FUGITIVE SLAVES--ORDINANCE OF 1787: THE CONSTITUTION: ACT OF 1793:
ACT OF 1850.
It is of record proof that the anti-slavery clause in the ordinance
of 1787, could not be passed until the fugitive slave recovery
clause was added to it. That anti-slavery clause, first prepared
in the Congress of the confederation by Mr. Jefferson in 1784,
and rejected, remained rejected for three years--until 1787; when
receiving the additional clause for the recovery of fugitives,
it was unanimously passed. This is clear proof that the first
clause, prohibiting slavery in the Northwest territory, could not
be obtained without the second, authorizing the recovery of slaves
which should take refuge in that territory. It was a compromise
between the slave States and the free States, unanimously agreed
to by both parties, and founded on a valuable consideration--one
preventing the spread of slavery over a vast extent of territory,
the other retaining the right of property in the slaves which might
flee to it. Simultaneously with the adoption of this article in
the ordinance of 1787 was the formation of the constitution of
the United States--both formed at the same time, in neighboring
cities, and (it may be said) by the same men. The Congress sat in
New York--the Federal Convention in Philadelphia--and, while the
most active members of both were members of each, as Madison and
Hamilton, yet, from constant interchange of opinion, the members
of both bodies may be assumed to have worked together for a
common object. The right to recover fugitive slaves went into the
constitution, as it went into the ordinance, simultaneously and
unanimously; and it may be assumed upon the facts of the case, and
all the evidence of the day, that the constitution, no more than
the ordinance, could have been formed without the fugitive slave
recovery clause contained in it. A right to recover slaves is not
only authorized by the constitution, but it is a right without which
there would have been no constitution, and also no anti-slavery
ordinance.
One of the early acts of Congress, as early as February, '93, was
a statute to carry into effect the clause in the constitution for
the reclamation of fugitives from justice, and fugitives from labor;
and that statute, made by the men who made the constitution, may
be assumed to be the meaning of the constitution, as interpreted
by men who had a right to know its meaning. That act consisted of
four sections, all brief and clear, and the first two of which
exclusively applied to fugitives from justice. The third and fourth
applied to fugitives from labor, embracing apprentices as well as
slaves, and applying the same rights and remedies in each case:
and of these two, the third alone contains the whole provision for
reclaiming the fugitive--the fourth merely containing penalties for
the obstruction of that right. The third section, then, is the only
one essential to the object of this chapter, and is in these words:
"That when a person held to labor in any of the United
States, or in either of the territories on the north-west,
or south of Ohio, under the laws thereof, shall escape into
any other of said States or territories, the person to whom
such labor is due, his agent or attorney, is hereby empowered
to seize or arrest such fugitive from labor, and to take him
or her before any judge of the circuit or district courts of
the United States, residing or being within the State, or
before any magistrate of a county, city, or town corporate,
wherein such seizure or arrest shall be made, and upon proof
to the satisfaction of such judge or magistrate, either by
oral testimony, or affidavit taken before and certified by a
magistrate of any such State or territory, that the person
so seized and arrested, doth under the laws of the State or
territory from which he or she fled, owe service to the person
claiming him or her, it shall be the duty of such judge or
magistrate to give a certificate thereof to such claimant,
his agent or attorney, which shall be sufficient warrant for
removing the said fugitive from labor, to the State or territory
from which he or she fled."
