the trial closed at nine o'clock in the evening,
and before daybreak the negroes had been rescued and sent forward on
their way to Canada.[830]
[827] G. H. Woodruff, _History of Will County, Illinois_, p. 264.
[828] The _Ottawa Republican_, Nov. 9, 1891. The hearing occurred
Oct. 20, 1859.
[829] The _Pontiac_ (Ill.) _Sentinel_, 1891-1892.
[830] The _Tabor_ (Ia.) _Beacon_, 1890-1891, Chap. XXI of
a series of articles by the Rev. John Todd, on "The Early
Settlement and Growth of Western Iowa."
In Philadelphia there were several lawyers that could always
be depended on to resist the claims of the slave-owner to his
recaptured property in the courts. William Still mentions two
of these, namely, David Paul Brown and William S. Pierce, as
"well-known veterans" ready to defend the slave "wherever and
whenever called upon to do so."[831] Robert Purvis relates
an incident of David Paul Brown that will be recognized as
characteristic of the spirit in which the class of advocates to
which he belonged rendered their services for the slave. A case
growing out of the capture of a negro by his pursuers occupied
the attention of Mr. Purvis for a season in 1836, and he desired
to engage Mr. Brown for the defence; he accordingly presented
the matter to the distinguished attorney, offering him a fee of
fifty dollars in advance. Mr. Brown promptly undertook the case,
but refused the money, saying: "I shall not now, nor have I
ever, accepted fee or reward, other than the approval of my own
conscience, and I respectfully decline receiving your money."[832]
[831] _Underground Railroad Records_, p. 367.
[832] Smedley, _Underground Railroad_, p. 359.
In what was, so far as known, the last case under the Slave Law
of 1850, Mr. John Dean, a prominent lawyer of Washington, D.C.,
displayed noteworthy zeal in the interest of his client, a supposed
fugitive. The affair occurred in June, 1862, and came within the
cognizance of the United States courts. Mr. Dean, who had just
obtained the discharge of the colored man from arrest, interfered
to prevent his seizure a second time as the slave of a Virginian.
The claimant, aided by other persons, sought to detain the black
until a civil officer should arrive to take him into custody, but
the attorney's surprising play at fisticuffs defeated the efforts of
the assailing party and the black got away. He soon enlisted in one
of the colored regiments then forming in Washington, and it is to
be surmised that all question concerning his status was put to rest
by this step. Mr. Dean was indicted for aiding in the escape of a
fugitive slave, and although the affair is said to have caused great
excitement in the Capital, especially in the two Houses of Congress,
it never reached a legal decision, but lapsed through the progress
of events that led rapidly to the Emancipation Proclamation and the
repeal of the Fugitive Slave laws.[833]
[833] This case is given by Mr. Noah Brooks, in his _Washington
in Lincoln's Time_, 1895, pp. 197, 198.
In the crisis that was reached with the beginning of the new decade,
the question of the rendition of fugitives from service was by
no means lost sight of. As in 1850, so in 1860 a measure for the
more effective protection of slave property appears to have been
a necessary condition in any plan of compromise that was to gain
Southern support. President Buchanan sought to meet the situation
by proposing, in his message of December 4, 1860, the adoption
of "explanatory" amendments to the Constitution recognizing the
master's right of recovery and the validity of the Fugitive Slave
Law; he also recommended a declaration against the so-called
personal liberty laws of the states as unconstitutional, and
therefore void. This produced, within three months, in the House, a
crop of more than twenty resolutions relative to fugitive slaves;
the deliberations of that body issued at length, March 1, 1861,
in the passage of a bill to make more effective the law of 1850.
The new measure provided for an appeal to the Circuit Court of the
United States, where cases were to be tried by jury. But in the
Senate this bill never got beyond the first reading.
That the people of the Northern states would have acquiesced in
a new law for the surrender of runaway negroes was certainly not
to be expected. Both the law of 1793 and that of 1850 had been
systematically evaded as well as frequently denounced, and now
memorials were being sent to Congress praying for the repeal of the
despised legislation.[834] A bill for this purpose was introduced
into the House by Mr. Blake, of Ohio, in 1860, but was smothered
by the attempt to amend the existing law. A similar measure was
introduced into the Senate in December, 1861, by Mr. Howe, of
Wisconsin, who prefaced its presentation by declaring that the
Fugitive Slave Law "has had its day. As a party act it has done its
work. It probably has 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."[835] The bill
was referred to a committee, where it was kept for some time, and at
length was reported adversely in February, 1863.
[834] Wilson, _Rise and Fall of the Slave Power_, Vol. III, p.
395.
[835] _Congressional Globe_, Thirty-seventh Congress, First
Session, 1356.
In the meantime slavery was subjected to a series of destructive
attacks in Congress, despite the views of some, who held that the
institution was under constitutional protection. The passions and
exigencies of the War, together with the humane motives from which
the anti-slavery movement had sprung, did not leave these assaults
without justification. In August, 1861, a law was enacted providing
for the emancipation of negroes employed in military service
against the government; in April, 1862, slavery was abolished in
the District of Columbia; in May, army officers were forbidden to
restore fugitives to their owners; in June slavery was prohibited
in the territories; and in July an act was passed granting freedom
to fugitives from disloyal masters that could find refuge with the
Union forces.
