The Underground Railroad from Slavery to Freedom: A comprehensive history

by Wilbur Henry Siebert

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.

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]

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]

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]

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]

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]