This act was passed on the recommendation of President Washington,
in consequence of a case having arisen between Pennsylvania and
Virginia, which showed the want of an act of Congress to carry the
clause in the constitution into effect. It may be held to be a fair
interpretation of the constitution, and by it the party claiming the
service of the fugitive in any State or territory, had the right
to seize his slave wherever he saw him, and to carry him before
a judicial authority in the State; and upon affidavit, or oral
testimony, showing his right, he was to receive a certificate to
that effect, by virtue of which he might carry him back to the State
from which he had fled. This act, thus fully recognizing the right
of the claimant to seize his slave by mere virtue of ownership, and
then to carry him out of the State upon a certificate, and without
a trial, was passed as good as unanimously by the second Congress
which sat under the constitution--the proceedings of the Senate
showing no division, and in the House only seven voting against
the bill, there being no separate vote on the two parts of it, and
two of these seven from slave States (Virginia and Maryland). It
does not appear to what part these seven objected--whether to the
fugitive slave sections, or those which applied to fugitives from
justice. Such unanimity in its passage, by those who helped to make
the constitution, was high evidence in its favor: the conduct of the
States, and both judiciaries, State and federal, were to the same
effect. The act was continually enforced, and the courts decided
that this right of the owner to seize his slave, was just as large
in the free State to which he had fled as in the slave State from
which he had run away--that he might seize, by night as well as
by day, of Sundays as well as other days; and, also, in a house,
provided no breach of the peace was committed. The penal section
in the bill was clear and heavy, and went upon the ground of the
absolute right of the master to seize his slave by his own authority
wherever he saw him, and the criminality of any obstruction or
resistance in the exercise of that right. It was in these words:
"That any person who shall knowingly and wilfully obstruct or
hinder such claimant, his agent or attorney, in so seizing
or arresting such fugitive from labor, or shall rescue such
fugitive from such claimant, his agent or attorney, when so
arrested pursuant to the authority herein given or declared; or
shall harbor or conceal such person after notice that he or she
was a fugitive from labor as aforesaid, shall, for either of the
said offences, forfeit and pay the sum of five hundred dollars.
Which penalty may be recovered by and for the benefit of such
claimant, by action of debt in any court proper to try the same,
saving moreover to the person claiming such labor or service
his right of action for or on account of the said injuries, or
either of them."
State officers, the magistrates and judges, though not bound to act
under the law of Congress, yet did so; and State jails, though not
obligatory under a federal law, were freely used for the custody
of the re-captured fugitive. This continued till a late day in
most of the free States--in all of them until after the Congress
of the United States engaged in the slavery agitation--and in the
great State of Pennsylvania until the 20th of March, 1847: that is
to say, until a month after the time that Mr. Calhoun brought into
the Senate the slavery resolutions, stigmatized by Mr. Benton as
"fire-brand," at the moment of their introduction, and which are
since involving the Union in conflagration. Then Pennsylvania passed
the act forbidding her judicial authorities to take cognizance of
any fugitive slave case--granted a habeas corpus remedy to any
fugitive arrested--denying the use of her jails to confine any
one--and repealing the six months' slave sojourning law of 1780.
Some years before the passage of this harsh act, and before the
slavery agitation had commenced in Congress, to wit, 1826 (which was
nine years before the commencement of the agitation), Pennsylvania
had passed a most liberal law of her own, done upon the request of
Maryland, to aid the recovery of fugitive slaves. It was entitled,
"_An act to give effect to the Constitution of the United States
in reclaiming fugitives from justice_." Such had been the just and
generous conduct of Pennsylvania towards the slave States until up
to the time of passing the harsh act of 1847. Her legal right to
pass that act is admitted; her magistrates were not bound to act
under the federal law--her jails were not liable to be used for
federal purposes. The sojourning law of 1780 was her own, and she
had a right to repeal it. But the whole act of '47 was the exercise
of a mere right, against the comity which is due to States united
under a common head, against moral and social duty, against high
national policy, against the spirit in which the constitution
was made, against her own previous conduct for sixty years; and
injurious and irritating to the people of the slave States, and
parts of it unconstitutional. The denial of the intervention of
her judicial officers, and the use of her prisons, though an
inconvenience, was not insurmountable, and might be remedied by
Congress; the repeal of the act of 1780 was the radical injury and
for which there was no remedy in federal legislation.