In the train of these measures, and in September of the same year
in which most of them were enacted, President Lincoln issued his
proclamation of warning to the South declaring that all persons
held as slaves in the states continuing in rebellion on the 1st of
January, 1863, should be "thenceforth and forever free." When the
warning was carried into effect on the first day of the new year by
the famous Proclamation of Emancipation, ownership of slave property
in the border states was not abolished. The loyalty of these
states was their protection against interference. As the Fugitive
Slave Law was not yet repealed opportunity was still afforded to
civil officers to enforce its provisions both north and south of
Mason and Dixon's line. North of the line there was, however, no
disposition to enforce the law. South of it wandering negroes were
sometimes arrested by the civil authorities for the purpose of being
returned to their masters. The following advertisement, printed two
months and a half after the final proclamation went into effect,
illustrates the method pursued in dealing with supposed fugitives:--
"There was committed to the jail in Warren County, Kentucky, as
runaway slave, on the 29th September, 1862, a negro man calling
himself Jo Miner. He says he is free, but has nothing to show to
establish the fact. He is about thirty-five years of age, very
dark copper color, about five feet eight inches high, and will
weigh one hundred and fifty pounds. The owner can come forward,
prove property, and pay charges, or he will be dealt with as the
law requires.
R. J. POTTER, J. W. C.
March 16, 1863. 1 m."[836]
[836] _Liberator_, May 1, 1863. Extract from the _Frankfort
Commonwealth_, quoted by M. G. McDougall, _Fugitive Slaves_, p.
80.
Although the proposition to repeal the Fugitive Slave Law of 1850
had been made in Congress in 1860, and repeated in 1861 and 1862,
no definite and conclusive action was taken until 1864. During the
session of 1863-1864 five bills were introduced into the House
looking toward the repeal of the law. In the discussion of the
subject the probable effect of revocation upon the border states was
frequently dwelt upon, and it was urged by many members that the
loyal slave states would consider repeal as "insult and outrage."
Mr. Mallory, of Kentucky, was one of those that took this view.
He therefore demanded that the law "be permitted to remain on the
statute-book," urging, "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." In reply to this
and other arguments the need of enlisting negro soldiers was pressed
on the attention of the House, and it was said by Mr. Hubbard, of
Connecticut, "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."[837] The conclusion
that slavery was already doomed to utter destruction could not
be avoided. The House therefore decided to throw away the empty
guarantee of the institution, and June 13 the vote on the bill for
repeal was taken. It resulted in the measure being carried by a vote
of 82 to 57. When the bill from the House came before the Senate the
question of repeal was already under consideration, and, indeed, had
been for three months and a half. Nevertheless, the House measure
was at once referred to committee and was reported back June 15.
It was then discussed by the Senate for several days and voted on
on June 23, the result being a vote of 27 in favor of repeal to 12
against it. Two days later President Lincoln affixed his signature
to the bill, and the Fugitive Slave laws were thereby annulled June
25, 1864. The constitutional provision for the recovery of runaways,
which had been judicially declared in the decision of Prigg's case
to be self-executing was not cancelled until December 18, 1865, when
the Secretary of State proclaimed the adoption of the Thirteenth
Amendment to the Constitution by the requisite number of states.
[837] _Congressional Globe_, Thirty-eighth Congress, First
Session, 2913. See also M. G. McDougall, _Fugitive Slaves_, p.
85.
CHAPTER X
THE UNDERGROUND RAILROAD IN POLITICS
To set forth the political aspect of the Underground Railroad is
not easy. Yet this side must be understood if the Underground
Railroad is to appear in its true character as something more than
a mere manifestation of the moral sentiment existing in the North
and in some localities of the South. The romantic episodes in the
fugitive slave controversy have been frequently described; but it
has altogether escaped the eye of the general historian that the
underground movement was one that grew from small beginnings into
a great system; that it must be reckoned with as a distinct causal
factor in tracing the growth of anti-slavery opinion; that it
furnished object lessons in the horrors of slavery without cessation
during two generations to communities in many parts of the free
states; that it was largely serviceable in developing, if not in
originating, the convictions of such powerful agents in the cause
as Harriet Beecher Stowe and John Brown; that it alone serves to
explain the enactment of that most remarkable piece of legislation,
the Fugitive Slave Law of 1850; and, finally, that it furnished the
ground for the charge brought again and again by the South against
the North of injury wrought by the failure to execute the law, a
charge that must be placed among the chief grievances of the slave
states at the beginning of the Civil War.
Even in colonial times there was difficulty in recovering fugitive
slaves, because of the aid rendered them by friends, as is apparent
from an examination of some of the regulations that the colonies
began to pass soon after the introduction of slavery in 1619.
