PUBLICATIONS OF THE SOCIETY FOR THE COLLEGIATE INSTRUCTION
OF WOMEN
Fay House Monographs
No. 3
FUGITIVE SLAVES (1619-1865) BY MARION GLEASON McDOUGALL
PREPARED UNDER THE DIRECTION OF
ALBERT BUSHNELL HART, Ph.D.
ASSISTANT PROFESSOR OF HISTORY IN HARVARD UNIVERSITY
BOSTON, U.S.A.
PUBLISHED BY GINN & COMPANY
1891
Copyright, 1891,
By the Society for the Collegiate Instruction of Women.
University Press:
John Wilson and Son, Cambridge.
EDITOR'S PREFACE.
Every careful student of history is aware that it is no longer possible to write the general history of any important country from the original sources; on any period, the materials which accumulate in a year are more than can be assimilated by one mind in three years. The general historian must use the results of others' work. It is therefore essential that the great phases of political and constitutional development be treated in monographs, each devoted to a single, limited subject and each prepared on a careful and scientific method.
This first number of the historical series of the Fay House Monographs aims to discuss the single topic of Fugitive Slaves. Mrs. McDougall has drawn together and compared many cases found in obscure sources, and has perhaps been able to correct some commonly received impressions on this neglected subject.
Even in its limited range this does not pretend to be a complete work in the sense that all the available cases are discussed or recorded. The effort has been made to use the cases as illustrations of principles, and to add such bibliography as may direct the reader to further details. The appendix of laws is as full as it was possible to make it from the collections in the Boston Public and Massachusetts State Libraries. If the monograph prove useful to the student of American history, it will meet the expectations of author and editor.
ALBERT BUSHNELL HART.
Cambridge, April 2, 1891.
AUTHOR'S PREFACE.
The following monograph was written while the author was a student in the "Harvard Annex" as a study in the Seminary course given by Professor Albert Bushnell Hart. The work has continued during parts of the four years since 1887. The effort has been to trace in some measure the development of public sentiment upon the subject, to prepare an outline of Colonial legislation and of the work of Congress during the entire period, and to give accounts of typical cases illustrative of conditions and opinions. Only a few of the more important cases are described minutely, but a critical list of the authorities may be found in the bibliographical appendix.
The thanks of the author are due first to Professor Hart, under whose direction and with whose assistance and encouragement the monograph has been prepared; then to Miss Anna B. Thompson, without whose careful training in the Thayer Academy and continued sympathy, the work could not have been undertaken. Many thanks are due also to the authorities of the Library of Harvard College for the use, in the alcoves, of their large and conveniently arranged collection of books and pamphlets on United States History, and to the assistants in the Boston Public and Massachusetts State Libraries for courteous aid. Colonel T. W. Higginson has kindly examined the chapter on the cases from 1850 to 1860, suggesting some interesting details; and Mr. Arthur Gilman has read the whole in proof, and made many valuable suggestions.
MARION GLEASON McDOUGALL.
Rockland, Mass., April 2, 1891.
CONTENTS.
CHAPTER I.
[LEGISLATION AND CASES BEFORE THE CONSTITUTION.]
§ 1. [Elements of colonial slavery]
§ 2. [Regulations as to fugitives (1640-1700)]
§ 3. [Treatment of fugitives]
§ 4. [Regulations in New England colonies]
§ 5. [Escapes in New England: Attucks case]
§ 6. [Dutch regulations in New Netherlands]
§ 7. [Escapes from New Amsterdam]
§ 8. [Intercolonial regulations]
§ 9. [Intercolonial cases ]
§ 10. [International relations]
§ 11. [International cases]
§ 12. [Relations with the mother country ]
§ 13. [Regulation under the Articles of Confederation (1781-1788) ]
§ 14. [Ordinance for the Northwest Territory (1787) ]
§ 15. [The Fugitive question in the Constitutional Conventions ]
CHAPTER II.
[LEGISLATION FROM 1789 TO 1850.]
§ 16. [Effect of the fugitive slave clause in the Constitution]
§ 17. [The first Fugitive Slave Act (1793)]
§ 18. [Discussion of the first act]
§ 19. [Propositions of 1797 and 1802]
§ 20. [Propositions from 1817 to 1822]
§ 21. [Period of the Missouri Compromise (1819-1822)]
§ 22. [Status of the question from 1823 to 1847]
§ 23. [Canada and Mexico places of refuge]
§ 24. [Status of fugitives on the high seas]
§ 25. [Kidnapping from 1793 to 1850: Prigg case]
§ 26. [Necessity of more stringent fugitive slave provisions]
§ 27. [Action of Congress from 1847 to 1850]
§ 28. [Slavery in the District of Columbia]
§ 29. [The second Fugitive Slave Act (1850)]
§ 30. [Provisions of the second Fugitive Slave Act]
§ 31. [Arguments for the bill]
§ 32. [Arguments against the bill]
CHAPTER III.
[PRINCIPAL CASES FROM 1789 TO 1860.]
§ 33. [Change in character of cases]
§ 34. [The first case of rescue (1793)]
§ 35. [President Washington's demand for a fugitive (1796)]
§ 36. [Kidnapping cases]
§ 37. [Jones case (1836)]
§ 38. [Solomon Northup case (about 1830)]
§ 39. [Washington case (between 1840 and 1850)]
§ 40. [Oberlin case (1841)]
§ 41. [Interference and rescues]
§ 42. [Chickasaw rescue (1836)]
§ 43. [Philadelphia case (1838)]
§ 44. [Latimer case (1842)]
§ 45. [Ottoman case (1846)]
§ 46. [Interstate relations]
§ 47. [Boston and Isaac cases (1837, 1839)]
§ 48. [Ohio and Kentucky case (1848)]
§ 49. [Prosecutions]
§ 50. [Van Zandt, Pearl, and Walker cases (1840, 1844)]
§ 51. [Unpopularity of the Fugitive Slave Act of 1850]
§ 52. [Principle of the selection of cases]
§ 53. [Hamlet case (1850)]
§ 54. [Sims case (1851)]
§ 55. [Burns case (1854)]
§ 56. [Garner case (1856)]
§ 57. [Shadrach case (1851)]
§ 58. [Jerry McHenry case (1851)]
§ 59. [Oberlin-Wellington case (1858)]
§ 60. [Christiana case (1851)]
§ 61. [Miller case (1851)]
§ 62. [John Brown in Kansas (1858)]
CHAPTER IV.
[FUGITIVES AND THEIR FRIENDS.]
§ 63. [Methods of escape]
§ 64. [Reasons for escape]
§ 65. [Conditions of slave life]
§ 66. [Escapes to the woods]
§ 67. [Escapes to the North]
§ 68. [Use of protection papers]
§ 69. [Fugitives disguised as whites: Craft case]
§ 70. [Underground Railroad]
§ 71. [Rise and growth of the system]
§ 72. [Methods pursued]
§ 73. [Colored agents of the Underground Railroad]
§ 74. [Prosecutions of agents]
§ 75. [Formal organization]
§ 76. [General effect of escapes]
CHAPTER V.
[PERSONAL LIBERTY LAWS.]
§ 77. [Character of the personal liberty laws]
§ 78. [Acts passed before the Prigg decision (1793-1842)]
§ 79. [Acts passed between the Prigg decision and the second Fugitive Slave Law (1842-1850)]
§ 80. [Acts occasioned by the law of 1850 (1850-1860)]
§ 81. [Massachusetts acts]
§ 82. [Review of the acts by States]
§ 83. [Effect of the personal liberty laws]
CHAPTER VI.
[THE END OF THE FUGITIVE SLAVE QUESTION (1860-1865).]
§ 85. [The Fugitive Slave Law in the crisis of 1860-61]
§ 86. [Proposition to enforce the Fugitive Slave Law]
§ 87. [Propositions to repeal or amend the law]
§ 88. [The question of slaves of rebels]
§ 89. [Slavery attacked in Congress]
§ 90. [Confiscation bills]
§ 91. [Confiscation provisions extended]
§ 92. [Effect of the Emancipation Proclamation (1863)]
§ 93. [Fugitives in loyal slave States]
§ 94. [Typical cases]
§ 95. [Question discussed in Congress]
§ 96. [Arrests by civil officers]
§ 97. [Denial of the use of jails in the District of Columbia]
§ 98. [Abolition of slavery in the District of Columbia]
§ 99. [Regulations against kidnapping]
§ 100. [Repeal of the Fugitive Slave Acts]
§ 101. [Early propositions to repeal the acts]
§ 102. [Discussion of the repeal bill in the House]
§ 103. [Repeal bills in the Senate]
§ 104. [The repeal act and the thirteenth amendment]
§ 105. [Educating effect of the controversy]
APPENDICES.
[APPENDIX A.]
Colonial laws relative to fugitives
[APPENDIX B.]
National acts and propositions relative to fugitive slaves (1778-1854)
[APPENDIX C.]
National acts and propositions relating to fugitive slaves (1860-1864)
[APPENDIX D.]
List of important fugitive slave cases
[APPENDIX E.]
Bibliography of fugitive slave cases and fugitive slave legislation
CHAPTER I. LEGISLATION AND CASES BEFORE THE CONSTITUTION.
§ 1. [Elements of colonial slavery.]
§ 2. [Regulations as to fugitives (1640-1700).]
§ 3. [Treatment of fugitives.]
§ 4. [Regulations in New England colonies.]
§ 5. [Escapes in New England: Attucks case.]
§ 6. [Dutch regulations in New Netherlands.]
§ 7. [Escapes from New Amsterdam.]
§ 8. [Intercolonial regulations.]
§ 9. [Intercolonial cases.]
§ 10. [International relations.]
§ 11. [International cases.]
§ 12. [Relations with the mother country.]
§ 13. [Regulation under the Articles of Confederation (1781-1788).]
§ 14. [Ordinance for the Northwest Territory (1787).]
§ 15. [The Fugitive question in the Constitutional Conventions.]
§ 1. Elements of colonial slavery.—By the middle of the seventeenth century, the settlements made in America by the English, Dutch, and Swedes were arranged for the most part in a line of little colonies closely following the Atlantic coast. To the west, wide forests and plains, broken only by the paths of the Indian, stretched on to the Pacific; while long intervals of unpopulated country separated the colonists on the north from the French in Canada, and on the south from the Spaniards in Florida.
In all the colonies thus grouped together, the system of slavery had already become well established, and with its institution the question of the escape and return of the slaves had necessarily arisen. The conditions of the country, both physical and social, gave unusual facilities for flight. The wild woods, the Indian settlements, or the next colony, peopled by a foreign race, and perhaps as yet without firmly established government, offered to the slave a refuge and possibly protection. Escape, therefore, as a peculiar danger, demanded peculiar remedies. Though it is the purpose of this monograph not so much to study the detail of legislation or escape in the colonies as to deal with the period from 1789 to 1865, a slight sketch of the intercolonial laws and provisions which preceded and in part suggested later legislation will first be necessary.
Almost immediately after the introduction of slavery, in 1619, we begin to find regulations made by the colonists upon this subject. At first they applied solely to their own territory, but soon agreements were entered into among several colonies, or between a colony and the Indians or the French in Canada. These acts and agreements recognized not only the negro, as at a later period, but also the white and the Indian slave. There existed in some of the colonies of this time a peculiar class of white people, who received no wages, and were bound to their masters.[1] Usually these redemptioners were laborers or handicraftsmen, but sometimes they were persons of education who had committed a crime, and were sold according to law for a term of years, or for life. One of the class is curiously connected with the education of no less a person than George Washington. An unpublished autobiography of the Reverend John Boucher, who from 1760 to the Revolution was a teacher and preacher in Virginia, contains the following paragraph noticing the fact:—
"Mr. Washington was the second of five sons, of parents distinguished neither for their rank nor fortune.... George, who, like most people thereabouts at that time, had no other education than reading, writing, and accounts, which he was taught by a convict servant whom his father bought for a schoolmaster, first set out in the world as a surveyor of Orange County."[2]
§ 2. Regulations as to fugitives.—The earliest regulation upon this subject is found among the freedoms and exemptions granted by the West India Company, in 1629, "to all Patroons, Masters, or Private Persons" who would agree to settle in New Netherlands. The authorities promised to do all in their power to return to their masters any slaves or colonists fleeing from service.[3]
A little later, the Swedish colonists in Pennsylvania asked from their government the same privilege of reclaiming fugitives.[4] The preamble of an act against fugitives in East Jersey, in 1686, explains these provisions. They found that "the securing of such persons as Run away, or otherwise absent themselves from their master's lawfull Occasion," was "a material encouragement to such Persons as come into this country to settle Plantations and Populate the Province.[5] In many of the Southern colonies, as Maryland and South Carolina, so severe were the acts against this class of bound colonists that a runaway might be declared outlawed, and might rightfully be killed by any person.[6]
Treatment of the Fugitives.
