CHAPTER II.

THE LAW OF THE LAND.

The Early Compromises of the Constitution--Pennsylvania’s Move

Toward Abolition--The Act of 1826--The Prigg Case--Border

Troubles--The Fugitive Slave Law of 1850--Wrongs of Escaped Slaves

and Rights of Their Owners.

It is entirely unnecessary for the purposes of this particular story to

enlarge upon, or to review at length, the long debate, the innumerable

compromises, the many makeshifts and the unending controversies which

attended the discussion of the slavery question from the agitation and

adoption of the Federal Constitution to the enactment of the Fugitive

Slave Law of 1850--and which then left it utterly unsettled. It is,

however, important that a few plain landmarks of the law be kept in

sight to guide one who would fitly study the general history of the

times and fairly estimate the significance of the local events to be

narrated.

The Union of the States was only effected by the adoption of Art. IV;

the general purpose of which was to require each State to give full

faith and credit to the public acts and records of other States. The

exact language of its section 3 was:

“No Person held to Service or Labour in one State, under the Laws

thereof, escaping into another, shall, in Consequence of any Law or

Regulation therein, be discharged from such Service or Labour, but

shall be delivered up on Claim of the Party to whom such Service or

Labour may be due.”

No union could have been effected without this agreement. Whether that

federation was a contract from which any party to it could retire,

for a violation of it by other parties thereto, need not be discussed

here. The affirmative of that proposition was not the creed of any

particular party or section. It was originally maintained by New

England Federalists; it was later defended by Southern Democrats; it

was at last decided adversely in battle and by the sword. While there

is now general acquiescence in the result, the final decision was not

the prevailing doctrine of the people of the United States in 1851.

Under the Constitution the Right to Reclaim the fugitive slave was no

more unmistakable than the Duty to Return him. The Law of the Land gave

to each State the right to regulate its own domestic institutions;

and that right was expressly recognized and guaranteed even by the

Republican party and by Abraham Lincoln long after the outbreak of the

Civil War. The slavery questions upon which political parties differed

up to 1851 were not disputes as to the rights of slave owners and

slaves in Slave States; nor as to the rights of slave owners against

their escaped slaves in Free States, but as to the extension of slavery

and the status of the institution in the National territories.

The prevailing popular misapprehension on this subject may be easily

pardoned when it is observed that so eminent an authority as Oswald

Garrison Villard, in his recent excellent biography of John Brown, says

the Fugitive Slave Law of 1850 “made legal in the North the rendition

of negroes who had found their way to Free States.” That proposition

was recognized by all political parties from 1793 to 1863.

[Illustration: DICKINSON GORSUCH.

DANGEROUSLY WOUNDED IN THE RIOT]

The Fugitive Slave Act of 1793 was passed in strict conformity with the

Constitution of the United States; and it impressed upon the executive

authorities of the several States the duty of arrest, and upon their

magistrates the obligation to hear and commit the fugitives for return.

That act was generally recognized as just in its essence and object. As

late as 1850 even the Free Soil party assented to the legal principle

it involved. In execution, however, its processes were greatly abused;

unlawful seizures, unwarranted reclamations and ruthless kidnappings

were common occurrences in the lower parts of the Border States along

the line of Slavery and Freedom. Pennsylvania, after respectful

hearing of the Maryland Commissioners and due consideration for their

suggestions, enacted the Act of 1826, which made the State Courts the

arbiters of claims to fugitives; forbade justices to exercise these

powers; and, in the line of Pennsylvania’s movements since 1780 to

extinguish slavery and protect free persons, it made the free-born

children of escaped slaves citizens of Pennsylvania and put them under

its protection.

