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.
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.