§ 3. Treatment of fugitives.—From 1640 to 1700, laws were also passed in New Jersey, Maryland, South Carolina, and Virginia. It is not necessary to follow out the provisions here,[7] but each of the Southern colonies, as in later regulations, provided most minutely for all possible cases. By a Virginia law of 1642, all persons who entertained runaways, whether slaves or hired freemen, were to be fined twenty pounds of tobacco for each night's hospitality. The fugitives were to add to their tenure of service double their time of absence, and on a second offence to be branded with the letter R.[8]
A curious regulation in 1660-1, in Virginia, provided that if a negro and white bound servant ran away together, since the negro's time of servitude was for life, and he was therefore incapable of making up his lost time, the white servant's punishment should be doubled by adding the negro's sentence to his own.[9] Another regulation, entitled "How to Know a Runaway," commanded that all recovered fugitives have their hair "cutt" close about their ears.[10]
Sometimes the penalties were even more severe, but the processes were much the same. A person who found a slave or vagabond without a pass usually took him before the next justice, who took cognizance of the captor's good service, and certified it in the next Assembly: the runaway was then delivered from constable to constable, until he was returned to his master.
After 1700 the process grows yet more elaborate; for example, take a North Carolina law of 1741. The securer of a runaway was to have seven shillings and sixpence proclamation money, and for every mile over ten which he conducted the fugitive threepence extra. When seized, runaways were to be whipped and placed in the county gaol. If the owner was known, he was notified and went for his slave; if not, a notice describing the runaway must be placed upon the door of the court-house, and sent to the clerk or reader of each church or chapel within the county. They were required to post all such notices every Lord's day for two months in some convenient place near the church. At the end of this time, should no claimant appear, the slave must be sent from constable to constable, till the public gaol of the government was reached. There, upon consent of the court or of two justices, he might be sold to hire by the gaoler.[11] The Maryland Archives record that in 1669 ten thousand pounds of tobacco were appropriated to build one of these log-house gaols wherein fugitive servants might be lodged.[12]
§ 4. Regulations in New England colonies.—Let us turn now to the New England colonies. Here we must expect to find but few provisions, since the class of slaves and bound servants was so small that it could easily be controlled. The first law in Massachusetts Bay was passed in 1630, and was entitled, "An Act respecting Masters, Servants, and Laborers." In accordance with the arbitrary methods of government then pursued, it included not only runaway servants, but also any persons who should "privily go away with suspicion of evil intention," and ordered the magistrate "to press men, boats, or pinnaces," and "to bring them back by force of arms." A humane provision, usually wanting in Southern laws, though also found in New Netherlands, declared that, whenever servants fled on account of the tyranny of their masters, they should be protected until measures for their relief could be taken.[13]
In Connecticut and New Hampshire similar laws were passed, and in 1707 Massachusetts Bay, in regulating the free negro population, enacted that every freeman or mulatto who should harbor a negro servant in his house without his owner's consent should pay five shillings for the use of the poor of the town.[14]
In those days, when bridges were few, the ferrymen were apparently much relied upon as agents to detect and apprehend runaways. In 1714 we find that several negro slaves had been carried over ferries, and thus escaped out of Rhode Island. The Assembly therefore enacted that "no ferryman or boatman whatsoever, within this colony, shall carry or bring any slave as aforesaid over their ferries, without a certificate under the hands of their masters or mistresses, or some person in authority, upon the penalty of paying all costs and damages their said masters or mistresses shall sustain thereby: and to pay a fine of twenty shillings for the use of the colony for each offence, as aforesaid." All persons were also commanded to take up any slave they might find travelling about without a pass.[15]
Escapes in New England.
§ 5. Escapes in New England: Attucks case.—Although we do not find records of fugitive slave cases tried at this time within the New England colonies, advertisements of runaways exist in sufficient numbers to prove that escapes were common. It seems probable, therefore, that the return of a slave when within his own colony was taken as a matter of course, and roused so little opposition, and required so simple a process at law, that matters concerning it would seldom find mention in the chronicles of the time. Here is a typical advertisement:—
"Ran away from Samuel Gilbert of Littleton, an indentured Servant Boy, named Samuel Gilson, about 17 years old, of a middling Stature for his Age, and wears black curled Hair, he carried away with him a blue cloth Coat, a light colored Jacket with sleeves, one pair of worsted Stockings, two striped woolen Shirts, and one good linnen Shirt. He went away in company with a short thick set Fellow, who wore a green coat and a green Jacket double breasted, also a pair Indian green Stockings. Whoever shall take up and secure, or give information of said runaway, so that his master may find him again, shall receive a Reward of two dollars and all necessary charges from
Samuel Gilbert.
"All masters of vessels and others are cautioned against harboring," etc.[16]
Again a case interesting not only as an illustration of the customs of the time, but also because the fugitive himself bears a name known to history in another connection, is noticed in the Boston Gazette of 1750. Here is advertised as escaping, October 2, 1750, from his master, William Browne of Framingham, Massachusetts, "A molatto fellow about twenty-seven years of age, named Crispus." After describing his clothing and appearance, a reward of ten pounds, old tenor, is offered for his return, and "all masters of vessels and others are cautioned against concealing said servant on penalty of law."[17] Tradition has it, however, that he was never arrested, but returned of his own accord after a short time, and was for the next twenty years a faithful servant.[18] Then, in 1770, presumably while in town upon one of the expeditions he often undertook to buy and sell cattle for his master, he was drawn into the Boston Massacre of March 5.[19]
A somewhat famous case, which also occurred in Massachusetts, though many years later, may here be mentioned. About 1769 one Rotch, a Quaker, and therefore probably opposed to slavery, received on board the whaler Friendship a young negro boy named Boston, belonging to the heirs of William Swain. At the end of the voyage his master, John Swain, brought action in the court of Nantucket against Captain Folger for the recovery of the slave; the jury, whether from lack of evidence or from sympathy cannot be determined, returned a verdict in favor of the defendant.[20]
Dutch and Intercolonial Regulations.
§ 6. Dutch regulations in New Netherlands.—The early New Netherlands regulations furnish many interesting provisions concerning fugitive servants. Apparently the servile class was numerous, and hard to govern. In the words of the ordinance of 1640, "many servants daily run away from their masters, whereby the latter are put to great inconvenience and expense; the corn and tobacco rot in the field, and the whole harvest is at a standstill, which tends to the serious injury of this country, to their masters' ruin, and to bring the magistracy into contempt." It was therefore ordained that runaways must, at the end of their term of indenture, serve double the time of their absence, and make good all loss and damage to their masters; while persons harboring fugitives were obliged to pay a fine of fifty guilders.[21]
§ 7. Escapes from New Amsterdam.—Within these Dutch colonies there is recorded a case of escape as early as 1659. Four menservants of Cornelis Herperts de Jager, of New Amsterdam, ran away to Manhattan. One of them soon returned, and in accordance with the regulation made in 1630 by the West India Company,[22] requiring the return of fugitives in their various settlements, one of the officers of the colony sent to Manhattan an order to arrest and bring back the remaining three in chains.[23]
§ 8. Intercolonial regulations.—It will be seen that most of the colonies considered some provision against runaways necessary to the welfare of the settlements. To secure such legislation in a single colony was a comparatively easy matter; but the unorganized and sparsely settled condition of the country rendered any intercolonial regulations difficult.
The first formal agreement of this kind was arranged by the New England Confederation of Plymouth, Massachusetts, Connecticut, and New Haven, in 1643. In their Articles of Confederation was a clause which promised: "If any servant runn away from his master into any other of these confederated Jurisdiccons, That in such Case vpon the Certyficate of one Majistrate in the Jurisdiccon out of which the said servant fled, or upon other due proofe, the said servant shall be deliuered either to his Master or any other that pursues and brings such Certificate or [24] This clause contains the earliest statement of the principles regarding the treatment of fugitive slave cases, afterward carried out in the United States statutes of 1787, 1793, and 1850. There was no trial by jury, but the certificate of a magistrate was sufficient evidence to convict the runaway.
It is probable, also, that the rendition of fugitives was considered a duty incumbent upon all colonies, whatever their relation to each other, since about this time we find an agreement made for the mutual surrender of fugitives between the Dutch at New Netherlands and the English at New Haven.[25]
Not only did the slaves of the Dutch escape to the English colonies, but they often fled to the forests, where recovery must have been almost impossible unless the Indians could be induced to hunt them out. Curious rewards were sometimes offered. Maryland, in 1669, ordered that any Indian who shall apprehend a fugitive may have a "match coate," or its value.[26] Virginia would give "20 armes length of Roanoke," or its value,[27] while in Connecticut "two yards of cloth" was considered sufficient inducement.[28]
We have record of several conferences upon this subject. Governor Burnett of New York asked his Indians to exert themselves in behalf of the Governor of Virginia, who had written to him about the escape of several of his negro servants to the mountains. The Indians promised their help in this and any other search; but as they seldom seem to have succeeded, it is probable that their sympathy was with the fugitives.[29] Again Governor Burnett demanded the restoration of a certain Indian slave whom they had kidnapped from the English. The Indians acknowledged the fact, but they said that he was then sold to others, and nothing further could be done.[30]
Canada even in these early times seems also to have been a haven for fugitives. In 1705 New York passed an act, which was renewed in 1715, to prevent slaves running away from frontier towns like Albany to Canada, because it was of great importance, they said, in time of war, "that no Intelligence be carried from the said city and county to the French in Canada."[31]
During all this time the Southern colonies, especially the Carolinas and Georgia, were also making many complaints in regard to the difficulty they had in recovering the fugitives, both Indian and negro, who were escaping in large numbers into Florida. There, among the Creek Indians and the Spanish at St. Augustine, they easily found refuge.[32] This difficulty was, however, not remedied in colonial times, but continued long after the formation of the Federal Union, and in fact until the close of the Seminole war, in 1845.
Intercolonial Cases.
§ 9. Intercolonial cases.—When, as was often the case, no agreement upon the return of fugitives had been arranged between the colonies, the rendition of a slave depended wholly upon the state of feeling existing between the two peoples, and sometimes became an important question. Between the New England colonies no cases have been found recorded, although we infer that there must have been reason for the insertion of a fugitive slave clause in the Articles of Confederation of 1643.[33]
Of other early cases one of the most interesting is the escape from Virginia of four Englishmen belonging to the class of bound servants. They rowed in a small boat up the coast as far as Cape May, where they landed.[34] They soon found themselves objects of suspicion with the people, and, as was a common practice, took refuge among the Indians. About a year afterward their masters tracked them to their place of refuge, and captured two of them, but the others were again beyond reach. The Indians, who evidently did not always befriend runaways, had just sold one of them, William Browne, to a Swede, and Browne, learning of his former master's appearance, had found opportunity to escape. The fourth of the fugitives was still among the Mantas, and could not be secured. Of the two recaptured, one was returned without trouble, but the other, Turc, who had just entered the service of a certain Pieter Aldrich, resisted his captors. A struggle took place upon the boat in which they were carrying him away. After wounding three of his guards, he succeeded in making his escape, only to be recaptured almost immediately. When tried for the deed at New Amsterdam, he received a death sentence.[35] In this case, one of the most complete in detail left to us, may be found, in the incidents of escape, pursuit, resistance, and final rendition, all the features of the later fugitive slave cases. It is also an example wherein the laws of the period, which required the rendition of a bound white man in the same manner as a negro slave, were strictly carried out: and in the diverse fates of the four men we find instances probably typical of the fortunes of most fugitives of the time.
§ 10. International relations.—The proximity of the French, Spanish, and Dutch settlements led to escapes from the colonies of one power into those of another. All were slaveholding communities, and there was no disposition to shield a slave because his lot was a hard one; but the distrust and enmity between neighboring colonies owing allegiance to different sovereigns caused such escapes to lead to petty quarrels. There was no system of extradition treaties; in fact, there was as yet little international law. Fugitives were demanded as an act of comity, and sometimes their delivery was refused. It was hardly a subject on which the home governments bestirred themselves. The colonies were left to make their own agreements, or to settle their own disagreements.
International Cases.