The Director and Council of New Netherlands enacted an ordinance
as early as 1640, one of the provisions of which forbade
all inhabitants of New Netherlands to harbor or feed fugitive
servants under a penalty of fifty guilders, "for the benefit of
the Informer; 1/3 for the new Church and 1/3 for the Fiscal."[838]
Other regulations for the same colony contained clauses prohibiting
the entertainment of runaways; such are the laws of 1642,[839]
1648,[840] 1658,[841] and, after the Dutch had been supplanted
by English control, those of 1702[842] and 1730.[843] An act
of Virginia that went into force in 1642 was attributed to the
complaints made at every quarter court "against divers persons
who entertain and enter into covenants with runaway servants and
freemen who have formerly hired themselves to others, to the great
prejudice if not the utter undoing of divers poor men, thereby
also encouraging servants to run from their masters and obscure
themselves in some remote plantation." By way of penalty, to break
up the practice of helping runaways, this law provided that persons
guilty of the offence were to be fined twenty pounds of tobacco
for each night's hospitality.[844] That the law was ineffectual is
indicated by the increase of the penalty in 1655 by the addition to
the twenty pounds of tobacco for each night's entertainment of forty
pounds for each day's entertainment.[845] Similar acts were passed
by Virginia in 1657,[846] 1666,[847] and 1726.[848] The last act
required masters of vessels to swear that they would make diligent
search of their craft to prevent the stowing away of servants or
slaves eager to escape from their owners. An act of Maryland passed
in 1666 established a fine of five hundred pounds of casked tobacco
for the first night's hospitality, one thousand pounds for the
second, and fifteen hundred pounds for each succeeding night.[849]
A law of New Jersey in 1668 laid a penalty of five pounds in
money and such damages as the court should adjudge upon any one
transporting or contriving the transportation of an apprentice
or servant;[850] while another law, enacted seven years later,
declared that every inhabitant guilty of harboring an apprentice,
servant or slave, should forfeit to his master or dame ten shillings
for every day's concealment, and, if unable to pay this amount,
should be liable to the judgment of the court.[851] Provisions are
also to be found in the regulations of Massachusetts Bay,[852]
Rhode Island,[853] Connecticut,[854] Pennsylvania[855] and North
Carolina,[856] clearly intended to discourage the entertainment or
the transportation of fugitives. It is interesting to note that in
these early times Canada was a refuge for fugitives. In 1705 New
York passed a law, which was reënacted ten years later, to prevent
the escape of negro slaves from the city and county of Albany to the
French in Canada. The reason given for the law was the necessity of
keeping from the French in time of war knowledge that might prove
serviceable for military purposes.[857]
[838] _Laws and Ordinances of New Netherlands_, 32.
[839] _Ibid._
[840] _Ibid._, 104.
[841] _Laws of New Netherlands_, 344.
[842] _Acts of Province of New York from 1691 to 1718_, p. 58.
[843] _Ibid._, 193.
[844] _Statutes at Large_, Hening, _Laws of Virginia_, I, 253.
[845] _Ibid._, I, 401.
[846] _Ibid._, I, 439.
[847] _Ibid._, II, 239.
[848] _Ibid._, IV, 168.
[849] _Maryland Archives, Assembly Proceedings_, 147.
[850] _New Jersey Laws_, 82.
[851] _Ibid._, 109.
[852] _Charters and General Laws of the Colony and Province of
Massachusetts Bay_, 386, 750 (1707 and 1718 respectively).
[853] _Proceedings of General Assembly, Colony of Rhode Island
and Providence Plantations, Providence_, 177; _Records of Colony
of Rhode Island_, 177.
[854] _Acts and Laws of His Majestie's Colony of Connecticut_,
229 (1730 probably).
[855] _Province Laws of Pennsylvania_, Philadelphia, 1725;
_Province Laws of Pennsylvania_, 325.
[856] _Laws of North Carolina_, 89 (1741); _Ibid._, 371 (1779).
[857] _Acts of Province of New York_, 77 (1705); _Laws of
Province of New York_, 218 (1715); Marion G. McDougall, _Fugitive
Slaves_, 8.
[Illustration: GERRIT SMITH, M.C.,
the multi-millionnaire, whose mansion in Peterboro, New York, was a
station.]
[Illustration: JOSHUA R. GIDDINGS, M.C.,
who kept a room in his house in Jefferson, Ohio, for fugitives.]
[Illustration: CHARLES SUMNER,
THE CHAMPION OF THE FUGITIVE SLAVE IN THE SENATE OF THE UNITED
STATES.]
[Illustration: RICHARD H. DANA, Jr.,
COUNSEL FOR COLORED REFUGEES IN BOSTON, MASSACHUSETTS.]
The group of enactments just considered together with many other
early measures relating to the subject of fugitives makes it
clear that the question of extradition of runaway slaves had
also arisen in colonial times. A stipulation for the return of
fugitives had been inserted in the formal agreement entered into
by Plymouth, Massachusetts, Connecticut and New Haven at the time
of the formation of the New England Confederation in 1643,[858]
and may be supposed to have remained in force for a period of
forty years. In the first national constitution, the Articles of
Confederation adopted in 1781, no such provision was made. This
omission soon became serious through the action of the states of
Vermont, Pennsylvania, Massachusetts, Connecticut and Rhode Island
between 1777 and 1784 in taking steps toward immediate or gradual
emancipation; for the first time the question of the status of
fugitives in free regions was now raised.