That act was passed before the adoption of the constitution, and
while the feelings of conciliation, good will, and entire justice,
prevailed among the States; it was allowed to continue in force near
sixty years after the constitution was made; and was a proof of good
feeling towards all during that time. By the terms of this act, a
discrimination was established between sojourners and permanent
residents, and the element of time--the most obvious and easy of all
arbiters--was taken for the rule of discrimination. Six months was
the time allowed to discriminate a sojourner from a resident; and
during that time the rights of the owner remained complete in his
slave; after the lapse of that time, his ownership ceased. This six
months was equally in favor of all persons; but there was a further
and indefinite provision in favor of members of Congress, and of
the federal government, all of whom, coming from slave States,
were allowed to retain their ownership as long as their federal
duties required them to remain in the State. Such an act was just
and wise, and in accordance with the spirit of comity which should
prevail among States formed into a Union, having a common general
government, and reciprocating the rights of citizenship. It is to be
deplored that any event ever arose to occasion the repeal of that
act. It is to be wished that a spirit would arise to re-enact it;
and that others of the free States should follow the example. For
there were others, and several which had similar acts, and which
have repealed them in like manner, as Pennsylvania--under the same
unhappy influences, and with the same baleful consequences. New
York, for example--her law of discrimination between the sojourner
and the resident, being the same in principle, and still more
liberal in detail, than that of Pennsylvania--allowing nine months
instead of six, to determine that character.
This act of New York, like that of Pennsylvania, continued
undisturbed in the State, until the slavery agitation took root
in Congress; and was even so well established in the good opinion
of the people of that State, as late as thirteen years after the
commencement of that agitation, as to be boldly sustained by the
candidates for the highest offices. Of this an eminent instance
will be given in the canvass for the governorship of the State,
in the year 1838. In that year Mr. Marcy and Mr. Seward were the
opposing candidates, and an anti-slavery meeting, held at Utica,
passed a resolve to have them interrogated (among other things) on
the point of repealing the slave sojournment act. Messrs. Gerritt
Smith, and William Jay, were nominated a committee for that purpose,
and fulfilled their mission so zealously as rather to overstate the
terms of the act, using the word "importation" as applied to the
coming of these slaves with their owners, thus: "Are you in favor of
the repeal of the law which now authorizes the importation of slaves
into this State, and their detention here as such for the time of
nine months?" Objecting to the substitution of the term importation,
and stating the act correctly, both the candidates answered fully in
the negative, and with reasons for their opinion. The act was first
quoted in its own terms, as follows:
"Any person, not being an inhabitant of this State, who shall
be travelling to or from, or passing through this State, may
bring with him any person lawfully held by him in slavery, and
may take such person with him from this State; but the person so
held in slavery shall not reside or continue in this State more
than nine months; and if such residence be continued beyond that
time, such person shall be free."
Replying to the interrogatory, Mr. Marcy then proceeds to give his
opinion and reasons in favor of sustaining the act, which he does
unreservedly:
"By comparing this law with your interrogatory, you will
perceive at once that the latter implies much more than the
former expresses. The discrepancy between them is so great, that
I suspected, at first, that you had reference to some other
enactment which had escaped general notice. As none, however,
can be found but the foregoing, to which the question is in
any respect applicable, there will be no mistake, I presume,
in assuming it to be the one you had in view. The deviation,
in putting the question, from what would seem to be the plain
and obvious course of directing the attention to the particular
law under consideration, by referring to it in the very terms
in which it is expressed, or at least in language showing its
objects and limitations, I do not impute to an intention to
create an erroneous impression as to the law, or to ascribe to
it a character of odiousness which it does not deserve; yet I
think that it must be conceded that your question will induce
those who are not particularly acquainted with the section of
the statute to which it refers, to believe that there is a law
of this State which allows a free importation of slaves into it,
without restrictions as to object, and without limitation as
to the persons who may do so; yet this is very far from being
true. This law does not permit any inhabitant of this State to
bring into it any person held in slavery, under any pretence
or for any object whatsoever; nor does it allow any person of
any other State or country to do so, except such person is
actually travelling to or from, or passing through this State.