§ 11. International cases.—Thus far only those cases have been noticed which arose within and between colonies of the same nation. Let us now consider a very early case of disagreement between colonies of different nations, which occurred in 1646. The commissioners of the United Colonies made complaint to the Governor of New Netherlands that his Dutch agent at Hartford was harboring one of their Indian slaves. Soon after, Governor Stuyvesant was refused the return of some of his runaway servants from New Haven. Thereupon the angry Lords of the West India Company issued a proclamation commanding that there should be no rendition of fugitive slaves to New Haven. This provision continued in effect until Governor Elton sent back some of the fugitives to New Netherlands. It was then annulled, and a mutual agreement to return the runaways was entered into by the United Colonies and the Dutch.[36] Governor John Winthrop, in his History of New England, refers to the case, and says that Massachusetts Bay endeavored to bring about a reconciliation, and wrote to the Governor of New Netherlands intimating to him that "at their request he might send back the fugitives without prejudice to their right or reputation."[37]
Maryland also found difficulty, from the readiness with which her servants could flee north to New Netherlands. In the State Archives may be found a letter sent by the authorities to the Governor of New Netherlands, as follows:—
"Sir,—Some servants being lately fledd out of this colony, into yours, as is supposed, we could not promise ourselves from you that justice & faire correspondence betweene the two governments so neerly bordering & which are shortly like to be nearer neighbors in delaware bay, as to hope that vpon the receiving of these Outres & the demand of the parties interessted you will remand to us all such apprentice servants as are or shall run out of this government into yours; and will compell such other persons, as shall flie to you without a passe, being indebted or otherwise obnoxious to the justice of this place, to make such satisfaction to the parties endamaged by their unlawful departure, upon their complaints and proofe thereof, as you shall find justice to require. And you may promise yourself the like helpe and concurrence from this governm't in that or any other thing as shalbe in the power of it: And so we bid you heartilly farewell & rest.
"To the hon'ble the Governor of the New Netherlands."[38]
In 1659 the Dutch had occasion to ask the same favor of Maryland. Whether there had been trouble between the colonies since the earlier letter we do not know, but the spirit of the communication was quite different. Instead of assurances of good will, and expressions of a belief in the certainty of peaceful return, the Dutch threatened, if their servants were not secured to them, "to publish free liberty, access and recess to all planters, servants, negroes, fugitives, and runaways which may go into New Netherland."[39]
Trouble was also constantly arising between the French and English, or French and Dutch, in regard to the many runaways who fled from the Eastern colonies northward to Canada. In 1750 there was a dispute about a certain negro belonging to the English, but at that time in possession of the Sieur de la Corne St. Luc; and, in a letter to a friend, one of the officers of the colony makes the following explanation concerning them: "In regard to the negro in possession of Sieur de la Corne St. Luc I thought proper not to send him back every negro being a slave wherever he be. Besides, I am only doing what the English did in 1747. Ensign de Malbronne on board Le Screux had a negro servant who was at first taken from him; I took pains to reclaim him, but the English refused to surrender him on ground as above."[40]
§ 12. Relations with the mother country.—With only one country across the sea was any question of fugitives likely to arise. In England white slavery had long since died out, except as a punishment for crime; villeinage ceased about the time the colonies were settled. But the status of black slaves who were taken from the colonies to England was in practice unchanged.
The principle thus apparently established by custom was overthrown by a succession of legal decisions, culminating in the famous Somersett Case. It was first decided by Thomas Grahame, judge in the Admiralty Court, Glasgow, that a certain negro who had been brought into Great Britain must be liberated, on the ground that a guiltless human being taken into that country must be free.[41] In 1762 occurred another similar case. A bill had been filed in equity by an administrator to recover money given by his intestate to a negro brought to England as a slave. The suit was dismissed by Lord Northington, who said that as soon as a man set foot on English ground he was free.[42]
The Somersett case came ten years later. The circumstances were as follows. A Mr. Stewart, accompanied by his slave Somersett, left Boston on the 1st of October, 1769, and went to London, where he kept his slave until October 1, 1771. Then Somersett ran away, but his owner soon secured him and had him placed on board a vessel bound for Jamaica, probably with the intention of selling him as a slave. A writ of habeas corpus was then served upon the captain of the ship, and on the hearing Lord Mansfield decided that Somersett must be discharged. In England, he said, slavery could exist only by positive law; and in default of such law there was no legal machinery for depriving a man of his liberty on the ground that he was a slave. The importance of the case for the colonies lay not in the assertion of the principle that slavery depended on positive law, for the American statute-books were full of positive law on slavery; the precedent thus established determined the future course of England against the delivery of fugitives, whether from her colonies or from other countries.[43]
§ 13. International regulations under the Articles of Confederation (1781-1788).—When, on March 1, 1781, the Articles of Confederation went into effect, the only action taken by the United States on the subject of fugitives had been the negotiation of a treaty with the Delaware Indians, August 7, 1778, by which the parties bound themselves not "to protect in their respective States criminal fugitives, servants, or slaves, but the same to apprehend, secure, and deliver."[44] In seven of the eight other treaties negotiated with Indian tribes from 1784 to 1786, clauses were introduced for the return of black prisoners, or of "negroes and other property."[45] The States affected were chiefly Southern; but the article on the same subject in the Treaty of Peace in 1782 and 1783, was intended as much to protect the slaveholders of New York as those of Virginia. It was distinctly agreed that the British should not carry away "any negroes or other property."[46] The failure to abide by this agreement led to reclamation by the American government, but no indemnity was ever secured.[47]
English Law. Northwest Ordinance.
§ 14. Ordinance for the Northwest Territory.—Since all the thirteen colonies recognized slavery, the Revolution made no difference in any previous intercolonial practice as to the delivery of slaves; in framing the Articles of Confederation no clause on the subject was thought necessary. The precedent of the New England Confederation was forgotten or ignored. But the action of the States of Vermont, Pennsylvania, Massachusetts, Connecticut, and Rhode Island, in taking steps toward immediate or gradual emancipation, from 1777 to 1784, brought up a new question,—the status of fugitives in free regions. Before the change of conditions in the States was completely understood, the same question had arisen in the Western territories. Jefferson, in 1784, proposed to draw a north and south line through the mouth of the Kanawha, west of which there should be no slavery after 1800.[48] The next year a Northern man proposed a similar limitation in the territory north of the Ohio, and added a clause for the return of fugitive slaves to the original slave States.[49] Neither of these two propositions was carried, but the principles both of exclusion of slavery and of the return of fugitives appear in the Northwest Ordinance of 1787, the first legislation by Congress looking toward the surrender of fugitives by any Territory or State. In providing a government for the new Territory, it was enacted, July 13, 1787, that "any person escaping into the same from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid."[50] The fugitive clause seems to have provoked no discussion, but to have been accepted as a reasonable condition of the limitation of slavery.
Fugitive Question in Constitutional Conventions.
§ 15. The Fugitive question in the Constitutional Conventions.—While the Northwest Ordinance was passing through Congress, the Philadelphia Convention was framing a new Constitution, and the return of fugitives was again eagerly insisted upon by the slave States. The necessity of some positive stipulation that fugitives should be returned was felt to be even more necessary in a Constitution meant permanently to bind together a free and a slaveholding section. The only debate of which we have a record occurred August 28, 1787. Mr. Butler of North Carolina pressed the point in behalf of the Southern States. To his first proposition, "that fugitive slaves and servants be delivered up like criminals,"[51] Mr. Wilson objected; he saw no reason for obliging the state to arrest fugitives at public expense, while Mr. Sherman saw no more propriety in the public seizing and surrendering a slave or servant than a horse.[52] Mr. Butler therefore withdrew the proposition. He soon introduced a more particular provision, which was accepted and inserted in the Constitution, as follows:—
"No person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."[53]
In the various Constitutional Conventions, there was little discussion upon the matter. The Southern States in general considered the clause sufficient to protect their property. General Charles C. Pinckney, in South Carolina, said: "We have obtained the right to recover our slaves in whatever part of America they may take refuge, which is a right we have not had before. In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could, but on the whole I do not think them bad."[54] In North Carolina, Mr. Iredell explained to the Convention that the Northern delegates, owing to their peculiar scruples on the subject of slavery, did not choose the word "slave" to be mentioned; but since the present laws were so prejudicial to the inhabitants of the Southern States, some such clause was necessary.[55] In Virginia, Mr. Grayson discussed the provision giving Congress exclusive legislation over ten square miles surrounding the capital. It seemed to him that, unless the ten miles square be considered a State, "persons bound to labor who shall escape thereto will not be given up. For they are only to be delivered up after they shall have escaped into a State."[56] This objection, though perfectly good at the time, was later overcome by the adoption by Congress of the laws of Maryland for the regulation of the District of Columbia, whereby it was made slave territory. Mr. Mason did not think the clause provided sufficiently for the protection of their slaves,[57] but Mr. Madison urged its adoption, as a better security than anything they then had.[58]
In the North, there was apparently no discussion upon this article. Everywhere, however, it was thought that without such a clause the Southern States would not consent to the Union, and, in a spirit of compromise, the provision was accepted.
CHAPTER II. LEGISLATION FROM 1789 TO 1850.
§ 16. [Effect of the fugitive slave clause in the Constitution.]
§ 17. [The first Fugitive Slave Act (1793).]
§ 18. [Discussion of the first act.]
§ 19. [Propositions of 1797 and 1802.]
§ 20. [Propositions from 1817 to 1822.]
§ 21. [Period of the Missouri Compromise (1819-1822).]
§ 22. [Status of the question from 1823 to 1847.]
§ 23. [Canada and Mexico places of refuge.]
§ 24. [Status of fugitives on the high seas.]
§ 25. [Kidnapping from 1793 to 1850: Prigg case.]
§ 26. [Necessity of more stringent fugitive slave provisions.]
§ 27. [Action of Congress from 1847 to 1850.]
§ 28. [Slavery in the District of Columbia.]
§ 29. [The second Fugitive Slave Act (1850).]
§ 30. [Provisions of the second Fugitive Slave Act.]
§ 31. [Arguments for the bill.]
§ 32. [Arguments against the bill.]
§ 16. Effect of the fugitive slave clause in the Constitution.—By obtaining in the Constitution the insertion of a clause requiring the return of fugitives, a great step for the advancement of the interests of slavery had been taken. For this embodiment in the Constitution ever afterward formed a basis for the slaveholder's argument that the Constitution recognized and defended slavery, and was a justification to Northern men in their support of the later fugitive slave laws.
Although the clause did not in terms apply to the Territories, the Ordinance of 1787 was, on August 7, 1789, confirmed in terms which by implication continued the sixth article, including the rendition of slaves;[59] and in the earliest treaties made by the United States with Indian tribes, under the new Constitution, the return of negroes was expressly required.[60]
The First Fugitive Slave Act.
§ 17. The first Fugitive Slave Act (1793).—For some time, however, the provision of the Constitution remained unexecuted; and it is a striking fact that the call for legislation came not from the South, but from a free State; and that it was provoked, not by fugitive slaves, but by kidnappers. The case seemed to suggest that an act of Congress was necessary, more definite in conditions and detail than the provision of the Constitution.
A free negro named John was seized at Washington, Pennsylvania, in 1791, and taken to Virginia. The Governor of Pennsylvania, at the instigation of the Society for the Abolition of Slavery, asked the return of the three kidnappers; but the Governor of Virginia replied that, since there was no national law touching such a case, he could not carry out the request.[61]
On the matter being brought to the notice of Congress by the Governor of Pennsylvania,[62] a Committee, consisting of Mr. Sedgwick, Mr. Bourne of Massachusetts, and Mr. White, was appointed in the House of Representatives to bring in a bill or bills "providing the means by which persons charged in any State with treason, felony, or other crime, who shall flee from justice, shall, on the demand of the executive authority of the State from which they fled, be delivered up, to be removed to the State having jurisdiction of the crime; also providing the mode by which a person held to service or labor in one State under the laws thereof, escaping into another, shall be delivered up on the claim of the party to whom such service or labor may be due."[63]
A bill prepared by the House committee, of which Mr. Sedgwick was chairman, was reported, November 15, 1791;[64] but for some reason which does not appear, it was dropped, and a Senate committee, of which Calvert was chairman, was appointed, March 30, 1792, "to consider the expediency [of] a bill respecting fugitives from justice and from the service of their masters."[65] Nothing was done during this session, and, November 22, 1792, a second Senate committee was appointed, consisting of Johnston, Calvert, and Read,[66] and they submitted a bill, December 20, 1792.[67] Unfortunately, we have no details of the debate; but on December 28, a third Senate committee was appointed by adding Taylor and Sherman to the committee of November 22, and to them the bill was recommitted with instructions to amend.[68] At last, January 3, 1793, the bill was reported in a form not unlike that finally agreed upon.[69] Of the amendments offered, the text of only one is preserved in the Journals; it was for the insertion of a less sum than five hundred dollars as the penalty for harboring a fugitive, or resisting his arrest.[70] It was not adopted. After two debates, of which we have no record, the bill passed the Senate, January 18.[71] In the House it seems to have elicited little discussion, and it passed, February 5, by a vote of 48 to 7.[72] The bill became law by the signature of the President, February 12, 1793.[73]
In thus uniting with the clause providing for the extradition of fugitives from justice one requiring the return of fugitive slaves, Congress was but following examples set in 1643 by the Articles of Confederation,[74] and again in 1787 by the Constitution.[75] From the scanty records, it is possible to discern only that there was serious difference of opinion in the Senate, and that the measure finally adopted was probably a compromise. In the one amendment stated, there is a faint protest against the harshness of the law.[76]
§ 18. Discussion of the first act.—The provisions of the act of 1793 are quoted elsewhere;[77] their purport was as follows. The act provided at the same time for the recovery of fugitives from justice and from labor; but the alleged criminal was to have a protection through the requirement of a requisition, a protection denied to the man on trial for his liberty only. The act was applicable to fugitive apprentices as well as to slaves, a provision of some importance at the time. In the Northwest Territory there were so-called negro apprentices, who were virtually slaves, and to whom the law applied, since it was in terms extended to all the Territories. Proceedings began with the forcible seizure of the alleged fugitive.