[858] _Plymouth Colony Records_, IX, 5; Marion G. McDougall,
_Fugitive Slaves_, 7.
When, in 1787, the question arose of providing a government for the
territory northwest of the Ohio River, the difficulty was felt;
and the Northwest Ordinance included a clause for the reclamation
of fugitives from labor. A proposition made by Mr. King in 1785 to
prohibit slavery in this region without any provision for reclaiming
fugitives had gone to committee, but was never afterwards called up
in Congress. In the discussion of 1787 an amendment was offered by
Nathan Dane, of Massachusetts, the first clause of which excluded
slavery from the territory, and the second clause provided for
the rendition of fugitives. The previous delay and the prompt and
unanimous approval of the compromise measure of Mr. Dane give force
to the contention of a special student of the Ordinance, that the
stipulation forbidding slavery could not have been adopted without
the provision for the recovery of runaways.[859]
[859] Peter Force, on the Ordinance of 1787, in the _National
Intelligencer_, 1847. See also E. B. Chase's volume, entitled
_Teachings of Patriots and Statesmen, or the "Founders of the
Republic" on Slavery_, 1860, pp. 155, 160, 161, 169.
About six weeks after the incorporation, by the Continental
Congress, of the fugitive slave clause in the Northwest Ordinance, a
similar provision was made a part of the Constitution of the United
States by the vote of the Federal Convention at Philadelphia.[860]
In the case of the Constitution, as of the Ordinance, the
clause was probably necessary for the acceptance and adoption
of the instrument, and the action of the legislative body was
unanimous.[861]
[860] E. B. Chase, _Teachings of Patriots and Statesmen ... on
Slavery_, p. 9.
[861] Alexander Johnston's careful survey of the subject in
the _New Princeton Review_, Vol. IV, p. 183; J. H. Merriam,
_Legislative History of the Ordinance of 1787_, Worcester, 1888;
M. G. McDougall, _Fugitive Slaves_, p. 64.
The settlement reached in regard to fugitives appears to have
excited little comment in the various state conventions called
to ratify the work of the Philadelphia Convention. It would be
interesting to know what was the nature of the discussion on the
point in the North. In the South the tone of sentiment concerning
the matter is illustrated by the remarks of Madison in the Virginia
convention, and of Iredell and Pinckney in the conventions of North
and South Carolina respectively.[862] Madison asserted of the
fugitive clause that it "secures to us that property which we now
possess." Iredell explained that "In some of the Northern states
they have emancipated all their _slaves_. If any of our slaves go
there and remain there a certain time, they would, by the present
laws, be entitled to their freedom, so that their masters could
not get them again. This would be extremely prejudicial to the
inhabitants of the Southern states; and to prevent it this clause
is inserted in the Constitution. Though the word _slave_ is not
mentioned, this is the meaning of it." Pinckney declared: "We have
obtained a right to recover our slaves, in whatever part of America
they may take refuge, which is a right we had not before. In short,
considering the 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."[863]
[862] These views are quoted by E. B. Chase, in his _Teachings of
Patriots and Statesmen ... on Slavery_.
[863] _Ibid._ See also Elliot's _Debates_, Vol. III, 182, 277.
The constitutional provision was, of course, general in its
terms, and, although mandatory in form, did not designate any
particular officer or branch of government to put it into execution.
Accordingly the law of 1793 was enacted. This law, however, was
of such a character as to defeat itself from the beginning.
Before the close of the year in which the measure was passed a
case of resistance occurred, which showed that adverse sentiment
existed in Massachusetts,[864] and three years later another
case--especially interesting because it concerned an escaped slave
of Washington--demonstrated to the first President that there was
strong opposition in New Hampshire to the law.[865] The method of
proof prescribed by the measure was intended to facilitate the
recovery of fugitives, but it was so slack that it encouraged the
abduction of free negroes from the Northern states,[866] and thus,
by the injustice it wrought, stirred many to give protection and
assistance to negroes.[867] The number of cases of kidnapping that
occurred along the southern border of the free states between 1793
and 1850 helps doubtless to explain the development of numerous
initial stations of the Underground Railroad during this period.
[864] Appendix B, p. 367, 6. First recorded case of rescue
(Quincy's case, Boston).
[865] Appendix B, p. 367. Washington's fugitive, October, 1796.
[866] Chapter II, p. 22; Chapter V, p. 120.
[867] _Ibid._
The inefficiency of the first Fugitive Slave Act was early
recognized, and the period during which it was in existence
witnessed many attempts at amendment. It is possible that the
failure of Washington to recover his slave in 1796 furnished the
occasion for the first of these.[868] A motion was made, December
29, 1796, looking toward the alteration of the law.[869] Apparently
nothing was done at this time, and the matter lapsed until 1801,
when it came up in January and again in December of that year.[870]
In the month last named a committee was appointed in the House,
which reported a bill that gave rise to considerable debate. This
bill provided that employing a fugitive as well as harboring one
should be punishable; and that those furnishing employment to
negroes must require them to show official certificates and must
publish descriptions of them. It is reported that 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."[871] Northern
members did not accept this view of the fugitive slave question, and
when the proposed bill was put to vote January 18, 1802, it failed
of passage.[872] The division on the measure took place on sectional
grounds, all the Northern members but five voting against it, all
the Southern members but two for it.[873]
[868] William Goodell, _Slavery and Anti-Slavery_, pp. 231, 232.