This law, in its operation and effect, only allows persons
belonging to States or nations where domestic slavery exists,
who happen to be travelling in this State, to be attended by
their servants whom they lawfully hold in slavery when at home,
provided they do not remain within our territories longer than
nine months. The difference between it and the one implied by
your interrogatory is so manifest, that it is perhaps fair to
presume, that if those by whose appointment you act in this
matter had not misapprehended its character, they would not
have instructed you to make it the subject of one of your
questions. It is so restricted in its object, and that is so
unexceptionable, that it can scarcely be regarded as obnoxious
to well-founded objections when viewed in its true light. Its
repeal would, I apprehend, have an injurious effect upon our
intercourse with some of the other States, and particularly
upon their business connection with our commercial emporium. In
addition to this, the repeal would have a tendency to disturb
the political harmony among the members of our confederacy,
without producing any beneficial results to compensate for these
evils. I am not therefore in favor of it."
This is an explicit answer, meeting the interrogatory with a full
negative, and impliedly rebuking the phrase "importation," by
supposing it would not have been used if the Utica convention had
understood the act. Mr. Seward answered in the same spirit, and
to the same effect, only giving a little more amplitude to his
excellent reasons. He says:
"Does not your inquiry give too broad a meaning to the section?
It certainly does not confer upon any citizen of a State, or of
any other country, or any citizen of any other State, except
the owner of slaves in another State by virtue of the laws
thereof, the right to bring slaves into this State or detain
them here under any circumstances as such. I understand your
inquiry, therefore to mean, whether I am in favor of a repeal
of the law which declares, in substance, that any person from
the southern or south-western States, who may be travelling to
or from or passing thrugh the State, may bring with him and
take with him any person lawfully held by him in slavery in the
State from whence he came, provided such slaves do not remain
here more than nine months. The article of the constitution
of the United States which bears upon the present question,
declares that no person held to service or labor in one State,
under the laws thereof, escaping to another State, shall, in
consequence of any law or regulation therein, be discharged
from such service or labor, but such persons shall be delivered
up on claim of the party to whom such service or labor may be
due. I understand that, in the State of Massachusetts, this
provision of the constitution has been decided by the courts
not to include the case of a slave brought by his master into
the State, and escaping thence. But the courts of law in this
State have uniformly given a different construction to the same
article of the constitution, and have always decided that it
does embrace the case of a slave brought by his master into
this State, and escaping from him here. Consequently, under
this judicial construction of the constitution, and without,
and in defiance of any law or regulation of this State, if the
slave escape from his master in this State, he must be restored
to him, when claimed at any time during his master's temporary
sojournment within the State, whether that sojournment be six
months, nine months, or longer. It is not for me to say that
this decision is erroneous, nor is it for our legislature.
Acting under its authority, they passed the law to which you
object, for the purpose, not of conferring new powers or
privileges on the slave-owner, but to prevent his abuse of that
which the constitution of the United States, thus expounded,
secures to him. The law, as I understand it, was intended to
fix a period of time as a test of transient passage through, or
temporary residence in the State, within the provisions of the
constitution. The duration of nine months is not material in the
question, and if it be unnecessarily long, may and ought to be
abridged. But, if no such law existed, the right of the master
(under the construction of the constitution before mentioned)
would be indefinite, and the slave must be surrendered to him
in all cases of travelling through, or passage to or from the
State. If I have correctly apprehended the subject, this law
is not one conferring a right upon any person to import slaves
into the State, and hold them here as such; but is an attempt
at restriction upon the constitutional right of the master; a
qualification, or at least a definition of it, and is in favor
of the slave. Its repeal, therefore, would have the effect
to put in greater jeopardy the class of persons you propose
to benefit by it. While the construction of the constitution
adopted here is maintained, the law, it would seem, ought to
remain upon our statute book, not as an encroachment upon the
rights of man, but a protection for them.