The act, it will be observed, does not admit a trial by jury. It allowed the owner of the slave, his agent or attorney, to seize the fugitive and take him before any judge of a United States Circuit or District Court, or any local magistrate.[78] The only requirement for the conviction of the slave was the testimony of his master, or the affidavit of some magistrate in the State from which he came, certifying that such a person had escaped. Hindering arrest or harboring a slave was punishable by a fine of five hundred dollars. The law thus established a system allowing the greatest harshness to the slave and every favor to the master. Even at that time, when persons might still be born slaves in New York and New Jersey, and gradual emancipation had not yet taken full effect in Rhode Island and Connecticut, it was repellent to the popular sense of justice; there were two cases of resistance to the principle of the act before the close of 1793.[79]
Propositions of 1797 and 1802.
§ 19. Propositions of 1797 and 1802.—Until 1850 no further law upon this subject was passed, but as the provisions of 1793 were found ineffectual, many attempts at amendment were made. In 1796 a troublesome question arose out of the seizure, under the act of 1793, of four negroes who had been manumitted in North Carolina. A retroactive act of that State had declared them slaves again, and they had fled to Philadelphia where they were arrested. January 30, 1797, they petitioned Congress for relief, and after an exciting debate the House by a vote of 50 to 33 refused to receive the petition.[80] There is nothing in the scanty records which connects this case or petition with an attempt to amend the act; but it is altogether likely that it occasioned Murray's motion of December 29, 1796, for a committee to report on alterations of the law;[81] and that it led to the almost simultaneous appointment of a House committee on January 2,[82] and a Senate committee on January 3.[83] No report is recorded.
The coming on of difficulties with France, and the Alien and Sedition Acts of 1798, absorbed the popular attention. In 1800 debates on the slave trade and on the reception of petitions from free negroes began. January 22, 1801, a House committee was appointed to report a bill increasing the stringency of the act.[84] The bill was reported, but failed to be considered.[85] In the next Congress the matter was at last brought to an issue. A committee, of which Nicholson of Maryland was chairman, was appointed, December 11, 1801,[86] and reported only seven days later. The report was made a special order for December 21.[87] On that day no debate is recorded, but a petition from a free colored soldier of the Revolution was contemptuously denied reception.[88] January 14 and 15, the bill was debated freely, and from the debate and sundry amendments the character of the bill may be inferred. Not only harboring, but employing a fugitive, was made punishable; and it was ordained that every black employed must be furnished with an official certificate, and that every person who employed a negro must publish a description of him. Southern members "considered it a great injury to the owners of that species of property, that runaways were employed in the Middle and Northern States, and even assisted in procuring a living. They stated that, when slaves ran away and were not recovered, it excited discontent among the rest. When they were caught and brought home, they informed their comrades how well they were received and assisted, which excited a disposition in others to attempt escaping, and obliged their masters to use greater severity than they otherwise would. It was, they said, even on the score of humanity, good policy in those opposed to slavery to agree to this law."[89] This appeal to the humanity of the North failed to produce the requisite effect. On the test vote, January 18, 1802, every Southern member except two voted for the bill, every Northern member except five against it; the vote was 43 to 46, and the bill was laid aside.[90]
Propositions from 1817 to 1822.
§ 20. Propositions from 1817 to 1822.—For many years the question of amendment of the law does not appear to have come up in Congress. The abolition of the slave trade seems to have absorbed the attention of Congress. Several treaties were negotiated including clauses on the return of fugitives.[91] The question was brought up again in 1817 by Pindall of Virginia, who for several years urged a revision of the act. A committee of which he was chairman was appointed, December 15, 1817, and reported a bill, December 29, 1817.[92] This third proposition of general amendment led to a debate, January 26 and 29, 1818, in which for the first time we have a record of discussion on the principles of the act and its relations to human freedom. The opposition was based not only on constitutional, but on humanitarian grounds.[93] A petition of the Pennsylvania Abolition Society, asking for a milder law than that of 1793, added fuel to the discussion.[94]
The principle of the bill was that the fugitives should be surrendered by a requisition on the State Executive, as in the case of fugitives from justice: the question of proof was thus left to the courts of the State of the claimant, and there was to be no habeas corpus. The strongest expression of disapproval is found in the speech of Mr. Adams of Massachusetts, who said, "that, in guaranteeing the possession of slaves, the Constitution did not authorize or require the General Government to go as far as the bill proposed to render this bill effectual; that the bill contained provisions dangerous to the liberty and safety of the free people of color in other sections of the Union."[95] Mr. Rich of Vermont desired "that it might be so amended as to guard more effectually the rights of free persons of color. This motion he enforced by urging the oppressions to which these persons were now subjected, and the necessity of some regulation on the subject, which he thought might be very properly connected with this bill."[96] Mr. Livermore also showed that it exposed the colored men of the North to the peril of being dragged South, and there convicted.[97]
All these objections, however, were considered of little value by some who, like Smith of Maryland, thought that the subject of the free colored population and their protection should be treated separately, while Mr. Holmes of Massachusetts suggested that the operation of the writ of habeas corpus would render such acts of injustice improbable.[98] Mason, of the same State, objected to a trial by jury, which had been suggested, because "juries in Massachusetts would in ninety-nine cases out of one hundred decide in favor of the fugitives, and he did not wish his town [Boston] infected with the runaways of the South."[99]
Upon two constitutional points the opponents of the bill made a stand. Mr. Sergeant wished to change the bill materially, by making "the judges of the State in which ... slaves are seized the tribunal to decide the fact of slavery, instead of the judges of the State whence the fugitives escaped," but this was negatived by a large majority.[100]
Another objection to the bill, raised by Mr. Whitman, is noteworthy, since some years later it was the point made most prominent in Judge Story's decision in the Prigg Case.[101] Mr. Whitman disapproved of the provision making it a penal offence for a State officer to refuse his assistance in executing the act. He did not believe that Congress had any right to compel State officers to perform this duty; they could do no more than authorize it.[102]
A vote was taken, January 30, 1818, in the House, and the bill passed by a vote of 84 to 69.[103] It was ordered that the title be "An Act to provide for delivering up persons held to labor or service in any of the States or Territories who shall escape into any other State or Territory."
For the first time since 1793, amendment of the act seemed within reach. The Senate showed itself in other questions more inclined than the House to consider the claims of the South; but although Dagget's amendment to strike out the elaborate provision for the return of fugitives by executive requisition was not adopted,[104] the Senate first voted to limit the bill to four years,[105] and then added other amendments. The result was a non-concurrence with the House, and the failure of the bill,[106] March 13-16, 1818. A last attempt to take the bill up failed, April 10, 1818.[107]
Period of the Missouri Compromise.
§ 21. Period of the Missouri Compromise (1819-1822).—The loss of the bill of 1818 seems not to have discouraged the friends of amendment of the act of 1793. December 17, 1818, a resolution of the Maryland legislature was laid before the House, calling for protection against the citizens of Pennsylvania who harbored or protected fugitives.[108] A committee was appointed, January 15, 1819, which promptly reported next day, but the bill was not considered.[109]
The question of fugitives came incidentally into the great debate of the next session on the admission of Missouri. The region which sought admission as a slave State was flanked on the east by free territory, and was therefore peculiarly difficult to protect. A compromise, which made Missouri a slave State, prohibited slavery in all other territory gained from France north of 36° 30'.[110] In the prohibitory clause, however, it was provided "that any persons escaping into the same from whom labor or service is lawfully claimed in any State or Territory of the United States, such fugitive may be reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid."[111] During the immigration into Missouri which now began, large numbers of slaveholders took their slaves with them, and on the passage opportunities for escape were often found. In one instance, at least, recorded in Ohio, the public sympathy was so strongly with the fugitives that they were successfully protected from their masters even in court.[112]
Hardly was the ink dry on the President's signature of the Missouri Compromise (March 15, 1820) before propositions were made in both the House and Senate for new general fugitive slave acts. March 18, a House committee was appointed,[113] but no report is recorded. April 3, an inquiry was set on foot into the provisions of a Pennsylvania act hindering the operation of the act of 1793,[114] and the Secretary of State submitted a copy of the obnoxious act, April 18. On the day of the Secretary's report a proposition in the Senate to instruct the Judiciary Committee to report a bill was voted down.[115] Positive evidence cannot be obtained, but it would seem that a continued effort was made to take advantage of the agitation on the slavery question to secure a new fugitive slave act, as was done in 1850.
One more attempt was made in 1821-22. Mr. Wright presented, December 17, 1821, a resolution of the Maryland General Assembly praying for relief against the abettors of the fugitives in Pennsylvania.[116] He desired a special committee, but the question was referred to the Committee on the Judiciary, which reported a bill, January 14, 1822.[117] March 27 to April 1, it was debated, but finally tabled.[118] The character of the bill does not distinctly appear in the records.
§ 22. Status of the question from 1823 to 1847.—Although no amendment could be procured to the act of 1793, the government of the United States had repeatedly, by diplomatic demands and treaties, undertaken to recover fugitives, or their value, for Southern owners. The first Indian treaty negotiated under the Constitution, that of April 7, 1790, with the Creeks, required the return of negroes held as prisoners of war.[119] A similar clause appeared in the treaty made in 1814, at the end of the war with the Creeks, a war which had been provoked in part by their ready reception of fugitives.[120] In 1832 the government went so far as to promise to expend seven thousand dollars in paying for "slaves and other property alleged to have been stolen" by the Seminoles.[121]
With Great Britain, also, the encouragement of fugitives became a subject for negotiation. Much bitterness had been felt at the carrying away by the British, in 1783, of slaves who had taken refuge with them.[122] In the treaty of Ghent, therefore, a strict clause forbade the carrying away by the British of "any slaves or other private property."[123] A large number of slaves had, during the war, been received on board British vessels, and the humane but specious plea was set up by the British government that the clause applied only to slaves received after the date of the peace. A convention of 1818 submitted the question to the Emperor of Russia, who in 1822 made a decision not wholly favorable to either party; and in 1826,[124] by a second convention, Great Britain agreed to pay $1,204,960. This last award was obtained by a Pennsylvanian, Gallatin, acting under the direction of President John Quincy Adams, a citizen of Massachusetts.
Canada and Mexico Places of Refuge.
§ 23. Canada and Mexico places of refuge.—The existence on the northern and southwestern frontiers of regions in which slavery was practically, if not yet legally, extinct, brought about another set of complications. January 24, 1821, a resolution was presented in Congress from the General Assembly of Kentucky, protesting against the kindly reception of fugitives in Canada, and asking for negotiation with Great Britain on the subject.[125] In 1826, Mr. Clay, Secretary of State, instructed Mr. Gallatin, United States Minister at the Court of St. James, to propose the "mutual surrender of all persons held to service or labor under the laws of either country who escape into the territory of the other." The British government replied that any such agreement was impossible, and, though a second attempt was made by the United States, it was without success.[126]
In 1841 Mr. Woodbridge submitted a resolution to the Senate requesting the Committee on Foreign Relations to consider the expediency of entering into an arrangement with Great Britain for the arrest of fugitive slaves charged with crime who might escape over the northern boundary of the United States.[127] No action was taken upon the resolution.
The North, however, was not the only region to which slaves were fleeing at this time. Complaint was heard after 1830, that the "freedom and equality granted blacks by the Mexican Constitution and law of 1829, was attracting large numbers of slaves from Louisiana,"[128] while in Florida the Seminole trouble was not yet ended.