This legislation accorded with judicial decisions of the highest court

in Pennsylvania. In Commonwealth _v._ Halloway, 2 S. & R., 305 (1816),

Mary, a negro slave of James Course of Maryland, absconded from her

master and came to Philadelphia, where, after she had resided for about

two years, her child Eliza was born. It was held that under the Act of

March 1, 1780, which Pennsylvania passed “for the gradual abolition of

slavery,” this child, born as she was, was entitled to freedom; that

the provision of the Federal Constitution for the return of a slave

from one state “escaping into another,” did not apply to the free-born

child of a fugitive, and that even under the Constitution of the United

States the child Eliza was born free. Justice Gibson filed a concurring

opinion, at the conclusion of which he said: “Whether this case is

to be considered a hard one or not will depend much upon the temper

with which the mind may contemplate the positive and artificial rights

of the master over the mother, on the one hand, or on the other the

natural rights of her child.”

After the Act of 1826 the border troubles, especially between York and

Lancaster Counties, Pennsylvania, and Cecil, Harford and Baltimore

Counties, Maryland, were much intensified. Mason and Dixon line was

the imaginary demarcation between two wholly antagonistic social and

political orders. The same person might be a Maryland slave under

Maryland law and a Pennsylvania freeman under Pennsylvania law. Owners

and agents, armed with Maryland authority to reclaim property, made

theirs by Maryland law, were felonious kidnappers in Pennsylvania.

The anomalous condition of affairs and the legal difficulties arising

out of it are best illustrated by actual facts. A slave woman escaped

from her owner, James S. Mitchell, of Cecil County, Maryland, in 1845.

During her absence, as a fugitive from his service, she had given birth

in New Jersey to an illegitimate child. Through the instrumentality

of agents, residing in Pennsylvania, Mitchell apprehended the woman,

who together with the child, had been delivered to him at Elkton, in

Cecil County. The woman was taken in Pennsylvania by George P. Alberti

and James Frisby. These agents, themselves fearing to incur possible

responsibilities, had repeatedly refused to take the child with the

mother; until finally overcome by the entreaties of the mother herself,

they yielded to their feelings of benevolence, and assumed the risk.

They were arrested for kidnapping; evidence to show their motives in

including the child in the return was excluded, and they were sentenced

to long terms in the penitentiary--for permitting it to accompany the

mother, whose own recapture and return by them were admittedly lawful.

The state of the record of the case was such that it could not be

appealed to the United States Supreme Court. Mitchell himself, who had

not even been in Pennsylvania, was indicted here for kidnapping the

child and was subject to seven years in the penitentiary. The Governor

of Pennsylvania issued, and the Governor of Maryland declined to honor,

a requisition for him. There were many other cases of which this was a

type.

On the other hand, there were unquestionably well-authenticated cases

of slaves returned in violation of their legal claims and of free

negroes brutally kidnapped and remorselessly sold to slavery without a

fair hearing and adjudication of their rights. The offenders were often

protected by legal technicalities, obstructions or difficulties, and by

friendly jurisdictions North or South.

A case pregnant with great legal and political consequences finally

arose under the conflicting claims of Maryland and Harford County on

one side and Pennsylvania and York County on the other. It reached the

Supreme Court of the United States and the contest was a momentous

battle in the campaign of pro- and anti-slavery agitation. Lawyers will

find it fully reported in 16 Peters, U. S., 539 (1842):

Edward Prigg, a citizen of Harford County, Maryland, together with

Nathan S. Bemis, Jacob Forward and Stephen Lewis, Jr., were indicted

in York County, Pennsylvania, O. and T., for kidnapping an alleged

free child of Margaret Morgan, in violation of the Pennsylvania law of

1826, which made it a felony, punishable with from seven to twenty-one

years imprisonment at hard labor, to carry off, sell or detain a free

negro from Pennsylvania. Prigg was the agent--and the others his

assistants--of Margaret Ashmore, owner of Margaret Morgan, who escaped

from her and fled to Pennsylvania in 1832. Her children, taken back to

Maryland by Prigg, were born in Pennsylvania--one of them more than a

year after she escaped. Under Pennsylvania law they were free; under

Maryland law and the common law principle that “the brood follows the

dam” they were slaves.[A] To avert the disastrous results that always

follow a conflict of laws between neighbors, Pennsylvania and Maryland

agreed that the facts should be the subject of a special verdict, so

that after Prigg’s conviction and sentence his case might be heard and

the issue it involved be determined by the highest Federal Court of

final jurisdiction and of last resort.