"But, gentlemen, being desirous to be entirely candid in
this communication, it is proper I should add, that I am not
convinced it would be either wise, expedient or humane, to
declare to our fellow-citizens of the southern and south-western
States, that if they travel to or from, or pass through the
State of New York, they shall not bring with them the attendants
whom custom, or education, or habit, may have rendered necessary
to them. I have not been able to discover any good object to
be attained by such an act of inhospitality. It certainly can
work no injury to us, nor can it be injurious to the unfortunate
beings held in bondage, to permit them, once perhaps in their
lives, and at most, on occasions few and far between, to
visit a country where slavery is unknown. I can even conceive
of benefits to the great cause of human liberty, from the
cultivation of this intercourse with the South. I can imagine
but one ground of objection, which is, that it may be regarded
as an implication that this State sanctions slavery. If this
objection were well grounded, I should at once condemn the law.
But, in truth, the law does not imply any such sanction. The
same statute which, in necessary obedience to the constitution
of the United States as expounded, declares the exception,
condemns, in the most clear and definite terms, all human
bondage. I will not press the considerations flowing from the
nature of our Union, and the mutual concessions on which it
was founded, against the propriety of such an exclusion as
your question contemplates, apparently for the purpose only
of avoiding an implication not founded in fact, and which the
history of our State so nobly contradicts. It is sufficient
to say that such an exclusion could have no good effect
practically, and would accomplish nothing in the great cause of
human liberty."
These answers do not seem to have affected the election in any way.
Mr. Seward was elected, each candidate receiving the full vote of
his party. Since that time the act has been repealed, and no voice
has yet been raised to restore it. Just and meritorious as were
the answers of Messrs. Marcy and Seward in favor of sustaining
the sojourning act, their voice in favor of its restoration would
be still more so now. It was a measure in the very spirit of the
constitution, and in the very nature of a union, and in full harmony
with the spirit of concession, deference and good-will in which
the constitution was founded. Several other States had acts to the
same effect, and the temper of the people in all the free States
was accordant. It was not until after the slavery question became
a subject of _political_ agitation, in the national legislature,
that these acts were repealed, and this spirit destroyed. Political
agitation has done all the mischief.
The act of Pennsylvania, of March 3d, 1847, besides repealing the
slave sojournment act of 1780--(an act made in the time of Dr.
Franklin, and which had been on her statute-book near seventy
years), besides repealing her recent act of 1826, and besides
forbidding the use of her prisons, and the intervention of her
officers in the recovery of fugitive slaves--besides all this, went
on to make positive enactments to prevent the exercise of the rights
of forcible recaption of fugitive slaves, as regulated by the act of
Congress, under the clause in the constitution; and for that purpose
contained this section:
"That if any person or persons claiming any negro or mulatto,
as fugitive from servitude or labor, shall, under any pretence
of authority whatever, violently and tumultuously seize upon
and carry away in a riotous, violent, and tumultuous manner,
and so as to disturb and endanger the public peace, any negro
or mulatto within this commonwealth, either with or without the
intention of taking such negro or mulatto before any district
or circuit judge, the person or persons so offending against
the peace of this commonwealth, shall be deemed guilty of a
misdemeanor; and on conviction thereof, shall be sentenced
to pay a fine of not less than one hundred nor more than two
thousand dollars; and, further, be confined in the county jail
for any period not exceeding three months, at the discretion of
the court."
The granting of the _habeas corpus_ writ to any fugitive slave
completed the enactments of this statute, which thus carried out, to
the full, the ample intimations contained in its title, to wit: "_An
act to prevent kidnapping, preserve the public peace, prohibit the
exercise of certain powers heretofore exercised by judges, justices
of the peace, aldermen, and jailers in this commonwealth; and, to
repeal certain slave laws._" This act made a new starting-point in
the anti-slavery movements North, as the resolutions of Mr. Calhoun,
of the previous month, made a new starting-point in the pro-slavery
movements in the South. The first led to the new fugitive slave
recovery act of 1850--the other has led to the abrogation of the
Missouri Compromise line; and, between the two, the state of things
has been produced which now afflicts and distracts the country, and
is working a sectional divorce of the States.