The last case of this kind occurred just at the outbreak of the Civil War. A slave by the name of Anderson was found one day by Mr. Seneca T. P. Diggs, wandering about his plantation in Howard County, Missouri, without a pass. Mr. Diggs thereupon arrested him as a fugitive slave. In the struggle which followed, the desperate runaway plunged a knife into Mr. Diggs's heart. His captor dead, Anderson hastened on to Canada.[129] There he lived a quiet and industrious life until 1860, when the American government called upon Canada, under the extradition treaty, to give up Anderson for punishment. He was arrested, but applied to the Toronto court for a writ of habeas corpus, which was refused. An appeal was immediately made to the Queen's Bench, England, which granted the writ.[130] In the trial Anderson was defended by Mr. Gerrit Smith in an eloquent speech, which made a great impression, and was circulated all over the United States.[131] The prisoner was discharged on a technical point.[132]
§ 24. Status of fugitives on the high seas.—When in 1830 gradual emancipation began in the British colonies, and in 1837 slavery ceased to exist there, a new set of complications arose. American vessels carrying slaves from one part of the United States to another were repeatedly driven or conveyed into British ports, and the slaves were there treated as ordinary fugitives, that is, as free men. Thus the Comet in 1830,[133] and the Encomium in 1834,[134] were cast away on the Bahamas, and the slaves on board could not be recovered. In 1835 the Enterprise was forced by stress of weather to enter a port of the Bermudas,[135] and the officers were not permitted by the British authorities to restrain the persons on board.
In none of these three cases were the negroes restored; but in 1840 the British government paid an indemnity for the first two cargoes, on the ground that at the time of the wrecks slavery had not yet been completely extinguished in the colonies.[136] No indemnity was allowed in the Enterprise case, and the British government declared that it could assume no responsibility in cases arising since the abolition of slavery.[137] Elaborate resolutions introduced by Calhoun, March 4, 1840, and passed, April 15, by a unanimous vote of the Senate, condemned the British principle.[138] But when, in the next year, the slaves on board the American ship Creole rose and by force carried her into Nassau,[139] the British government refused to return them either as slaves or as murderers.[140] Webster, as Secretary of State, strenuously urged the surrender. In 1853, an arbitrator decided that an indemnity must be paid to the American government.[141] On the other hand, when, in 1839, a Spanish vessel, L'Amistad, in which the slaves on board had revolted and killed their master, was brought into an American port, the Supreme Court refused to permit their surrender, on the ground that they were free by Spanish law, and therefore could not be tried for murder.[142]
Kidnapping from 1793-1850. Prigg Case.
§ 25. Kidnapping from 1793 to 1850: Prigg case.—Since slavery was now extinct in the more northern States, their population contained many free negroes. Upon them the eyes of the slave trader were often turned, as easy prey under the law of 1793, and many cases of kidnapping occurred. It was such instances, involving as they did the most manifest injustice and cruelty, that first aroused the sympathies of the people.[143] The border States like Pennsylvania were often the scene of these acts. The neighboring white families first began to try to protect the negroes settled near them, and a little later to give a helping hand to those escaping from slavery, and at last, in the underground railroad,[144] to complete a systematic organization for the assistance of fugitives. Cases of kidnapping are recorded as early as 1808.[145] In 1832 the carrying away of a black woman without process of law not only roused the people of Pennsylvania, but led to a decision which took away much of the force of the act of 1793.
A slave woman, Margaret Morgan, had fled from Maryland to Pennsylvania. Five years later, in 1837, Edward Prigg, an attorney, caused her to be arrested and sent back to her mistress without recourse either to the national or State act on the subject. In the act he disregarded a law of Pennsylvania, brought about in 1826 through the efforts of the Society for the Abolition of Slavery, which forbade the carrying out of the State of any negro with the intention of enslaving him. Accordingly, Mr. Prigg was arrested and convicted in the county court. The Supreme Court of Pennsylvania sustained the decision. Thence the case was taken to the Supreme Court of the United States. There the counsel for Mr. Prigg argued that the statute of Pennsylvania on which the indictment was founded was unconstitutional, since it conflicted with the law of 1793. Justice Story delivered the opinion of the court, and upon this decision all future judgments were based. He announced that the law must be carried out through national authorities alone; the States or State magistrates could not be forced into action.[146] After this, many States, seeing the advantage thus given them, passed laws which forbade the officers to aid in a fugitive slave case, and also denied the use of their jails for imprisonment.[147] Plainly the Prigg case showed a growing indisposition on the part of the States to carry out the law, however severe its provisions might be; and this disposition to evade its obligations is still further evidenced by the cases given in the next chapter.
§ 26. Necessity of more stringent fugitive slave provisions.—The increasing number of rescues,[148] and the occurrence of several cases of resistance, proved conclusively the inadequacy of the law of 1793. After the Prigg decision the provisions made for its execution through national powers were entirely insufficient. Underlying all these acts, the South also could but perceive a sentiment the growth of which, unless checked in some way, would at last permanently injure, if not destroy, their peculiar institution.
§ 27. Action of Congress from 1847 to 1850.—From 1822 until 1848 apparently no effort was made to secure a new law. Then a petition received in 1847 from the Legislature of Kentucky, urging the importance of passing such laws as would enable the citizens of slaveholding States to recover their slaves when they escaped into non-slaveholding States,[149] gave rise to a bill from the Committee on the Judiciary.[150] The bill provided "for the more effectual execution of the third clause of the second section of the Fourth Article of the Constitution."[151] It passed only to the second reading. In 1849, Mr. Meade proposed in the House to instruct the Committee on the Judiciary to report a fugitive slave bill.[152] No report apparently was ever made, but this was the last ineffectual proposition. In 1850, a new law was successfully carried in both Houses.
§ 28. Slavery in the District of Columbia.—During this period, from 1840 to 1850, the subject of slavery and fugitives in the District of Columbia began to occasion debate, which was never long silenced. It was notorious that almost under the windows of the Capitol negroes were confined in public jails on the ground that they were fugitives; and that a free negro so confined might be sold for his jail fees. Resolutions for an investigation of the condition of the jails were offered in 1848 by Mr. Giddings;[153] and Mr. Hall also introduced more sweeping propositions to repeal all laws of Congress and of Maryland which authorized or required courts, officers, or magistrates to issue process for arrest or commitment to the jail of the District of any fugitive slave.[154] Congress, however, was in a mood too conciliatory toward the South to consider these propositions; and no action was taken.
The Second Fugitive Slave Act.
§ 29. The second Fugitive Slave Act (1850).—In the early part of the first session of the Thirty-first Congress, Mr. Mason of Virginia introduced a bill to make the provisions of the fugitive slave act more severe,[155] and the bill was reported from the Committee on the Judiciary, January 16, 1850. Two additional amendments were soon offered by Mr. Mason. The first imposed a fine of one thousand dollars and imprisonment for twelve months upon any one who should obstruct the execution of the law. The second provided that the testimony of a fugitive should not be admitted. Mr. Seward, in opposition, proposed on the 28th to allow a fugitive the right of trial by jury, with a fine of five thousand dollars and the forfeiture of office should the right be disallowed by any judge or marshal.[156]
Mr. Clay's "Omnibus Bill," by which he intended to settle the territorial question then before Congress, and at the same time to check the antislavery movement, contained a fugitive slave clause, though not so severe in its provisions as Mr. Mason's.[157] This bill, however, was not debated as a whole, but each proposition considered separately, and thus Mr. Mason's bill became the basis of the fugitive slave provision in the Compromise of 1850.
The measure was considered, and various amendments were offered, until August 26, 1850, when it was passed by the Senate, and a few days later by the House;[158] the signature of President Fillmore was readily appended, and it became law, September 18, 1850.[159]
§ 30. Provisions of the second Fugitive Slave Act.—Every provision of the act was arranged for the protection and benefit of the slaveholders. It was based upon the law of 1793, but a number of new regulations were added.[160] Commissioners were to be chosen by the Circuit Courts of the United States and the Superior Courts of the Territories, to act with the judges of those courts in fugitive slave cases. Such commissioners could be fined one thousand dollars for refusing to issue a writ, and were liable for the value of any slave escaping from them. The testimony required for rendition was the official declaration of the fact of the escape of a slave by two witnesses, and the establishment of his identity by oath. The testimony of the accused could not be admitted. The right of trial by jury was not affirmed, and was therefore practically denied. A sheriff might call upon any bystander for help in executing the law, and the penalty for harboring or aiding in a rescue was increased from five hundred dollars, as in 1793, to one thousand dollars, and imprisonment for not more than six months. Should the slave escape, damages to the same amount were to be paid to the claimant. If a mob were feared, military force might be employed; and by a discrimination little likely to win respect for the act, the fee of the commissioner was to be increased from five to ten dollars whenever the case was decided in favor of the claimant.
Arguments for the Bill.
§ 31. Arguments for the bill.—The debate on the Fugitive Slave Bill more than any other part of the Compromise illustrates the character of the slavery conflict. Most of the Southern members urged the immediate necessity of a new law, but some of the more ardent considered the evil to be one which could be reached only through a change in public sentiment, and they thought all legislation valueless.[161] Mr. Mason thus presented the evils with which the law must cope. He stated that the border States had found it an impossibility to reclaim a fugitive when he once got within the boundaries of a non-slaveholding State; "and this bill, or rather the amendments, ... have been framed with a great deal of consideration, to reach, if practicable, the evils which this experience has demonstrated to exist, and to furnish the appropriate remedy in enabling the owner of a fugitive to reclaim him." Under the existing laws, "you may as well go down into the sea and endeavor to recover from his native element a fish which has escaped from you, as expect to recover such a fugitive. Every difficulty is thrown in your way by the population.... There are armed mobs, rescues. This is the real state of things."[162]
Not only were the laws thus set aside by individuals, but also through the Underground Railroad an organized system of depredation was carried on, whereby thousands of dollars were every year lost to the slaveholder.[163] As an illustration of the extent to which this disregard of law was carried, Mr. Yulee, one of the most extreme of the Southern men, instanced a convention which was then in session in New York "for the very purpose, openly avowed, of congratulation upon their successful violation of the Constitution in respect to fugitives, and to devise ways and means to encourage the escape of slaves."[164]
Such, according to the Southern Congressmen, was the condition of affairs. They then proceeded to contrast it with the situation as contemplated by the Constitution, and supported by the decision of the Supreme Court in the Prigg case. Mr. Butler insisted that this bill required "nothing more than is enjoined by the Constitution, and which contains the bond of union and the security of harmony; and in the name of Washington, I would invoke all parties to observe, maintain, and defend it." He said it was the handiwork of sages and patriots, and resulted from intelligent concessions, for the benefit of all.[165] Many speeches were filled with prophecies, more or less openly expressed, of the dissolution of the Union. Mr. Soulé said the South must fight for its rights, since it is the weaker of the two sections.[166] It had come down to the question, How could the Union be preserved?[167] Some concessions must be made. Mr. Badger urged the bill, because it "will give assurance, it will satisfy the public mind that the Government is disposed, is truly anxious, to accomplish the restitution of fugitive slaves; sincerely wished and is resolved to do right to the uttermost of its power. The proof of this will be complete, because we furnish the best means for the recovery of the slave himself, and if these fail we can secure prompt and adequate indemnity for the loss."[168]
Arguments against the Bill.
§ 32. Arguments against the bill.—On the Northern side, there seems to have been an admission that some bill of the kind was necessary for the interests of the Union. The opposition dwelt chiefly, therefore, upon the details of the measure. Many considered them unjust, as recognizing only one class of rights, those of the masters. Mr. Chase, from the antislavery wing, demanded that a claim of this kind be put on the same footing as any other statutory right. "Claims of right in the services of individuals found under the protection of the laws of a free State must be investigated in the same manner as other claims of right. If the most ordinary controversy involving a contested claim of twenty dollars must be decided by jury, surely a controversy which involves the right of a man to his liberty should have a similar trial.... It will not do for a man to go into a State where every legal presumption is in favor of freedom, and seize a person whom he claims as a fugitive slave, and say, 'This man is my slave, and by my authority under the Constitution of the United States I carry him off, and whoever interferes does so at his peril.' He is asked, 'Where is your warrant?' and he produces none; 'Where is your evidence of claim?' and he offers none. The language of his action is, 'My word stands for law.'"
CHAPTER III. PRINCIPAL CASES FROM 1789 TO 1860.
§ 33. [Change in character of cases.]
§ 34. [ The first case of rescue (1793).]
§ 35. [President Washington's demand for a fugitive (1796).]
§ 36. [Kidnapping cases.]
§ 37. [Jones case (1836).]
§ 38. [Solomon Northrup case (about 1830).]
§ 39. [Washington case (between 1840 and 1850).]
§ 40. [Oberlin case (1841).]
§ 41. [Interference and rescues.]
§ 42. [Chickasaw rescue (1836).]
§ 43. [Philadelphia case (1838).]
§ 44. [Latimer case (1842).]
§ 45. [Ottoman case (1846).]
§ 46. [Interstate relations.]
§ 47. [Boston and Isaac cases (1837, 1839).]
§ 48. [Ohio and Kentucky case (1848).]
§ 49. [Prosecutions.]
§ 50. [Van Zandt, Pearl, and Walker cases (1840, 1844).]