[869] _House Journal_, Fourth Congress, Second Session, p. 65;
_Annals of Congress_, pp. 1741, 1767.
[870] _House Journal_, Sixth Congress, Second Session, p. 220;
_Annals of Congress_, p. 1053; _House Journal_, Seventh Congress,
First Session, p. 34; _Annals of Congress_, p. 317.
[871] _House Journal_, Seventh Congress, First Session, p. 125;
_Annals of Congress_, pp. 422, 423.
[872] The vote stood 46 to 43.
[873] _House Journal_, Seventh Congress, First Session, pp. 125,
128; _Annals of Congress_, pp. 423, 425.
For the next fifteen years Congress appears to have given no
consideration to the propriety of amending the law of 1793. Its
attention was mainly occupied by the abolition of the slave-trade,
the agitation preliminary to the War of 1812, and the events of that
War.[874] At length, in 1817, a Senate committee reported a bill
to revise the law, but it was never brought up for consideration.
In the same year a bill was drafted and presented to the House, on
account of the need of a remedy for the increased insecurity of
slave property in the border slave states. Pindall, of Virginia,
seems to have been its originator; at any rate he was the chairman
of the committee that reported the proposition. The interest in the
discussion that resulted was increased, doubtless, by two petitions,
one from the Pennsylvania Abolition Society, asking for a milder
law than that in existence, the other from the Baltimore Quakers,
seeking some security for free negroes against kidnapping.
[874] W. E. B. Du Bois, _The Suppression of the American Slave
Trade_, pp. 105-109.
The House bill as presented in 1817 secured to the claimant of a
runaway the right to prove his title before the courts of his own
state, and thus to reclaim his human property through requisition
upon the governor of the state in which it had taken refuge;
it was further provided that the writ of habeas corpus was to
have no force as against the provisions of the proposed act. The
objections made to the measure are worth noting. Mr. Holmes, of
Massachusetts, disapproved of the effort to dispense with the writ
of habeas corpus, stating that such action would remove a safeguard
from the liberty of free colored people. Mr. Mason, of the same
state, declared against trial by jury, which somebody had proposed,
insisting that "juries in Massachusetts would in ninety-nine cases
out of one hundred decide in favor of fugitives, and he did not
wish his town (Boston) infected with the runaways of the South."
Mr. Sergeant, of Pennsylvania, sought to amend the bill by making
the judges of the state in which the arrest occurred the tribunal
to decide the fact of slavery. And, last of all, Mr. Whitman, of
Massachusetts, opposed the provision making it a penal offence for
a state officer to decline to execute the act; a point, it should
be remarked, that came into prominence in the famous case of Prigg
_vs._ Pennsylvania in 1842. Notwithstanding these efforts to modify
the bill, it was carried without change, January 30, 1818, by a
vote of 84 to 69. In the Senate the bill was not passed without
alteration. After a vote to limit the act to four years, the upper
House made amendments requiring some proofs of the debt of service
claimed other than the affidavit of the claimant, and then passed
the act on March 12. The lower House did not find the modified bill
to its liking, and therefore declined to consider it further.[875]
[875] _House Journal_, Fifteenth Congress, First Session, pp.
50, 86, 182, 186, 189, pp. 193, 198; _Annals of Congress_, pp.
446, 447, 513, 829-831, 838, 840, 1339, 1393. _Senate Journal_,
Fifteenth Congress, First Session, pp. 128, 135, 174, 202, 227,
228, 233; _House Journal_, p. 328; _Annals of Congress_, pp.
165, 210, 259, 262, 1339, 1716; T. H. Benton, _Abridgment of
the Debates of Congress_, Vol. VI, pp. 35, 36, 37, 110; M. G.
McDougall, _Fugitive Slaves_, pp. 21-23; Lalor's _Cyclopædia_,
Vol. II, pp. 315, 316; Schouler, _History of the United States_,
Vol. III, p. 144.
This failure to secure a new general fugitive slave act by no means
prevented those interested from renewing their endeavors in that
direction. Before the close of the year the House was prompted to
bestir itself again by a resolution of the Maryland legislature
asking protection against citizens of Pennsylvania who were charged
with harboring and protecting fugitive slaves.[876] That the
allegation was well founded cannot be doubted. Evidence has already
been adduced to show that numerous branches of the Underground
Railroad had begun to develop in southeastern Pennsylvania as early
at least as the year 1800.[877] A month after the presentation of
the Maryland resolution a committee of the House was appointed.
This committee reported a bill without delay, but again nothing was
accomplished. The framing of the Missouri Compromise at the next
session of Congress, in 1820, gave opportunity for the incorporation
of a fugitive recovery clause, to enable Southern settlers in
Missouri and other slave states to recapture their absconding slaves
from the free territory north of the new state.[878] The fugitive
clause in the Ordinance of 1787 had insured the same right for
slave-owners taking land along the western frontier of Illinois.
