The Underground Railroad from Slavery to Freedom: A comprehensive history

by Wilbur Henry Siebert

The opinions given by the courts in the cases under consideration failed to support the idea of the irreconcilability existing between the law of 1793 and the Ordinance. The Supreme Court of Ohio declared that under the federal Constitution the right of recaption of fugitive slaves was secured to the new states to the same extent that it belonged to the original states.[775] The Circuit Court of the United States took virtually the same stand by pointing out that a state carved from the Northwest Territory assumed the same constitutional obligations by entering the Union that the original thirteen states had earlier assumed, and that where a conflict occurred the Constitution was paramount to the Ordinance.[776] Finally, the Supreme Court at Washington declared that the clause in the Ordinance prohibiting slavery applied only to people living within the borders of the Northwest Territory, and that it did not impair the rights of those living in states outside of this domain. Wheresoever the Ordinance existed the states preserved their own laws, as well as the Ordinance, by forbidding slavery; the provision of the Constitution and the act of Congress looking toward the delivery of fugitive slaves did not interfere with the laws of the free states as to their own subjects. The court therefore held that there was no repugnance between the act and the Ordinance.[777]

Among the various objections raised in the court-room against the law of 1793, the denial of the power of Congress to legislate on the subject of fugitive slaves was one that should not be overlooked. It commanded the attention of the bench in at least two important cases, both of which have been mentioned in other connections, namely, Peter, alias Lewis Martin (1837), and State vs. Hoppess (1845). In both of these cases the denial of legislative authority was based upon the doctrine that there had been no delegation of the necessary power to Congress by the Constitution. The fugitive slave clause in the Constitution, it was said in the report of the second case, prepared by Mr. Chase, granted no power at all to Congress, but was "a mere clause of compact imposing a duty on the states to be fulfilled, if at all, by state legislation."[778] However prevalent this view may have been in the Northern states,—and the number of state laws dealing with the subject of fugitive slaves indicates that it predominated,—neither the Circuit Court of the United States for the Southern District of New York in the earlier case, nor the Supreme Court of Ohio in the later, were willing to subscribe to the doctrine. On the contrary, both asserted the power of Congress to pass laws for the restoration of runaway slaves, on the ground that the creation of a duty or a right by the Constitution is the warrant under which Congress necessarily acts in making the laws needful to enforce the duty or secure the right.[779]

The outcome of the judicial examination in the high courts of the various points thus far considered was wholly favorable to the constitutionality of the law of 1793. The one case within the category of great cases in which that law was decided to be unconstitutional in any particular was that of Prigg vs. Pennsylvania. By the law of 1793 state and local authorities were empowered to take cognizance of fugitive slave cases together with judges holding their appointments from the federal government.[780] In the hearing given the case before the Supreme Court at Washington, in 1842, Mr. Johnson, the attorney-general of Pennsylvania, cited former decisions of the Supreme Court to show that in so far as the congressional law vested jurisdiction in state officers it was unconstitutional and void.[781] The court's answer was momentous and far-reaching. While the law was declared to be constitutional in its essential features, it was asserted that it did not point out any state functionaries, or any state actions, to carry its provisions into effect. The states could not, therefore, so the court decided, be compelled to enforce them; and any insistence that the states were bound to provide means for the performance of the duties of the national government, nowhere delegated or entrusted to them by the Constitution, would bear the appearance of an unconstitutional exercise of the interpretative power.[782] As the decision in the Prigg case carried the weight of great authority, and became a precedent for all future judgments,[783] the relief it afforded state officers from distasteful functions was soon accepted by many states, and they enacted laws forbidding their magistrates to issue warrants for the arrest or removal of fugitive slaves.[784] In consequence of this manifest disinclination on the part of the Northern states to restore to Southern masters their escaped slaves, the federal government was induced to make more effective provision for the execution of the Constitution in this particular. Such provision was embodied in the second Fugitive Slave Law, passed as a part of the Compromise of 1850.