§ 51. [Unpopularity of the Fugitive Slave Act of 1850.]
§ 52. [Principle of the selection of cases.]
§ 53. [Hamlet case (1850).]
§ 54. [Sims case (1851).]
§ 55. [Burns case (1854).]
§ 56. [Garner case (1856).]
§ 57. [Shadrach case (1851).]
§ 58. [Jerry McHenry case (1851).]
§ 59. [Oberlin-Wellington case (1858).]
§ 60. [Christiana case (1851).]
§ 61. [Miller case (1851).]
§ 62. [John Brown in Kansas (1858).]
§ 33. Change in character of cases.—The cases of escape which occur in the period beginning with the formation of the Constitution, and ending with the passage of the Fugitive Slave Law in 1850, will be found, in comparison with those of colonial times, much more frequent, more complex in action, and more varied in detail. Instead of many colonies under governments independent one of another, there was now one government and one country; nevertheless, the extinction of the system of bondage and the rise of the antislavery sentiment in the Northern States brought into the cases new and difficult elements. No attempt will be made to mention the cases in their chronological order, or to describe them all. They will be classified into cases of simple escape, of kidnapping, of rescue, and of State interference; and typical examples will be described in each category.
The First Case of Rescue.
§ 34. The first case of rescue.—The first attempt to enforce the act of 1793, of which any record has been discovered, immediately revealed its unfairness, and the indisposition of the North to carry it out.
Mr. Josiah Quincy, then a young lawyer, afterwards known as a public man and the President of Harvard College, has left an interesting account of his connection with the case. "He states that the process was issued by a justice of the peace, that he was retained as counsel for the alleged slave, that he prepared his brief, and went down loaded with all the necessary authorities. He found a great crowd of people assembled; but while he was in the midst of the argument, he heard a noise, and, turning around, he saw the constables lying sprawling on the floor, and a passage opening through the crowd, through which the fugitive was taking his departure without stopping to hear the opinion of the court, and that was the last of that case, and that was the last of the law of 1793 in Massachusetts."[169]
§ 35. President Washington's demand for a fugitive.—As has been noticed in a previous chapter, George Washington's boyhood was connected with white slavery. Now, at the zenith of his public life, we find one of his chattels the occasion of the first recorded refusal on moral grounds to return a slave. In 1796, President Washington wrote to Mr. Whipple, Collector of Portsmouth, N. H., to send back to him one of his slaves who had escaped to that place, if it could be done without exciting a mob. This letter has been preserved, and the following extract gives us an insight into President Washington's opinions upon the rendition of fugitives:—
"However well disposed I might be to gradual abolition, or even to an entire emancipation of that description of people, (if the latter was in itself practicable,) at this moment it would neither be politic nor just to reward unfaithfulness with a premature preference, and thereby discontent beforehand the minds of all her fellow serv'ts, who, by their steady attachment, are far more deserving than herself of favor."[170]
Mr. Whipple answered, that any return would be impossible; public sentiment was too strong against it.
Kidnapping.
§ 36. Kidnapping cases.—The great number of cases of kidnapping throughout the period from 1793 to 1850 show what cruel and unjust deeds were possible under the existing system, and served as nothing else could to rouse people to the defence of negroes. Various were the methods by which, in spite of law, kidnappers were enabled to secure their prey. Perhaps the most common practice, in places where the courts were known to be friendly to slavery, was to arrest a man on some false pretence, and then, when he appeared in court without opportunity to secure papers or witnesses, to claim him as a fugitive slave. Most of these cases occurred in communities bordering upon or near the Southern States. The risk and trouble of transporting slaves across free States were so great, that up to 1850 we seldom hear of kidnapping cases, and rarely of the capture of a genuine fugitive in the New England States.
The natural consequence of such acts of outrageous violence was to rouse people to the forcible rescue of the captured negroes. In the earliest cases, colored people seem to take the leadership; later on, the whites joined, and became most active in the work.
§ 37. Jones case.—The following instance well exemplifies this form of oppression. George Jones, a respectable colored man, was arrested on Broadway, New York, in 1836, on the pretext that he had committed assault and battery. As he knew that no such charge could be sustained against him, he at first refused to go with his captors; but finally he yielded, on the assurance of his employer that everything possible should be done for him. He was then placed in Bridewell, and his friends were told that when they were wanted they "would be sent for"; but, soon after one o'clock that same day, he was taken before the Hon. Richard Riker, Recorder of New York, and to the satisfaction of that magistrate was proved to be a slave. Thus, in less than two hours after his arrest he was hurried away as the property of the kidnappers: their word had been accepted as sufficient evidence, and he had not been allowed to secure the presence of a single friendly witness.[171]
§ 38. Solomon Northup case.—Sometimes, if they feared to enter their case in court, slave hunters could find opportunity, by watching a negro for a while, to carry out their plans through some small deception. One of the most striking of these cases is that of Solomon Northup, who has written an account of his experiences as freeman and as slave. He was born in 1808 in New York State. His father had been made a free man by the provisions of his master's will. Thus Solomon was brought up under the influences of freedom, and knew little of slavery. After his marriage, he lived for some years in Saratoga. Here he earned a comfortable livelihood. During the day he worked about the hotels, and in the evenings he was often engaged to play the violin at parties. One day, two men, apparently managers of a travelling circus company, met him and offered him good pay if he would go with them as a violinist to Washington. He consented. Their behavior seemed to him peculiar, but he remained in their service, only to find himself one morning in a slave pen in Washington. How he got there remained always a mystery, but it is evident that he must have been drugged. Resistance was useless. He was carried South and sold to Mr. Epps, a hard master, with whom he remained for twelve years.
After he had long given up all hopes of escape, a friend was found in a Northern man who was working on the same plantation. Mr. Bass consented, though at a great risk to himself, to write some letters, telling Solomon's story to his Northern friends. The letters reached their destination, and, under the law of 1840 against kidnapping, a memorial was prepared to the Governor of New York. He became interested, and immediately sent a man South to find Northrup. After a long search, the agent was directed to Mr. Epps's plantation. Much to the disappointment of the master, who used every means to prevent his return, Solomon was identified at last, and went back to New York again a free man. Efforts were made to prosecute the kidnappers; but as sufficient evidence could not be obtained, no case was made out.[172]
§ 39. Washington case.—So bold did these stealers of men become, that they sometimes resorted to simple force, without the slightest attempt at concealment. A case of this kind occurred in Washington, D. C., between 1840 and 1850. Three or four men seized a negro who was employed in a hotel near the Capitol, and dragged him away. Mr. Hall, proprietor of the house, after trying in vain to prevent the arrest, succeeded at last in compelling them to take the man before a magistrate. The justice declined to assume jurisdiction in such a case, and before any other protection could be provided, the man was hurried by the kidnappers into a hack, and taken across the Potomac into bondage.[173]
§ 40. Oberlin case.—Occasionally the result was less fortunate for the captors. In Oberlin, three slave hunters seized by force a negro man and his wife, and carried them to an inn for the night. In the mean time the people of the town decided that the negroes must have a trial. They therefore employed a lawyer, who discovered that the writ for the capture was illegal, and secured a hearing. The captives were placed in jail, but, aided by some undivulged agency, they managed to break the grates of their prison windows, and escaped to Canada before the day set for trial.[174]
Interference and Rescues.
§ 41. Interference and rescues.—After a kidnapping case had occurred in a Northern village or town, measures were frequently taken by the indignant citizens to prevent the recurrence of such acts. They organized vigilance committees, or the antislavery societies took it up as a part of their work. In a free community, public sentiment would not allow negro towns-people to stand entirely unprotected. Thus many of the cases of interference and rescue were the result of some organized movements on the part of the white people, though occasionally they came about through the unpremeditated action of a mob.
§ 42. Chickasaw rescue.—The first case which has been found occurred in 1836. A writ of habeas corpus was served against Captain Eldridge of the brig Chickasaw, for holding two colored women in his ship with the intention of carrying them South. As both presented free papers at the hearing, the judge ordered them discharged; but the agent of John B. Morris of Baltimore, who demanded their return, declared that he would soon have sufficient evidence to prove them fugitives. Thereupon the colored people rushed in, took the women to a carriage, and carried them away to safety.[175]
§ 43. Philadelphia and Kennedy cases.—A similar but unsuccessful attempt was made in Philadelphia in 1838. A slave had been delivered to the man claiming to be his master. As the captors were about to take him away, a crowd of colored people gathered and attempted to rescue him. It was not so simple a matter in a large city as in a country town. A body of police soon appeared, protected the slaveholders, and finally arrested some of the leaders among the free blacks.[176]
A few years later, in Carlisle, Pennsylvania, three negroes were arrested and their identity established as the slaves of Messrs. Kennedy and Hollingsworth of Maryland. The colored people of the neighborhood had caused a writ of habeas corpus to be issued and a second hearing was held. Judge Hepburne decided that the magistrate first employed had no right to commit the alleged fugitives, but he himself remanded them. A riot ensued, and some thirty-six persons were tried for participating in it.[177]
§ 44. Latimer case.—In the Latimer case, the first of that series of famous fugitive slave trials which took place in Boston, was strongly developed the feeling against kidnapping, or in fact against the rendition of a slave under any circumstances.
In 1842, George Latimer was seized in Boston without a warrant, at the request of James B. Grey of Norfolk, Virginia. Latimer's counsel, Samuel E. Sewall and Amos B. Merrill, sued out a writ of habeas corpus, but after argument Chief Justice Shaw denied it. Mr. Grey asked for time to procure evidence against Latimer from Virginia. The judge ruled that the request should be granted, and that Latimer should for the time being be kept in the custody of the city jailer, Nathaniel Cooledge. A writ of personal replevin, under the act of 1837 securing trial by jury,[178] was then sworn out, but Justice Shaw decided that, according to the decision by the Supreme Court in the Prigg case, the law was illegal.[179]
The proceedings aroused great indignation throughout the city and State. Meetings to devise means of aiding Latimer were held in Faneuil Hall and Belknap Street church. Stirring speeches were made by Wendell Phillips and others, and resolutions condemning the proceedings of the authorities, and remonstrating against the return of Latimer, were adopted. Bands of ruffians strove to break up the meetings, and succeeded in greatly disturbing them. To rouse the people, to give expression to public sentiment, and to spread the news from day to day, Dr. H. I. Bowditch and Dr. W. F. Channing edited a paper called "The Latimer Journal and North Star." This was published for a number of weeks by the friends of the fugitive. Petitions were sent to the sheriff to remove the jailer, and to the Governor asking the removal of the sheriff if he did not accede to their demand. Thereupon Latimer's custodian agreed to give him up for a sufficient payment. The sum of four hundred dollars was accordingly raised, the proceedings came to an abrupt termination, and Latimer was released.
The excitement produced, however, did not die out immediately, and some of the results were far-reaching. So intense was the public excitement, that, soon after, a petition was prepared and sent to Congress, asking an amendment to the Constitution. This was signed by fifty thousand people in Massachusetts, and presented in the House by Mr. Adams. Another, signed by sixty-five thousand people, was sent to the legislature. The effect was the act of 1843, forbidding all officers to aid in the recapture of a fugitive slave, or to permit the use of State jails for their imprisonment. The petition to Congress was not received. A resolution from the Latimer committee, which proposed an amendment to the Constitution so as to base representation on "free persons," brought about much discussion, and was not received in the House. In the Senate it excited even more violent opposition, and the resolutions were laid on the table and not printed.[180]
§ 45. Ottoman case.—Similar indignation was felt in Boston over the case of Captain Hannum of the brig Ottoman. He had found a runaway concealed on board, but had set sail to return, evidently with the intention of taking the man back into captivity. A steamer was sent out to rescue the slave, but the Ottoman managed to elude it, and the man was lost. At a meeting held September 24, 1846, a committee was appointed for the purpose of preventing similar outrages.[181]
Interstate Relations.
§ 46. Interstate relations.—The spirit of opposition to the execution of the Fugitive Slave Law made itself felt, not only in popular demonstrations and in legislation, but in interstate relations. We have already noticed the Prigg case,[182] and its effect in relieving the States from any responsibility in the enforcement of the law. Other States took advantage of this decision, and of the general principle of international law, that one nation or state is not bound to enforce the municipal law of another.
