The Underground Railroad from Slavery to Freedom: A comprehensive history

by Wilbur Henry Siebert

The uncertainty as to the precise character of the commissioners' power displayed in the different views of the courts before which the question was brought marks the observations of the commissioners themselves in regard to their authority. Examples will be found in Sims' and Burns' cases. In the former, Mr. George T. Curtis declared that claims for fugitive slaves came within the judicial power of the federal government, and that, consequently, the mode and means of the application of this power to the cases arising were properly to be determined by Congress. In the latter, Mr. Edward G. Loring asserted that his action was not judicial at all, but only ministerial.

An additional ground of objection to the commissioners was found in the provision made in the law of 1850 for their remuneration. When one of these officers issued a certificate authorizing the removal of a runaway to the state whence he had escaped, he was legally entitled to a fee of ten dollars; when, however, he withheld the warrant he could receive but five dollars. Abolitionists took much offence at this arrangement, and sometimes scornfully denominated the special appointees under the law the "ten-dollar commissioners," and insisted that the difference between the fees was in the nature of a bribe held out to the officers to induce them to decide in favor of the claimant. Considering the prevalence of this feeling outside of the courts, it is not surprising that objections to the section of the act regulating the fees of commissioners should have been taken within the court-room.[801] Such objection was raised in McQuerry's case, and was answered by Judge McLean. This answer is probably the only one judicially declared, and is worth quoting: "In regard to the five dollars, in addition, paid to the commissioner, where the fugitive is remanded to the claimant," the judge explained, "in all fairness it cannot be considered as a bribe, or as so intended by Congress; but as a compensation to the commissioner for making a statement of the case, which includes the facts proved, and to which the certificate is annexed. In cases where the witnesses are numerous and the investigation takes up several days, five dollars would scarcely be a compensation for the statement required. Where the fugitive is discharged, no statement is necessary."[802]

The fees paid to commissioners were, as indicated in the remarks just quoted, by way of remuneration for services rendered in inquiries relative to the rights of ownership of negroes alleged to have escaped from the South. These inquiries, together with similar inquiries that arose under the act of 1793, constitute a group by themselves. Another group is made up of the cases growing out of the prosecution under the two acts of persons charged with harboring fugitive slaves, or aiding in their rescue. The secrecy observed by abolitionists in giving assistance to escaping bondmen shows that the evils threatening, if a discovery occurred, were constantly kept in mind. After the passage of the second act, public denunciation of the measure was indulged in freely, and open resistance to its provisions, whether these should be considered constitutional or not, was recommended in some quarters. Such remonstrances seem to have early disturbed the judicial repose of the courts, for, six months after the new Fugitive Slave Bill had become a law, Justice Nelson found occasion in the course of a charge to the grand jury of the Circuit Court of the United States for the Southern District of New York to deliver a speech on sectional issues in which he gave an exposition of the new law, "so that those, if any there be, who have made up their minds to disobey it, may be fully apprised of the consequences."[803] The severer penalties of the law of 1850 had no deterrent effect upon those who were determined to resist its enforcement. The fervor displayed in harboring runaways increased rather than diminished throughout the free states, and the spirit of resistance thus fostered broke out in daring and sometimes successful attempts at rescue. Through the activity of slave-owners in seeking the recovery of their lost property, and the support afforded them by the government in the strict enforcement of the new law, a number of offenders were brought to trial and subjected to punishments inflicted under its provisions.

Among the prosecutions arising under the two congressional acts the following cases are offered as typical. The number has been limited by choosing in general from among such as came before supreme courts of the states, or before circuit and district courts of the United States.

One of the earliest cases of which we have record was brought before the Circuit Court of the United States for the Eastern District of Pennsylvania on writ of error, in 1822. The action was for the penalty under the law of 1793 for obstructing the plaintiff, a citizen of Maryland, in seizing his escaped slave in Philadelphia for the purpose of taking him before a magistrate there to prove property. The trial in the United States District Court had terminated in a verdict of $500 for the slave-owner. Judge Washington, of the Circuit Court, decided, however, that there was an error in the judgment of the lower court, that the judgment must be reversed with costs, and the cause remitted to the District Court in order that a new trial might be had. This case is known in the law books as the case of Hill vs. Low.[804]