That the new law was not intended to extinguish the old is apparent from the title assigned it, which read: "An Act to amend, and supplementary to, the Act entitled 'An Act respecting Fugitives from Justice, and Persons escaping from the service of their Masters, ..."[785] Its evident purpose was to increase the facilities and improve the means for the recovery of fugitives from labor. To this end it created commissioners, who were to have authority, like the judges of the circuit and district courts of the United States, to issue warrants for the apprehension of runaway slaves, and to grant certificates for the removal of such persons back to the state or territory whence they had escaped. All cases were to be heard in a summary manner; the testimony of the alleged fugitive could not be received in evidence; and the fee of the commissioner or judge was to be ten dollars when the decision was in favor of the claimant, but only five dollars when it was unfavorable. The penalties created by the new law were more rigorous than those imposed by the old. A fine not to exceed a thousand dollars and imprisonment not to exceed six months constituted the punishment for harboring a runaway or aiding in his rescue, and the party injured could bring suit for civil damages against the offender in the sum of one thousand dollars for each fugitive lost through his interference. If the claimant apprehended a rescue, the officer making the arrest could be required to retain the fugitive in his custody for the purpose of removing him to the state whence he had fled. The refusal of the officer to obey and execute the warrants and precepts issued under the provisions of the law laid him liable to a fine of a thousand dollars for the benefit of the claimant; and the escape of a fugitive from his custody, whether with his assent or without it, made him liable to a prosecution for the full value of the labor of the negro thus lost. Ample security from such disaster was intended to be provided for the marshal and his deputies by the clause authorizing them to summon to their aid the bystanders, or posse comitatus, when necessary, and all good citizens were commanded to respond promptly with their assistance. In removing a fugitive back to the state from which he had escaped, when an attempt at rescue was feared, the marshal in charge was commanded to employ as many persons as he deemed necessary to resist the interference. The omission of the new law to mention any officers appointed by the states is doubtless traceable, as is the clause establishing commissionerships, to the ruling in the decision of Prigg's case that state officers could not be forced to execute federal legislation.

It will be remembered that the decision in the Prigg case also contained a ruling that acknowledged the right of the claimant to seize and remove the alleged fugitive, wheresoever found, without judicial process. It has been suggested recently that this part of the decision, denominated the most obnoxious part, was avoided in the law of 1850.[786] But the language of the new law no more denied this right than the language of the old bestowed it. In both cases equally the claimant seems to have enjoyed the right of private seizure and arrest without process, but for the purpose of taking the supposed fugitive before the proper official.[787] So far as the language of the statute was concerned the Prigg decision was quite as possible under the later as under the earlier law. It was the language of the Constitution upon which this part of the famous decision was made to rest, and that, it needs scarcely be said, continued unchanged during the period with which we are concerned.

It is not to be supposed, of course, that the law of 1850 was found to be intrinsically less objectionable to abolitionists than the measure it was intended to supplement. On the contrary, it soon proved to be decidedly more objectionable. The features of the first Slave Act that were obnoxious to the Northern people, and had been subjected to examination in the courts, were retained in the second act, where they were associated with a number of new features of such a character that they soon brought the new law into the greatest contempt. While, therefore, the records of the trials of the chief cases arising under the later law are found to contain arguments borrowed from the contentions made in the cases already discussed, it is interesting to note that they afford proof that new arguments were also brought to bear against the act of 1850. As with the first Fugitive Slave Law, so also with its successor, fault was found on account of the absence of any provision for jury trial;[788] the authority of a claimant or his agent to arrest without legal process;[789] the opposition alleged to exist between the law and the Ordinance of 1787;[790] and the power said to be improperly exercised by Congress in legislating upon the subject of fugitive slaves.[791] It is unnecessary to introduce here a study of these points as they presented themselves in the various cases arising, for a discussion of them would lead to no principles of importance other than those discovered in the cases already examined.[792]

In some of the cases that were tried under the act of 1850, however, new questions appeared; and in some, where the questions were perhaps without novelty, the circumstances were such that the cases cannot well be passed over in silence.