§ 47. Boston and Isaac cases (1837-1839).—In 1837 a runaway was found on the ship Boston, then on her homeward voyage from Georgia to Maine. After landing, the slave succeeded in getting to Canada. The Governor of Georgia charged the captain with slave-stealing, and demanded his return as a fugitive from justice. The Governor of Maine would not comply with the request, because, as he said, the laws of that State recognized slaves not as property, but as persons. The indignant legislature of Georgia adopted resolutions calling upon Congress so to amend the laws that the Governor of Maine should be compelled to give up slave stealers as fugitives from justice. Resolutions were presented in the United States Senate, but no action was taken.[183]
The refusal to use State machinery against fugitives extended to the process of extradition against persons connected with the rescue of slaves. Thus in the Isaac case, in 1839, Virginia asked New York for the arrest of three colored men who were accused of abetting a slave's escape. The Governor of New York returned answer, that no State could demand the surrender of a fugitive from justice for an act which was made criminal only by its own legislation.[184]
§ 48. Ohio and Kentucky case.—Kentucky, in 1848, demanded from the Governor of Ohio the extradition of fifteen persons on the charge of aiding the escape of a fugitive. Governor Bell refused, on the ground that Ohio laws did not recognize property in man.[185]
Prosecutions. Act of 1850.
§ 49. Prosecutions.—The effects of the aid and protection thus given fugitives by Northern people or governments awakened among the slaveholders a feeling of wrong and indignation. The Fugitive Slave Law was clear, and they determined to carry it out to the letter. They began, therefore, energetically to prosecute people for aiding and harboring escaping slaves. The case just mentioned shows how difficult it was to secure prosecutions beyond the State boundaries. When the offence occurred within the bounds of a slave State, the judgments were most severe, and the heaviest possible fines and longest terms of imprisonment were inflicted for simple acts of charity.
§ 50. Van Zandt, Pearl, and Walker cases.—Mr. Van Zandt, returning into the country from Cincinnati one day in 1840, took nine fugitive slaves from Kentucky into his farm wagon. He was stopped by three persons, and all but two of the slaves were recaptured. Mr. Van Zandt was arrested, taken into court, and fined twelve thousand dollars, which exhausted his entire property.[186]
A still more severe penalty was that imposed upon Captain Drayton, of the schooner Pearl, in 1848. He took on board seventy-five fugitive slaves, and sailed up the Potomac. An armed steamer, sent in pursuit, overtook them and brought them back. Captain Drayton and another officer of the schooner were placed in prison, where they remained for twenty years, and at last were relieved only through the efforts of Charles Sumner.[187]
Another instance of the same sort is the case of Mr. Jonathan Walker, in 1844. With seven fugitives he embarked from Pensacola in an open boat for the Bahama Islands, but he received a sun-stroke and was obliged to leave the management of the craft in the hands of the negroes. On account of the accident, they were overtaken by two sloops, and both fugitives and their protector captured. Mr. Walker was twice tried, imprisoned, sentenced to stand in the pillory, and branded on the hand with the letters S. S., slave stealer.[188] The crime and the punishment have alike been glorified in Whittier's verses:—
"Then lift that manly right hand, bold ploughman of the wave!
"Its branded hand shall prophesy 'Salvation to the Slave!'
"Hold up its fire-wrought language that whoso reads may feel
"His heart swell strong within him, his sinews change to steel."[189]
§ 51. Unpopularity of the Fugitive Slave Act of 1850.—The passage of the new law probably increased the number of antislavery people more than anything else which had occurred during the whole agitation. Many of those formerly indifferent were roused to active opposition by a sense of the injustice of the Fugitive Slave Act as they saw it executed in Boston and elsewhere. Hence, in the cases of the period from 1850 to the outbreak of the Civil War, we shall find a new element. The antislavery party, grown strong, resisted the regulations, and instead of the unquestioned return of a fugitive, as in colonial times, or of prosecutions carried on under the simple conditions of the act of 1793, the struggle became long and complex. In fact during this time hardly an important case can be cited in which there was not some opposition to the natural course of the law. These exasperating effects were not at first apparent to the South, since before the famous rescues began several cases of rendition showed the power of the Executive. As the escapes grew more and more frequent yearly, increasing all the time in boldness, the slaveholders put forth greater efforts to punish the offenders, and prosecutions were numerous. But the "new law had no moral foundation," and against such an act public sentiment must sooner or later revolt, no matter how severe may be its provisions.[190] As Mr. James Freeman Clarke has said, "It was impossible to convince the people that it was right to send back to slavery men who were so desirous of freedom as to run such risks. All education from boyhood up to manhood had taught us to believe that it was the duty of all men to struggle for freedom."[191]
§ 52. Principle of the selection of cases.—The large number of cases occurring between 1850 and 1860 renders it impossible to present a detailed account of them all in a brief monograph. The selection, therefore, includes only such as are typical of the various phases of the agitation.
§ 53. Hamlet case (1850).—The first recorded action under the provisions of the law of 1850 took place on the 26th of September of that year, just eight days after the passage of the act. James Hamlet, a free negro, who with his family had been living for several years in New York, was on that day arrested by a deputy United States Marshal as the fugitive slave of Mary Brown of Baltimore. After a hasty examination by Commissioner Gardiner, he was surrendered in accordance with the new law. These proceedings were not sufficiently well known at the time to excite a mob, but when discovered they roused so strong a feeling that the money necessary to redeem Hamlet was almost immediately raised, and on the 5th of October he was brought back from slavery.[192]
Sims and Burns.
§ 54. Sims case (1851).—Another instance in Boston, often mentioned as the first under the law of 1850, but really six months later than the Hamlet case, is that of Thomas M. Sims. A common method of seizure was followed. Marshal Tukey arrested Sims on a false charge of theft. Mr. Potter of Virginia then claimed him as his slave. Court Square was filled with people. The Marshal feared a popular outbreak while the matter was pending, and, to the indignation of the city, caused the court-house in which Sims was confined to be surrounded with chains. As these were but four feet from the ground, the judges as they went in and out from the sessions were forced, morning and night, to bow beneath them. The building was also strongly guarded by a company of armed men, ever afterward known as the "Sims Brigade." Robert Rantoul, Jr. and Samuel E. Sewall conducted Sims's case. Commissioner Curtis overruled the constitutional objections to the Fugitive Slave Law, and to the judicial functions of the Commissioners of the United States courts. Then, despite all efforts of the antislavery people in his behalf, the certificate which sent Sims back to Virginia was made out and signed by Commissioner Curtis.[193] The Liberator says of the popular sentiment: "One feeling was visible on almost every countenance, commiseration, humiliation,—commiseration for the victim, humiliation at the degradation of Massachusetts. No man talked, no man thought, of violence. Why? Because it is acquiesced in? No! no! Because it is approved? A thousand times, no! but because government is pleased to enforce the law, and resistance is hopeless."[194] Sims was taken from his cell in the early morning, observed only by a few faithful vigilants, and, amid platoons of armed men, conducted to the United States ship Acorn, which was detailed to carry him back to the South.[195]
The indignation of the antislavery people remained to be expressed, and a mass meeting was held on the Common and in Tremont Temple. Wendell Phillips and Theodore Parker addressed the assemblage, and Phillips noticed the fact that hostile troops had not been seen in the streets of Boston since the redcoats marched up from Long Wharf.[196]
§ 55. Burns case (1854).—The rendition of Anthony Burns in 1854 was the last great fugitive slave case which occurred in Boston. Burns was the property of Charles F. Suttle of Virginia. He escaped in 1854, and came to Boston. One of the first things he did was to write a letter to his brother, still a slave in the South. Unfortunately, though this was mailed in Canada, by some oversight it was dated in Boston. Since a letter to a slave was always opened by the master, Burns's hiding place was discovered.[197] He was arrested upon the usual charge of theft. Then, upon a warrant issued by Judge Loring, he was claimed as a fugitive slave by Suttle.
When the knowledge of the arrest began to circulate, the most intense excitement prevailed. Handbills asking all antislavery people to go to Boston were sent throughout the country. Public meetings held in Faneuil and Meionaon Halls were crowded with representatives from all the towns about.[198] One of the people who took part in the attempted rescue which followed one of these meetings thus describes it:—
"On the evening of the 26th of May, we went down to Faneuil Hall to hear Wendell Phillips. He counselled waiting until morning before any attempt to rescue Burns should be made, but the excited audience silenced him with shouts of 'No, no! to-night! to-night!'
"Mr. Phillips saw that it was useless to try to go on, so he sat down and Mr. Theodore Parker began speaking. At first he advocated the same plan, but at last, as he found the crowd growing more and more eager and uproarious, he said, 'Well, if you will, let us go!' and led the way out of the hall. The people followed, and my friend and I were among the first to reach the court-house. There we found prepared for us long beams and boxes of axes. Five or six men seized one of these beams, and before its pressure the large door of the court-house crushed like glass. Mr. Higginson first stepped in, but just then a pistol shot was heard, and the mob fell back. Mr. Higginson looked around, and entreated them not to desert him, but the favorable moment was gone. The people should have lost no time in filling the house, for the marines had been ordered from the Navy Yard, and when they appeared nothing further could be done."[199] In this riot James Batchelder, one of the Marshal's guards, was killed.
At the trial, though Burns was ably defended by Mr. R. H. Dana and others, it was of no avail. His identity was unfortunately established from the first. He had recognized and addressed his master, and also a Mr. Brant, who had once hired him. The order for his rendition was therefore at once given.[200]
Guarded by a large military force he was conducted through the streets, filled with an indignant multitude, to the United States cutter Morris, which had been ordered by the President to take him back.[201] Many buildings on the route were hung with black, and so great was the popular excitement, that Rev. J. F. Clarke, an eyewitness of the affair, has said: "It was evident that a very trifling incident might have brought on a collision, and flooded the streets with blood."
The difficulty of enforcing the act was shown in the precautionary measures immediately adopted by the government. The city police, the militia, the marines, and some regular troops, were ordered out to the task of guarding one poor fugitive. It cost the country one hundred thousand dollars to send this single slave back to his master.[202]
Not long after Burns's return, a sum of money, to which Charles Devens, United States Marshal at his trial, contributed largely, was raised in Boston and the vicinity for his purchase; but it was found impossible to effect it.[203]
Mr. Higginson, Wendell Phillips, and Theodore Parker, with others, were indicted for riot, but the indictment was quashed by Judge Curtis on technical grounds, and they were discharged.[204]
Garner and Shadrach.
§ 56. Garner case (1856).—Of all the cases of rendition, the saddest, and next to the Burns case probably the best known at the time, was that of Margaret Garner. In accounts of the Underground Railroad we are told that winter was the favorite season for flight in the section of the country south of the Ohio, since ice then covered the river, and the difficulty of crossing by boat did not arise. It was at this season that Simeon Garner, his son Robert, and their families, fled from Kentucky and crossed the frozen stream to the house of a colored man in Cincinnati. They were soon traced thither, and after a desperate hand to hand struggle the house was entered. There the pursuers found that Margaret Garner, preferring for her children death to slavery, had striven to take their lives, and one lay dead. The case was immediately brought into court, where, despite the efforts made to save them, rendition was decided upon. On the way back, Margaret, in despair, attempted to drown herself and her child in the river; but even the deliverance of death was denied her, for she was recovered and sold, to be carried yet farther south.[205]
§ 57. Shadrach case (1851).—In the three typical cases just described, neither the law's delay, violent interference, nor the desperation of the slave, availed to prevent the return of the fugitive to the oppressor. Let us turn from this group, and take up those more important cases wherein the law was not allowed to complete its course, but rescues were accomplished, either by free negroes or antislavery people. First in time and importance comes the case of Shadrach, which occurred in Boston in February, 1851.
In May, 1850, a slave named Frederic Wilkins had run away from Virginia and come to Boston, where he found employment as a waiter in the Cornhill Coffee House under the alias of Shadrach. He had been there not quite a year, however, when John De Bere, his master in Norfolk, sent some one in pursuit of him. A warrant was served and he was arrested while at work. United States Commissioner Riley then took him to the court-house, where Mr. List, a young lawyer of antislavery sympathies, offered his aid as counsel, and Messrs. Charles G. Davis, Samuel E. Sewall, and Ellis Gray Loring also came to his assistance. Mr. List obtained some delay in the proceedings; but since, by the act of 1843,[206] the use of State jails had been denied for fugitives, the officers were obliged to keep the prisoner in the court-room until another place of confinement could be found. By this time a large number of people had gathered about the building, and were trying to force an entrance. For a long time they were unable to enter, but at last opportunity was given as Mr. Davis opened the door to leave the court-room. In spite of all efforts on the part of the officers to close the door, a body of colored people under the lead of Lewis Hayden rushed in and seized the prisoner. They carried him triumphantly out of the court-room on their shoulders, and soon saw him safely started for Canada. Mr. Davis and others were prosecuted for aiding in the rescue, but nothing was proved against them. Intense excitement prevailed in the city, and finally throughout the country, since Congress took up this infringement of the law.[207]
Mr. Clay, February 17, 1851, introduced a resolution which requested the President to send to Congress "any information he may possess in regard to the alleged recent case of a forcible resistance to the execution of the laws of the United States in the city of Boston," and communicate to Congress "what means he has adopted to meet the occurrence," and "whether, in his opinion, any additional legislation is necessary to meet the exigencies of the case."[208] President Pierce then issued a proclamation announcing the facts to the country, and calling on all people to assist in quelling this and other disturbances. The Senate's request was also answered in an Executive message to Congress, which announced to them that the President would use all his constitutional powers to insure the execution of the laws. Such unusual national interference gave the case wide celebrity, and, as Von Holst says, "The pretensions and assumptions of the South were encouraged in a very unwise way, by the fact that, by such a manner of treating the matter, people seemed to recognize that it was entitled to hold the whole North responsible for every violation of the compromise, which could properly be laid at the door of only a few individuals. The proclamation and the message placed the compromise in a far more glaring light than the liberation of Shadrach."[209]
Rescues.