[876] McDougall, _Fugitive Slaves_, p. 23.
[877] Chapter II, pp. 21, 22.
[878] _Annals of Congress_, Sixteenth Congress, First Session,
pp. 1469, 1587. McDougall, _Fugitive Slaves_, p. 23. It will be
remembered that according to the compromise Missouri was to be
admitted into the Union as a slave state, while slavery was to be
prohibited in all other territory gained from France north of 36
degrees 30 minutes. See Appendix A, p. 361.
But of what utility were such provisions unless they could be
carried into effect? Immediately after the Missouri Compromise
became a law, propositions for new fugitive slave acts were again
offered in both the House and the Senate.[879] A later attempt
was made in the winter of 1821-1822, when another resolution of
the Maryland legislature similar to the one mentioned above was
presented. These efforts, like the earlier ones, failed to secure
the desired legislation.[880]
[879] _House Journal_, Sixteenth Congress, First Session, p. 427.
[880] _Senate Journal_, Sixteenth Congress, First Session,
pp. 319, 326; _Annals of Congress_, p. 618; _House Journal_,
Seventeenth Congress, First Session, p. 143; _Annals of
Congress_, pp. 553, 558, 710. _Annals of Congress_, Seventeenth
Congress, First Session, pp. 1379, 1415, 1444; Benton,
_Abridgment of the Debates of Congress_, Vol. VI, p. 296;
McDougall, _Fugitive Slaves_, pp. 23, 24.
The last petition of Maryland to Congress for the redress of
her grievance due to the underground operations of anti-slavery
Pennsylvanians was made December 17, 1821. The month of January
of the same year had witnessed the presentation in Congress of a
resolution from the general assembly of Kentucky, protesting against
Canada's admission of fugitives to her domain, and requesting
negotiation with Great Britain on the subject. In 1826, during
the administration of John Quincy Adams, negotiations were at
length opened. Henry Clay, then Secretary of State, instructed
Mr. Gallatin, the American Minister at the Court of St. James, to
propose an agreement between the two countries providing for "mutual
surrender of all persons held to service or labor, under the laws
of either party, who escape into the territory of the other." His
purpose in urging such a stipulation was, he declared, "to provide
for a growing evil which has produced some, and if it be not shortly
checked, is likely to produce much more irritation." He also stated
that Virginia and Kentucky were particularly anxious that an
understanding should be reached.
In February, 1827, Mr. Clay again communicated with Mr. Gallatin
on the subject, being led to do so by another appeal made to the
general government by the legislature of Kentucky. At this time he
mentioned the fact that a provision for the restoration of fugitive
slaves had been inserted in the treaty recently concluded with the
United Mexican States, a treaty, it should be added, that failed
of confirmation by the Mexican Senate. About five months later the
American Minister sent word to the Secretary of State that the
English authorities had decided that "It was utterly impossible
for them to agree to a stipulation for the surrender of fugitive
slaves," and this decision was reaffirmed in September, 1827.
The positive terms in which this conclusion was announced by
the representative of the British government might have been
accepted as final at this time had not further consideration of
the question been demanded by the House of Representatives. On
May 10, 1828, that body adopted a resolution "requesting the
President to open a negotiation with the British government in the
view to obtain an arrangement whereby fugitive slaves, who have
taken refuge in the Canadian provinces of that government, may be
surrendered by the functionaries thereof to their masters, upon
their making satisfactory proof of their ownership of said slaves."
This resolution was promptly transmitted to Mr. Barbour, the new
Minister, with the explanation before made to Gallatin, that the
evil at which it was directed was a growing one, well calculated to
disturb "the good neighborhood" that the United States desired to
maintain with the adjacent British provinces. But as in the case
of the former attempts to secure the extradition of the refugee
settlers in Canada, so also in this, the advances of the American
government were met by the persistent refusal of Great Britain to
make a satisfactory answer.[881]
[881] Niles' _Weekly Register_, Vol. XXXV, pp. 289-291; S. G.
Howe, _The Refugees from Slavery in Canada West_, pp. 12-14;
William Goodell, _Slavery and Anti-Slavery_, p. 264; M. G.
McDougall, _Fugitive Slaves_, p. 25.