If, as was freely declared by the abolitionists, it was possible for free negroes to be abducted from the Northern states under the form of procedure laid down by the act of 1793, there can be little reason to doubt that the same thing was equally possible under the procedure established by the act of 1850. Certain it is that the anti-slavery people were not dubious on this point, but they had scarcely had time to formulate their criticisms of the new law when the first case under it of which there is any record demonstrated the ease with which this legislation could be taken advantage of in the commission of a foul injustice. The case occurred September 26, only eight days after the passage of the act. A free negro, James Hamlet, then living in New York, was arrested as the slave of Mary Brown, of Baltimore. The hearing took place before a United States commissioner and the negro's removal followed at once. The community in which Hamlet was living was greatly incensed when the facts concerning his disappearance became known, and the sum of money necessary for his redemption was quickly contributed. Before a fortnight had elapsed he was brought back from slavery.[793]

The summary manner in which this case was disposed of had prevented a defence being made in behalf of the supposed fugitive. In the next case, however, that of Thomas Sims, which was tried before the Supreme Judicial Court of Massachusetts in 1851, the negro was represented by competent counsel, who brought forward objections against the second Fugitive Slave Law. Almost the first of these was directed against the power of the special officers, the commissioners, created by the new law. It was insisted that the authority with which these officers were invested was distinctly judicial in character, despite the constitutional provision limiting the exercise of the judicial power of the United States to organized courts of justice, composed of judges, holding their offices during good behavior, and receiving fixed salaries for their services.[794] The same argument seems to have been adduced in Scott's case, tried before the District Court of the United States in Massachusetts in 1851; in the case of Miller vs. McQuerry, tried before the Circuit Court of the United States in Ohio in 1853;[795] in Booth's case, argued in the Supreme Court of Wisconsin in 1854;[796] in the case known as ex parte Robinson, adjudicated by the Circuit Court of the United States for the Southern District of Ohio at its April term, 1855;[797] and in the case ex parte Simeon Bushnell, argued and determined in the Supreme Court of Ohio in 1859.[798] The court met this argument by a direct answer in four of the cases mentioned, namely, those of Sims, Scott, Booth and ex parte Robinson. In the first, Sims' case, Chief Justice Shaw pointed out that under the Slave Law of 1793 the jurisdiction over fugitive slave cases had been conferred on justices of the peace and magistrates of cities and towns corporate, as well as on judges of the United States circuit and district courts, and that evidently, therefore, the power bestowed had not been deemed judicial in the sense in which it was urged that the functions of the commissioners were judicial. At the same time the judge admitted that the "argument from the limitation of judicial power would be entitled to very grave consideration" if it were without the support of early construction, judicial precedent and the acquiescence of the general and state governments. In the trial of James Scott, on the charge of aiding in the rescue of Shadrach (May or June, 1851), Judge Sprague, of the United States District Court, held that the legal force of the certificate issued by a commissioner lay merely in the authority it conveyed to remove the person designated from one state to another, and that the disposition made of the person removed depended solely upon the laws of the state to which he was taken. The facts set down in the certificate were not, therefore, to be considered as matters judicially established, but as facts only in the opinion of the commissioner. In Booth's case, the opinion of the Supreme Court of Wisconsin contained a reference to the legality of the power of the commissioners and sustained the objection to their authority on the ground of unconstitutionality.[799] In ex parte Robinson, Judge McLean admitted that the inquiry made by the commissioner was "somewhat in the nature of judicial power," but that the same remark applied to all the officers of the accounting departments of the government, as, for example, the examiners in the Patent Office. He also remarked that the Supreme Court had always treated the acts of the commissioners, in the cases that had come before it, as possessed of authority under the law.[800]