Occasionally an attempt at rescue ended in the arrest and imprisonment of the slave-catchers, as well as the release of the captured negro. When a party of rescuers went to such a length as here indicated it laid itself liable to an action for damages on the ground of false imprisonment, as well as to prosecution for the penalty under the Fugitive Slave Law. This is illustrated in the case of Johnson vs. Tomkins, a case belonging to the year 1833.[805] It was the outgrowth of the attempt of a master to reclaim his slave from the premises of a Quaker, John Kenderdine, of Montgomery County, Pennsylvania. Before the slave-owner could return to New Jersey, the state of his domicile, he and his party were overtaken, and after violent handling in which the master was injured, they were taken into custody, and were forthwith prosecuted. The trial ended in the acquittal of the company from New Jersey, whose seizure of the negro was found to be justifiable. Then followed the prosecution of some of the Pennsylvania party for trespass and false imprisonment, before the Circuit Court of the United States. The fact that the defendants were all Quakers was noted by the judge, who found it "hard to imagine" the motives by which these persons, "members of a society distinguished for their obedience and submission to the laws" were actuated. The question of damages was left exclusively to the jury. The verdict rendered was for $4,000, and the court gave judgment on the verdict.[806]

The law of 1793 provided a double penalty for those guilty of transgressing its provisions: first, the forfeiture of a sum of $500 to be recovered for the benefit of the claimant by action of debt; secondly, the payment of such damages as might be awarded by the court in an action brought by the slave-owner on account of the injuries sustained through the loss, or even the temporary absence, of his property. In the famous case of Jones vs. Van Zandt, which was pending before the United States courts, in Ohio and at Washington, for five years, from 1842 to 1847, the defendant was compelled to pay both penalties. In April, 1842, Mr. Van Zandt, an anti-slavery Kentuckian, who had settled at Springdale, a few miles north of Cincinnati, Ohio, was caught in the act of conveying a company of nine fugitives in his market-wagon at daybreak one morning, and, notwithstanding the efforts of the slave-catchers, one of the negroes escaped. The trial was held before the United States Circuit Court at its July term, 1843. The jury gave a verdict for the claimant of $1,200 in damages on two counts.[807] Besides the suit for damages, an action was brought against Van Zandt for the penalty of $500. In this action, as in the other, the verdict was for Jones, the plaintiff. The matter did not end here, however, and was carried on a certificate of division in opinion between the judges to the Supreme Court of the United States. The decision of this court was also adverse to Van Zandt, and final judgment was entered against him for both amounts. This settlement was reached at the January term in 1847.[808]

The successful rescue of a large company of slaves was likely to make the adventure a very expensive one for the responsible persons that took part in it. Such was the experience of the defendants in the case of Giltner vs. Gorham and others, determined in 1847. Six slaves, the chattels of Mr. Giltner, a citizen of Carroll County, Kentucky, were discovered and arrested in Marshall, Michigan, by the agents of the claimant, but through the intervention of the defendants were set at liberty. Action was brought to recover the value of the negroes, who were estimated to be worth $2,752. In the first trial the jury failed to agree. At the succeeding term of court, however, a verdict for the value of the slaves was found for the plaintiff.[809]

The value of four negroes was involved in the case of Norris vs. Newton and others. These negroes were found in September, 1849, after two years' absence from Kentucky, living in Cass County, Michigan. Here they had taken refuge among abolitionists and people of their own color. They were at once seized by their pursuers and conveyed across the line into Indiana, but had not been taken far when their progress was stopped by an excited crowd with a sheriff at its head. The officer had a writ of habeas corpus, and the temper of the crowd would admit of no delay in securing a hearing for the fugitives. The court-house at South Bend, whither the captives were now taken, was at once crowded with spectators, and the streets around it filled with the overflow. The negroes were released by the decision of the judge, but were rearrested and placed in jail for safe-keeping. On the following day warrants were sworn out against several members of the Kentucky party, charging them with riot and other breaches of the peace, and civil process was begun against Mr. Norris, the owner of the slaves, claiming large damages in their behalf. Meanwhile companies of colored people, some of whom had firearms and others clubs, came tramping into the village from Cass County and the intermediate country. Fortunately a demonstration by these incensed bands was somehow avoided. Two days later the fugitives were released from custody on a second writ of habeas corpus, and, attended by a great bodyguard of colored persons, were triumphantly carried away in a wagon. The slave-owner, the charges against whom were dropped, had declined to attend the last hearing accorded his slaves, declaring that his rights had been violated, and that he would claim compensation under the law. Suit was accordingly brought in the Circuit Court of the United States in 1850, and the sum of $2,850 was awarded as damages to the plaintiff.[810]

Another case in which large damages were at stake was that of Oliver vs. Weakley and others, tried in the United States Circuit Court for the Western District of Pennsylvania, in October term, 1853. It was alleged and proved that Mr. Weakley, one of the defendants, had given shelter in his barn to several slaves of the plaintiff, who was a citizen of Maryland. The jury failed to agree on the first trial. A second trial was therefore held, and this time a verdict was reached; one of the defendants was found guilty, and damages to the amount of $2,800 were assessed upon him; the other defendants were declared "not guilty."[811]