The agitation in Congress for a more effective fugitive slave law,
and the diplomatic negotiations for the recovery of runaways from
Canadian soil, which have been recounted in the preceding pages,
must be regarded as furnishing evidence of the existence in many
localities in the free states of a strong practical anti-slavery
sentiment. This evidence is reënforced by the facts presented in
the earlier chapters of this volume. The escape of slaves from
their masters into the free states and their simple but impressive
appeals for liberty were phenomena witnessed again and again by many
Northern people during the opening as well as the later decades
of the nineteenth century; and deepened the conviction in their
minds that slavery was wrong. Thus for years the runaway slave was
a missionary in the cause of freedom, especially in the rapidly
settling Western states. His heroic pilgrimage, undertaken under
the greatest difficulties, was calculated to excite active interest
in his behalf. Persons living along the border of the slave states,
whose sympathies were stirred to action by their personal knowledge
of the hardships of slavery, became the promoters of lines of
Underground Railroad, sending or taking fugitives northward to
friends they could trust. It was not an infrequent occurrence that
intimate neighbors were called in to hear the thrilling tales of
escape related in the picturesque and fervid language of negroes
that valued liberty more than life. The writer, who has heard some
of these stories from the lips of surviving refugees in Canada,
can well understand the effect they must have produced upon the
minds of the spectators. Many children got their lasting impression
of slavery from the things they saw and heard in homes that were
stations on the Underground Road. John Brown was reared in such a
home. His father, Owen Brown, was among the earliest settlers of the
Western Reserve in Ohio that are known to have harbored fugitives,
and the son followed the father's example in keeping open house
for runaway slaves.[882] As early as 1815 many blacks began to
find their way across the Reserve,[883] and it is stated that even
before this year more than a thousand fugitives had been assisted
on their way to Canada by a few anti-slavery people of Brown County
in southwestern Ohio.[884] It is probable that numerous escapes
were also being made thus early through other settled regions. The
cause for this early exodus is not far to seek. The increase of the
domestic slave-trade from the northern belt of slaveholding states
to the extreme South, due to the profitableness of cotton-raising,
and stimulated by the prohibition of the foreign slave-trade in
1807, aroused slaves to flight in order to avoid being sold to
unknown masters in remote regions. The slight knowledge they
needed to guide them in a northerly course was easily obtainable
through the rumors about Canada everywhere current during the War
of 1812.[885] The noticeable political effects of the straggling
migration that began under these circumstances is seen in the
renewed agitation by Southern members of Congress during the years
1817 to 1822 for a more stringent Fugitive Slave Law, and the
negotiations with England several years later looking toward the
restoration to the South of runaways who had found freedom and
security on Canadian soil.
[882] Chapter II, p. 37.
[883] _Ibid._, pp. 37, 38.
[884] William Birney, _James G. Birney and His Times_, p. 435.
[885] Chapter II, p. 27.
The influence of the Underground Road in spreading abroad an abiding
anti-slavery sentiment was, of course, greatly restricted by the
caution its operators had to observe to keep themselves and their
protégés out of trouble. The deviating secret routes of the great
system were developed in response to the need of passengers that
were in constant danger of pursuit. It is this fact of the pursuit
of runaways into various communities where they were supposed to
be in hiding, together with the harsh scenes enacted by hireling
slave-catchers in raiding some station of the Underground Road, that
gave to the operations of the Road that publicity necessary to make
converts to the anti-slavery cause. During the earlier years of the
Road's development the pursuit of runaways was not so common as it
came to be after 1840, and later, after the passage of the second
Fugitive Slave Law in 1850; but cases are recorded, as already
noted, in 1793 in Boston, 1804 in eastern Pennsylvania, 1818 in New
Bedford, Massachusetts, and elsewhere. These are but illustrations
of a class of early cases that brought the question of slavery home
to many Northern communities with such force as could not have been
done in any other way. These cases, like the numerous cases of
kidnapping that occurred during the same period, contributed not
a little to keep alive a sentiment that was steadily opposed to
slavery, and that expressed and strengthened itself in the practice
of harboring and protecting fugitives. The great effect upon public
opinion of these cases, and such as these, appears from the sad
affair of Margaret Garner, a slave-woman who escaped from Boone
County, Kentucky, late in January, 1856, and found shelter with
her four children in the house of a colored man near Cincinnati,
Ohio. Rather than see her offspring doomed to the fate from which
she had hoped to save them, she nerved herself to accomplish their
death. While her master, successful in his pursuit, was preparing to
take them back across the river, she began the work of butchery by
killing her favorite child. Before she could finish her awful task
she was interrupted and put in prison. The efforts to prevent her
return to Southern bondage proved unavailing, and she was at length
delivered to her master, together with the children she had meant to
kill. President R. B. Hayes, who was practising law in Cincinnati at
the time, and lived on a pro-slavery street, told Professor James
Monroe, of Oberlin College, that the tragedy converted "the whole
street," and that the day after the murder "a leader among his
pro-slavery neighbors" called at his house, and declared with great
fervor, "Mr. Hayes, hereafter I am with you. From this time forward,
I will not only be a black Republican, but I will be a _damned
abolitionist_!"[886]
[886] James Monroe, _Oberlin Thursday Lectures, Addresses, and
Essays_, 1897, p. 116. See Appendix B, pp. 367-377, for cases
under the Slave laws.
That the doctrine of immediate abolition should find expression
during the years in which the underground movement was in its
initial stage of development, is a fact the importance of
which should be given due recognition in tracing the growth of
anti-slavery sentiment to 1830, and in showing thus what was
the preparation of the North for the advent of Garrison and his
followers, and for the party movements in opposition to slavery. It
is surely worthy of remark in this connection that, of the three men
that promulgated the idea of immediate abolition before 1830, one
published a book, containing, besides other things, an argument in
support of the assistance rendered to fugitive slaves, while another
was known both in Ohio and in the Southern states as an intrepid
underground operator.