The United States Supreme Court held that the Federal Constitution

self-executed its provisions; that the owner of a fugitive slave could

retake him wherever found; and that the National government--not the

State governments--must support and enforce this right; that the

Fugitive Slave Law of 1793 recognized this and left nothing on the

subject to State regulation. But the Court doubted whether State

magistrates or officials were bound to perform any duty imposed upon

them in this respect by a Federal law; and the State statute under

which Prigg was indicted was held to be unconstitutional and void.

In the discussion Meredith and Hambley appeared for Prigg, and

virtually for Maryland. For the Commonwealth of Pennsylvania appeared

Attorney General Ovid F. Johnson (under Governor D. P. Porter); and he

frankly stated that the real and substantial parties to the controversy

were Maryland and Pennsylvania, whose officials came into that high

Court “to terminate disputes and contentions which were arising and had

for years arisen along the border line between them on this subject of

the escape and delivering up of fugitive slaves. Neither party sought

the defeat or the humiliation of the other. It was for the triumph of

the law they presented themselves before the Court. They were engaged

under an imperative sense of duty in the work of peace; and he hoped he

would be pardoned if he added of patriotism also.”

Story, of Massachusetts, delivered the Court’s opinion. He had been

appointed by Madison, served a long time on the bench and was a jurist

of high renown; but Taney, C. J., while concurring in the judgment,

expressly dissented from the doctrine that the State authorities were

“prohibited from interfering for the purpose of protecting the rights

of the master and aiding him in the recovery of his property.” He

thought the contrary to be not only the right, but the duty of the

State. The Federal Constitution meant this when it declared “the

fugitive shall be given up.” He predicted that if the State officials

under the State laws could not arrest the fugitive, “the territory of

the State must soon become an open pathway for the fugitives escaping

from other States.” Justices Baldwin and Thompson concurred with Taney;

Wayne with Story, and also Daniel, filing opinions. McLean held that

Congress might prescribe the duty of State officers. All seven Justices

expressed separate opinions.

Taney’s forecast was right. Maryland and Pennsylvania--especially the

southeastern counties of this State--soon became an open pathway for

the fugitive slaves. Their track was lighted from many a window in the

households of the Chester Valley; and two main lines of the Underground

Railroad ran through Lancaster County, close to where the two lines of

the great steam railway which traverses it from east to west are now

located.

Acquiescing in this decision Pennsylvania, in 1847, repealed the

provisions of the Act of 1826 repugnant to the Federal Constitution;

and remanded the whole subject to Congress. Like legislation in other

States left the slaveholders stripped of the remedies they claimed

under the Constitution. Hence the Fugitive Slave Law of 1850, with its

more drastic processes, manifold deputies marshal, “_posse comitatus_”

of the bystanders, penalties for obstruction of processes and many

other provisions--which if they had been tolerable under the conditions

prevailing long after 1793, had now become odious to the largely

increased and rapidly increasing number of persons who were opposed to

all forms of slavery, regardless of its constitutional protection or

right at law.

For this class Lancaster County’s then representative in Congress,

Thaddeus Stevens, was the boldest and most aggressive spokesman. When,

in 1851, he denounced every form of human slavery he was so far in

advance of his party (Whig then and Republican ten years later) that

in 1861 a Republican Congress, Charles Francis Adams, of Massachusetts,

the first Free Soil Candidate for Vice President, heading the “Ayes,”

by an overwhelming vote declared that all attempts of the States to

override or obstruct the Fugitive Slave Law were unconstitutional and

“dangerous to the peace of the Union”; that all enactments to that

end should be repealed and there was no authority outside of a State

wherein then existed a right “to interfere with slaves or slavery in

such States, in disregard of the rights of their owners or the peace of

society.”

[Illustration: AN OLD SOUTHERN COOK.

SLAVE AND SERVANT IN THE GORSUCH FAMILY. MORE THAN 100 YEARS OLD.]

The Christiana Riot and the Treason Trials of 1851: An Historical Sketch · 第 2 / 13 章