A citizen of Maryland, acting under the federal law of '93, in
recapturing his slave in Pennsylvania, was prosecuted under the
State act of 1826--convicted--and sentenced to its penalties.
The constitutionality of this enactment was in vain plead in
the Pennsylvania court; but her authorities acted in the spirit
of deference and respect to the authorities of the Union, and
concurred in an "_agreed case_," to be carried before the Supreme
Court of the United States, to test the constitutionality of the
Pennsylvania law. That court decided fully and promptly all the
points in the case, and to the full vindication of all the rights of
a slaveholder, under the recaption clause in the constitution. The
points decided cover the whole ground, and, besides, show precisely
in what particular the act of 1793 required to be amended, to make
it work out its complete effect under the constitution, independent
of all extrinsic aid. The points were these:
"The provisions of the act of 12th of February, 1793, relative
to fugitive slaves, is clearly constitutional in all its leading
provisions, and, indeed, with the exception of that part which
confers authority on State magistrates, is free from reasonable
doubt or difficulty. As to the authority so conferred on State
magistrates, while a difference of opinion exists, and may exist
on this point, in different States, whether State magistrates
are bound to act under it, none is entertained by the court,
that State magistrates may, if they choose, exercise that
authority, unless forbid by State legislation." "The power of
legislation in relation to fugitives from labor is exclusive
in the national legislature." "The right to seize and retake
fugitive slaves, and the duty to deliver them up, in whatever
State of the Union they may be found, is under the constitution
recognized as an absolute, positive right and duty, pervading
the whole Union with an equal and supreme force, uncontrolled
and uncontrollable by State sovereignty or State legislation.
The right and duty are co-extensive and uniform in remedy
and operation throughout the whole Union. The owner has the
same exemption from State regulations and control, through
however many States he may pass with the fugitive slaves in
his possession _in transitu_ to his domicil." "The act of the
legislature of Pennsylvania, on which the indictment against
Edward Prigg was founded, for carrying away a fugitive slave,
is unconstitutional and void. It purports to punish, as a
public offence against the State, the very act of seizing and
removing a slave by his master, which the constitution of
the United States was designed to justify and uphold." "The
constitutionality of the act of Congress (1793), relating to
fugitives from labor, has been affirmed by the adjudications of
the State tribunals, and by those of the courts of the United
States."
This decision of the Supreme Court--so clear and full--was further
valuable in making visible to the legislative authority what was
wanting to give efficacy to the act of 1793; it was nothing but to
substitute federal commissioners for the State officers forbidden
to act under it; and that substitution might have been accomplished
in an amendatory bill of three or four lines--leaving all the rest
of the act as it was. Unfortunately Congress did not limit itself
to an amendment of the act of 1793; it made a new law--long and
complex--and striking the public mind as a novelty. It was early in
the session of 1849-'50 that the Judiciary Committee of the Senate
reported a bill on the subject; it was a bill long and complex, and
distasteful to all sides of the chamber, and lay upon the table
six months untouched. It was taken up in the last weeks of a nine
months' session, and substituted by another bill, still longer and
more complex. This bill also was very distasteful to the Senate
(the majority), and had the singular fate of being supported in
its details, and passed into law, with less than a quorum of the
body in its favor, and without ever receiving the full senatorial
vote of the slave States. The material votes upon it, before it was
passed, were on propositions to give the fugitive a jury trial, if
he desired it, upon the question of his condition--free or slave;
and upon the question of giving him the benefit of the writ of
_habeas corpus_. The first of these propositions originated with
Mr. Webster, but was offered in his absence by Mr. Dayton, of New
Jersey. He (Mr. Webster) drew up a brief bill early in the session,
to supply the defect found in the working of the act of '93; it was
short and simple; but it contained a proviso in favor of a jury
trial when the fugitive denied his servitude. That would have been
about always; and this jury trial, besides being incompatible with
the constitution, and contradictory to all cases of proceeding
against fugitives, would have been pretty sure to have been fatal to
the pursuer's claim; and certainly both expensive and troublesome to
him. It was contrary to the act of 1793, and contrary to the whole
established course of reclaiming fugitives, which is always to carry
them back to the place from which they fled to be tried. Thus,
if a man commits an offence in one country, and flies to another,
he is carried back; so, if he flies from one State to another;
and so in all the extradition treaties between foreign nations.