Of the trio the first in point of time as also in pungency of
statement was the Rev. George Bourne, who went to live in Virginia
about 1809 after several years residence in Maryland. Mr. Bourne's
acquaintance with slavery impressed him deeply with the evils of
the system, and he accordingly felt constrained to preach and also
to publish some vehement protests against it. For this he was
persecuted and driven from Virginia, and, like a hunted slave, he
found his way in the night into Pennsylvania, where he settled with
his family. Among his writings is a small volume entitled _The
Book and Slavery Irreconcilable_, published in 1816 and addressed
to all that professed to be members of Christian churches. In
it the author vigorously and repeatedly urged the "immediate and
total abolition" of slavery, and warned his contemporaries of the
consequences of continuing the system until by its growth it should
endanger the Union. He could discover no palliative suitable to the
evil. "The system is so entirely corrupt," he said, "that it admits
of no cure but by a total and immediate abolition. For a gradual
emancipation is a virtual recognition of the right, and establishes
the rectitude of the practice. If it be just for one moment, it is
hallowed forever; and if it be inequitable, not a day should it be
tolerated."[887]
[887] These quotations are taken from the summary of Bourne's
_The Book and Slavery Irreconcilable_, given in the _Boston
Commonwealth_, July 25, 1885, since the original was inaccessible
to the present writer. The summary is known to be trustworthy.
See _The Life of Garrison_, by his children, Vol. I, postscript
to the Preface, and the references to the original there given.
Eight years after the appearance of the book containing these
uncompromising views, a treatise was published at the town of
Vevay on the Ohio River in southeastern Indiana by the Rev. James
Duncan. This small work was entitled _A Treatise on Slavery, in
which is shown forth the Evil of Slaveholding, both from the Light
of Nature and Divine Revelation_. The purpose of the work as set
forth by the author was to persuade all slaveholders that they
were "guilty of a crime, not only of the highest aggravation,
but one that, if persisted in," would "inevitably lead them to
perdition."[888] He therefore assailed the principle of slavery,
denying the argument admitted by some of the apologists for slavery
among his contemporaries, namely, "that the emancipation of slaves
need not be sudden, but gradual, lest the possessors of them should
be too much impoverished, and lest the free inhabitants might be
exposed to danger, if the blacks were all liberated at once." This
doctrine of the inexpediency of immediate abolition Mr. Duncan
denied, taking the position that such excuses would "go to justify
the practice of slaveholding, because the only motive that men can
have to practise slavery is that it may be a means of preventing
poverty and other penal evils. If the fear of poverty or any penal
sufferings will exculpate the possessors of slaves from blame for
a few months or years, it will do it for life; and if some may be
lawfully held to labor without wages, all may be held the same
way; and if the principle of slavery is morally wrong, it ought
not to be practised to avoid any penal evil, but if just, even the
cruel treatment of slaves would not condemn the practice."[889] He
maintained that, although the different sections of the country
were not equally guilty of the sins of slaveholding, yet the nation
as a whole was responsible for the evil,--on account of the number
in the free states that were friendly to slavery, on account also
of the advocacy by Northern representatives of the policy of
slavery extension, and, finally, on account of the slack zeal of
some of those inimical to the institution.[890] He proposed that
Christians should have no church fellowship with slaveholders; he
urged political action against slavery; and he supplemented the
assertion that it was the duty of slaves to escape if they could,
by the statement that it was impossible for any one to hinder
or prevent their escape without flying in the face of the moral
law.[891] As regards gradualism, which was practised in some states,
he said: "If it is lawful to hold a man in bondage until he is
twenty-eight years of age, it must be equally lawful to hold him to
the day of his death; and if it is sinful to hold him to the day
of his death, it must partake of the same species of crime to hold
him until he is twenty-eight."[892] The arguments in support of
his position he based largely upon the Decalogue, the Golden Rule
and other scriptural injunctions, as well as upon the Declaration
of Independence and the Constitution of the United States.[893]
Underground operators always justified themselves on these grounds;
and their motives in joining the Liberty and Free Soil parties
later--as many of them did--appear not to have been other than the
motives of Bourne and Duncan in advocating political action against
slavery.
[888] Preface, p. viii.
[889] Preface, pp. vii, viii.
[890] _A Treatise on Slavery_, reprinted by the American
Anti-Slavery Society, 1840, p. 59.
[891] _Ibid._, p. 107. In advocating political action Mr. Duncan
said, "The practice of slaveholding in a slave state need not
deter emancipators or others from the privilege of voting for
candidates to the legislative bodies, or from using their best
endeavors to have men placed in office that would be favorable
to the cause of freedom, and who may be best qualified to govern
the state or commonwealth, but it ought to prevent any from
officiating as a magistrate, when his commission authorizes him
to issue a warrant to apprehend the slave when he is guilty of no
other crime than that of running away from unmerited bondage."
This was not the first time political action was proposed,
for Mr. Bourne declared in his work (_The Book and Slavery
Irreconcilable_): "Every voter for a public officer who will not
destroy the system, is as culpable as if he participated in the
evil, and is responsible for the protraction of the crime." See
the _Boston Commonwealth_, July 25, 1885.
[892] _A Treatise on Slavery_, p. 123.