Analysis.
§ 78. Acts passed before the Prigg decision (1793-1842).—Although the so-called personal liberty laws were not passed until about 1840, Indiana[256] and Connecticut[257] had before that time provided that on appeal fugitives might have a trial by jury. The Connecticut law, in contrast to the hostile spirit of later legislation, was entitled, "An Act for the fulfilment of the obligation of this State imposed by the Constitution of the United States in regard to persons held to service or labor in one State escaping into another, and to secure the right of trial by jury in the cases herein mentioned." Notwithstanding this preamble, the law provided for fining State officials who might take part in fugitive slave cases.
The first definite personal liberty laws were passed by Vermont[258] and New York,[259] in 1840, and were entitled Acts "to extend the right of trial by jury." They not only insured jury trial, but also provided attorneys to defend fugitives. This was the only law of the kind New York ever passed, and proved of little value, since it soon fell into disuse, and was almost forgotten.
§ 79. Acts passed between the Prigg decision and the second Fugitive Slave Law (1842-1850).—After the Prigg decision in 1842, wherein it was declared that the law must be executed through national powers only, and that State authorities could not be forced into action,[260] a new class of statutes sprang up. The State legislatures seized the opportunity afforded them by Judge Story's opinion, to forbid State officers from performing the duties required of them by the law of 1793, and prohibited the use of State jails in fugitive slave cases. Such laws were passed in Massachusetts,[261] Vermont,[262] Pennsylvania,[263] and Rhode Island.[264] In 1844, Connecticut repealed her act of 1838, as being then unconstitutional, but retained the portion forbidding State officers to participate in the execution of the law.
§ 80. Acts occasioned by the law of 1850 (1850-1860).—The provisions of the law of 1850 roused yet more opposition in the North, and before 1856 many of the States had passed personal liberty bills. The new national law avoided the employment of State officers. This change in the statute brought about a corresponding alteration in the State legislation, and we therefore find the acts of this period differing somewhat from those of earlier years. They almost invariably prohibited the use of State jails, they often forbade State judges and officers to issue writs or to give assistance to the claimant, and punished severely the seizure of a free person with the intent to reduce him to slavery.
Should an alleged fugitive be arrested, the personal liberty acts were intended to secure him a trial surrounded by the usual legal safeguards. The identity of the person claimed was to be proved by two witnesses; or they gave him the right to a writ of habeas corpus; or they enjoined upon the court to which the writ was returnable a trial by jury. At the trial the prisoner must be defended by an attorney, frequently the State or county attorney, and a penalty was provided for false testimony. Any violation of these clauses by State officers was punished by penalties varying from five hundred dollars and six months in jail, as in Pennsylvania, to the maximum punishment in Vermont, of two thousand dollars' fine and ten years in prison.
Such acts were passed in Vermont,[265] Connecticut,[266] and Rhode Island,[267] in Massachusetts,[268] Michigan,[269] and Maine.[270] Later, laws were also enacted in Wisconsin,[271] Kansas,[272] Ohio,[273] and Pennsylvania.[274] Of the other Northern States, two only, New Jersey and California, gave any official sanction to the rendition of fugitives. In New Hampshire, New York, Indiana, Illinois, Iowa, and Minnesota, however, no full personal liberty laws were passed.[275]
§ 81. Massachusetts acts.—Let us now examine the purport of these acts in the various States. The general tenor and effect are best seen in Massachusetts, which may be selected as a typical State. In 1837, Massachusetts passed a law "to restore the trial by jury, on questions of personal freedom." This secured to the prisoner a writ of personal replevin, which was to be issued from and returnable to the Court of Common Pleas for the county in which the plaintiff was confined, and was to be issued fourteen days at least before the return day. If the prisoner were secreted, the court might send out a capias to take the body of the defendant. This act allowed an appeal to the Supreme Judicial Court.
In 1842, the Latimer case[276] occurred. This so aroused public sentiment that a great petition, signed by sixty-five thousand people, was sent to the legislature, asking for a new personal liberty law. On the basis of the Prigg decision, a law was enacted which forbade State magistrates to issue certificates or take cognizance of the law of 1793, and withheld the use of State jails for the imprisonment of fugitives.[277]
In 1851, in the Shadrach case,[278] there was opportunity for testing the value of this law. The fugitive was not indeed confined in any jail, but there was little difficulty in providing a place of detention, and the court-house was secured. In this year, acting upon a clause in the Governor's message, which treated of the new Fugitive Slave Law of 1850, a committee in the legislature made a report, accompanied by resolutions and a bill further to protect personal liberty; but no law was passed, and there the matter rested until 1855.[279]
After the Sims[280] and Burns[281] cases, in which the court-houses were again used in the place of jails, the heat of public indignation led to petitions to the legislature asking for a more stringent personal liberty law. A joint committee prepared a bill, which was passed, but was vetoed by Governor Gardner, who had been advised by the Attorney General that some of the clauses were unconstitutional. But so strong was the influence in its favor that it was passed over the veto by a two-thirds vote.[282] The feeling that it was probably unconstitutional, however, must have strengthened in the next three years: for in 1858[283] we find another act which amended the act of 1855. This limited some provisions, and repealed the following sections: the tenth, which required that any person who should give a certificate that a person claimed as a fugitive was a slave should forfeit any State office he might hold; the eleventh, which forbade any person acting as attorney for a claimant to appear as counsel or attorney in the State courts; the twelfth, which made a violation of the preceding section sufficient ground for the impeachment of any officer of the Commonwealth; the thirteenth, which forbade any United States officer empowered to give certificate or issue warrants from holding a State office; and the fourteenth, which made liable to removal any person holding a State judicial office who should also hold the office of Commissioner.