All are carried back to the place from which they fled, the only
condition being to establish the flight and the probable cause; and
that in the case of fugitives from labor, as well as from justice,
both of which classes are put together in the constitution of the
United States, and in the fugitive act of 1793. The proposition
was rejected by a vote of eleven to twenty-seven. The yeas were:
Messrs. Davis of Massachusetts, Dayton, Dodge of Wisconsin, Greene,
Hamlin, Phelps, Smith, Upham, Walker of Wisconsin, and Winthrop.
The nays were: Messrs. Atchison, Badger, Barnwell, Bell, Benton,
Berrien, Butler, Cass, Davis of Mississippi, Dawson, Dodge of Iowa,
Downs, Houston, Jones of Iowa, King, Mangum, Mason, Morton, Pratt
of Maryland, Rusk, Sebastian, Soulé, Sturgeon, Turney, Underwood,
Wales, Yulee. The motion in favor of granting the benefit of the
writ of habeas corpus to the fugitive was made by Mr. Winthrop, and
rejected by the same vote of eleven yeas and twenty-seven nays.
Other amendments were offered and disposed of, and the question
coming on the passing of the bill, Mr. Cass, in speaking his own
sentiments in favor of merely amending the act of 1793, also spoke
the sentiments of many others, saying:
"When this subject was before the compromise committee, there
was a general wish, and in that I fully concurred, that the
main features of the act of 1793 upon this subject, so far
as they were applicable, should be preserved, and that such
changes as experience has shown to be necessary to a fair and
just enforcement of the provisions of the constitution for the
surrender of fugitive slaves, should be introduced by way of
amendment. That law was approved by Washington, and has now been
in force for sixty years, and lays down, among others, four
general principles, to which I am prepared to adhere: 1. The
right of the master to arrest his fugitive slave wherever he
may find him. 2. His duty to carry him before a magistrate in
the State where he is arrested, and that claim may be adjudged
by him. 3. The duty of the magistrate to examine the claim, and
to decide it, like other examining magistrates, without a jury,
and then to commit him to the custody of the master. 4. The
right of the master then to remove the slave to his residence.
At the time this law was passed, every justice of the peace
throughout the Union was required to execute the duties under
it. Since then, as we all know, the Supreme Court has decided
that justices of the peace cannot be called upon to execute
this law, and the consequence is, that they have almost every
where refused to do so. The master seeking his slave found his
remedy a good one at the time, but now very ineffectual; and
this defect is one that imperiously requires a remedy. And this
remedy I am willing to provide, fairly and honestly, and to make
such other provisions as may be proper and necessary. But I
desire for myself that the original act should remain upon the
statute book, and that the changes shown to be necessary should
be made by way of amendment."
The vote on the passing of the bill was 27 to 12, the yeas being:
Messrs. Atchison, Badger, Barnwell, Bell, Berrien, Butler, Davis
of Miss., Dawson, Dodge of Iowa, Downs, Foote, Houston, Hunter,
Jones of Iowa, King, Mangum, Mason, Pearce, Rusk, Sebastian, Soulé,
Spruance, Sturgeon, Turney, Underwood, Wales, and Yulee. The nays
were: Messrs. Baldwin, Bradbury, Cooper, Davis of Mass., Dayton,
Dodge of Wisconsin, Greene of Rhode Island, Smith, Upham, Walker,
and Winthrop. Above twenty senators did not vote at all upon the
bill, of whom Mr. Benton was one. Nearly the whole of these twenty
would have voted for an amendment to the act of 1793, supplying
federal officers in place of the State officers who were to assist
in its execution. Some three or four lines would have done that;
but instead of this brief enactment to give effect to an ancient
and well-known law, there was a long bill of ten sections, giving
the aspect of a new law; and with such multiplied and complex
provisions as to render the act inexecutable, except at a cost and
trouble which would render the recovery of little or no value;
and to be attended with an array and machinery which would excite
disturbance, and scenes of force and violence, and render the law
odious. It passed the House, and became a law, and has verified all
the objections taken to it.
Mr. Benton did not speak upon this bill at the time of its passage;
he had done that before, in a previous stage of the question, and
when Mr. Clay proposed to make it a part of his compromise measures.
He (Mr. Benton) was opposed to confounding an old subject of
constitutional obligation with new and questionable subjects, and
was ready to give the subject an independent consideration, and to
vote for any bill that should be efficient and satisfactory. He said:
"We have a bill now--an independent one--for the recovery of
these slaves. It is one of the oldest on the calendar, and
warmly pressed at the commencement of the session. It must be
about ripe for decision by this time. I am ready to vote upon
it, and to vote any thing under the constitution which will be
efficient and satisfactory. It is the only point, in my opinion,
at which any of the non-slaveholding States, as States, have
given just cause of complaint to the slaveholding States. I
leave out individuals and societies, and speak of States in
their corporate capacity; and say, this affair of the runaway
slaves is the only case in which any of the non-slaveholding
States, in my opinion, have given just cause of complaint to
the slaveholding States. But, how is it here? Any refusal on
the part of the northern members to legislate the remedy? We
have heard many of them declare their opinions; and I see no
line of east and west dividing the north from the south in these
opinions. I see no geographical boundary dividing northern and
southern opinions. I see no diversity of opinion but such as
occurs in ordinary measures before Congress. For one, I am ready
to vote at once for the passage of a fugitive slavery recovery
bill; but it must be as a separate and independent measure."
Mr. Benton voted upon the amendments, and to make the bill efficient
and satisfactory; but failed to make it either, and would neither
vote for it nor against it. It has been worth but little to the
slave States in recovering their property, and has been annoying to
the free States from the manner of its execution, and is considered
a new act, though founded upon that of '93, which is lost and hid
under it. The wonder is how such an act came to pass, even by so
lean a vote as it received--for it was voted for by less than the
number of senators from the slave States alone. It is a wonder how
it passed at all, and the wonder increases on knowing that, of the
small number that voted for it, many were against it, and merely
went along with those who had constituted themselves the particular
guardians of the rights of the slave States, and claimed a lead in
all that concerned them.
Those self-constituted guardians were permitted to have their own
way; some voting with them unwillingly, others not voting at all.
It was a part of the plan of "compromise and pacification," which
was then deemed essential to save the Union: and under the fear of
danger to the Union on one hand, and the charms of pacification
and compromise on the other, a few heated spirits got the control,
and had things their own way. Under other circumstances--in any
season of quiet and tranquillity--the vote of Congress would have
been almost general against the complex, cumbersome, expensive,
annoying, and ineffective bill that was passed, and in favor of the
act (with the necessary amendment) which Washington recommended and
signed--which State and Federal judiciaries had sanctioned--which
the people had lived under for nearly sixty years, and against
which there was no complaint until slavery agitation had become a
political game to be played at by parties from both sides of the
Union. All public men disavow that game. All profess patriotism.
All applaud the patriotic spirit of our ancestors. Then imitate
that spirit. Do as these patriotic fathers did--the free States
by reviving the sojournment laws which gave safety to the slave
property of their fellow-citizens of other States passing through
them--the slave States by acting in the spirit of those who enacted
the anti-slavery ordinance of 1787, and the Missouri Compromise line
of 1820. New York and Pennsylvania are the States to begin, and to
revive the sojournment laws which were in force within them for
half a century. The man who would stand up in each of these States
and propose the revival of these acts, for the same reasons that
Messrs. Marcy and Seward opposed their repeal, would give a proof of
patriotism which would entitle him to be classed with our patriotic
ancestors.