§ 58. Jerry McHenry rescue (1851).—Later, a case occurred at Syracuse, New York, which was a significant illustration of the successful action of a vigilance committee. Jerry McHenry, a respectable colored man who had lived for several years in that city, was arrested in October, 1851, as a fugitive slave. At the examination, which took place at two o'clock in the afternoon, he found opportunity to break away from the officers and escape through the crowd, which opened to allow him to pass. He was, however, immediately pursued and recaptured. It so happened that an Agricultural Fair and a convention of the Liberty Party were going on at that time in Syracuse, and the city was unusually full of people. When the alarm bell gave notice to the vigilance committee that a negro had been seized, Mr. Gerrit Smith, who was attending the meetings, and Rev. Samuel J. May, with others, hastened to the scene. The Commissioner, after the capture, had again taken up the trial, but such a disturbance was made by the crowd which gathered outside that he was forced to adjourn. Meanwhile, Mr. Smith with the committee had planned a rescue, and at about half-past eight fully two thousand people had assembled, and an assault was begun upon the court-house. They broke doors and windows, overpowered the officers, and at last bore Jerry away in triumph.
He remained in the home of a friend until he could be sent to Canada. Prosecutions were immediately instituted, and eighteen persons indicted for taking part in the rescue, but nothing came of the case. On the other side, Henry W. Allen, Marshal in the case, was tried for kidnapping. The judge declared the Fugitive Slave Act unconstitutional, but a verdict of not guilty was rendered.[210]
§ 59. Oberlin-Wellington rescue (1858).—Sometimes, however, general sentiment was so strong that the rescue became, not an action instigated and carried through by three or four determined men, but the indignant uprising of a whole town. Such was the Oberlin-Wellington case, celebrated for the great number of prosecutions and the high character of those engaged in it. Two kidnappers from Kentucky induced an Oberlin boy, by a bribe of twenty dollars, to entice away a negro named John Rice on pretence of giving him work. Having taken him to a lonely spot, he was seized and carried about eight miles across country to Wellington, there to await the south bound train.
On the way the party was overtaken by an Oberlin College student, who at once gave the alarm. A crowd gathered and followed the kidnappers to the railway station. There, by placing a ladder upon the balcony they succeeded in rescuing John from the upper story of the house in which he was confined. For this violation of the law thirty-seven citizens of Oberlin and Wellington were indicted. This produced the greatest excitement all over the country, and the case grew more and more complicated, until the proceedings had lasted several months. Public meetings to express sympathy with the prosecuted were held in many places. Some of them were imprisoned to await the trial, but no severe sentences were imposed.[211]
Castner Hanway. John Brown.
§ 60. Christiana case (1851).—Occasionally the rescue of fugitives was not accomplished by a sudden unorganized movement, but by a deliberate armed defence on the part of the slaves and their friends. In the Christiana case the affair was marked by violence and bloodshed, while the fact that the Quakers Castner Hanway and Elijah Lewis were afterward prosecuted made it notorious; and the further fact that the charge was not, as usual, that of aiding a fugitive, but of treason, gave it still greater interest.
In and about Christiana, Pennsylvania, there were many negroes who had formerly been slaves, descriptions of whom were frequently furnished to kidnappers by a band of men known throughout the country as the "Gap Gang." A league for mutual protection had therefore been formed by the colored people, and prominent among them for intelligence and boldness was William Parker. Soon after the passage of the law of 1850, Edward Gorsuch and a party came from Maryland to Christiana for a fugitive slave. With United States officers from Philadelphia they went immediately to the house of William Parker, where the man they were seeking was sheltered. When their demand was refused, they fired two shots at the house. This roused the people, and a riot ensued in which the fugitive escaped. Mr. Gorsuch was killed, his son desperately wounded, and the rest put to flight. Castner Hanway at the beginning of the struggle was notified of the kidnappers' presence, and, though feeble in health, hastened to the scene. When ordered by Marshal Kline to aid him in accordance with the law, he refused; yet, far from leading in the affair, he tried in every way to prevent bloodshed and bring about peace.
After it was over, Parker, with two other colored men, knowing that arrest must follow, secreted themselves under piles of shavings in an old carpenter's shop. At night they sent four wagons in different directions as decoys for the detectives, and were carried safely away by a fifth. Many negroes hid that night in the corn shocks, and under the floors of houses, until escape could be made in safety.[212]
Castner Hanway was arrested, and arraigned before the United States court on the charge of treason; but no proof of a conspiracy to make a general and public resistance to the law could be found, and he was acquitted. Afterward it was desired to try Hanway and Lewis for "riot and murder," but the grand jury ignored the bill, and all prisoners were released. With these prosecutions the end of the affair was apparently reached, though perhaps its influence may be traced in a succeeding case.
§ 61. Miller case (1851).—A noted kidnapper from Maryland, in 1851, seized a free negro girl living at the house of Mr. Miller, in Nottingham, Pennsylvania, and took her to Baltimore. Mr. Miller followed them, and succeeded in getting her freed. He then started back, but never reached home. Search was made, and his body found upon the way. It was thought that the murder was committed in revenge for the part he had taken in the Christiana riot.[213]
§ 62. John Brown in Kansas (1858).—It was during this period also that John Brown was endeavoring to put into execution his famous plan for freeing the slaves. This is interesting, not only as typical of organized efforts to free the slaves on the plantations, but also because of its connection with other phases of the slavery question, into which we shall not attempt to enter here. His idea was first to gather as large a force as possible, then, when his men were properly drilled, to run off the slaves in large numbers; to retain the brave and strong in the mountains, and to send the weak and timid to the North by the "Underground Railroad."[214]
In December, 1858, Brown divided his forces into two divisions, and went into Missouri. Here he succeeded in freeing eleven slaves, and, though pursued by a far superior number of Missourians, took them safely into Kansas. The affair, by its boldness, created great excitement throughout the South. The Governor of Missouri offered three thousand dollars reward, and the President of the United States two hundred and fifty dollars, for Brown's capture; within a very short time he had succeeded in conveying himself and his eleven fugitives safely into Canada, and the horses which he had appropriated from the slaveholders in order to carry his protegés out of Kansas were afterward publicly sold by him in Ohio.[215]
CHAPTER IV. FUGITIVES AND THEIR FRIENDS.
§ 63. [Methods of escape.]
§ 64. [Reasons for escape.]
§ 65. [Conditions of slave life.]
§ 66. [Escapes to the woods.]
§ 67. [Escapes to the North.]
§ 68. [Use of protection papers.]
§ 69. [Fugitives disguised as whites: Craft case.]
§ 70. [Underground Railroad.]
§ 71. [Rise and growth of the system.]
§ 72. [Methods pursued.]
§ 73. [Colored agents of the Underground Railroad.]
§ 74. [Prosecutions of agents.]
§ 75. [Formal organization.]
§ 76. [General effect of escapes.]
§ 63. Methods of escape.—The great increase in the number of fugitives after 1850 was in part due to the uneasiness felt by Northern people under a law which made them co-workers with the South in a system of slave hunting, and in part to the greater ease of communication now afforded between the two sections. The knowledge that there was in the North a body of "abolitionists" eager to aid them from bondage to freedom was also spreading more widely each day among the slaves.
Public interest in the subject was more and more aroused, not only by the cases of cruelty and injustice which were forcibly brought to the attention of Northern communities, but also by the romantic and thrilling episodes of the escapes. To understand the attitude of the North toward fugitives, it is necessary to examine some of the different methods used by the fugitives in their flight. Perhaps a better point of view than that of the outside observer will be gained by placing ourselves in the position of the slave, and examining his motives for flight, the difficulties which he encountered at home, the manner in which he overcame them, and, finally, the various paths of escape then open to him, and the agencies which befriended him and forwarded him on his way.
Reasons for Escape.
§ 64. Reasons for escape.—First, why did the slave seek to escape? However unlike the attending circumstances, we find upon investigation that the negro's desire to run away may be traced to one of but three or four motives. Among the more intelligent slaves, who could comprehend the nature and injustice of their position, it often rose solely from the upspringing in their hearts of that love of freedom natural to all men. It is probable that in the greater number of cases this was the motive at the root of the matter. A fugitive, on being questioned at an Underground Railroad station as to his reasons for escape, replied that he had had a kind master, plenty to eat and to wear, but that notwithstanding this for many years he had been dissatisfied. He was thirsting for freedom.[216] Another said that his owner had always been considerate, and even indulgent to him. He left for no other reason than simply to gain his liberty.[217]
A second reason, and that which perhaps most frequently led them to take the decisive step in this often long premeditated act, was the cruel treatment received from their masters. An owner upon one of the Southern plantations said his slaves usually ran away after they had been whipped, or something had occurred to make them angry.[218]
A third and very effective cause was the fear of being sold South, where slave life, spent in toil under the merciless masters of the rice swamps and cotton fields, was seen on its darkest side. Such was the horror with which the slave regarded this change, that the threat of it was constantly used by owners as one of the surest means of reducing their rebellious slaves to submission. In the Virginia Slave Mother's Farewell to her Daughters who have been sold into Southern bondage, Whittier has well expressed their feelings.[219]
Many cases of this kind came to light through the examinations at the Underground Railroad stations. Three brothers once learned that the next day they were to be sent South with a slave trader then in the vicinity. Filled with terror at the prospect, they preferred the danger of death in the swamps to the certainty of life in the unknown country. That night they made their escape, but it was only after weeks of wandering in swamps and morasses that they reached a haven.[220]
So long as a black family remained together upon one plantation, their love for one another operated as the strongest bond to prevent their departure; but when, as constantly happened, the sale and separation of the members scattered families far and wide, with no hope of reunion, the firmest and often the sole tie which bound them to the South was broken. There was no longer anything to hold them back.[221]
§ 65. Conditions of slave life.—These are some of the motives which led the slave to plan an escape. It will now be well to glance at those surrounding conditions, incident to the time and country, which made successful flight particularly difficult. First, the slave was a negro; and in the South, where the presumption was that every black man must be a slave, the color of his skin gave not only a means of tracing him, but also made him liable at any moment to questioning and arrest.
In both city and country patrols were appointed, whose duty it was to keep strict watch over the negroes; and any slave found away from his plantation, unless in livery or provided with a pass, could be whipped and sent back to his master.[222] It was also lawful for any white man to seize and carry a stray slave to the nearest jail.[223] The next morning, if not claimed, he was advertised in a manner of which the following is an example:—
"Was taken up and committed to the jail of Halifax Co., on the 26th day of May, a dark colored boy who says his name is Jordan Artis; said boy says he was born free, and bound out to Mr. Beale, near Murfreesboro, Hartford Co., N. C., and is now twenty-one years of age. Owner is requested to come forward, prove property, pay charges, and take said boy away within time prescribed by law, otherwise he will be dealt with as the law directs.
"O. P. Shell, Jailer.
"Halifax Co., N. C., June 8, 1855."[224]
If not claimed within one year, such a prisoner could be sold by the jailer. Thus Olmsted remarks that "the security of the whites is not so much dependent upon patrols, as on the constant, habitual, and instinctive surveillance and authority of all white people over the blacks."[225]
§ 66. Escapes to the woods.—If an opportunity for escape should present itself, the first question for the slave was, "In what direction shall I turn?" Many slaves knew nothing of the Northern people, or had heard of Canada only as a cold, barren, uninviting country, where the negro must perish. To those who had neither the courage nor the knowledge requisite for a long journey, the woods and swamps near by offered the only refuge. There they built cabins, or lived in caves, and got food by hunting and fishing, and by raids upon the neighboring plantations.
In one of the papers of the day an underground den is noticed, the opening of which, though in sight of two or three houses, and near roads and fields, where passing was constant, had been so concealed by a pile of straw, that for many months it had remained unnoticed. When discovered, on opening a trap-door, steps were seen leading down into a room about six feet square, comfortably ceiled with boards, and containing a fire-place. The den was well stocked with food by the occupants, who had been missing about a year.[226]
In most cases slaves were not so bold, and preferred concealment on an uninhabited island, or a bit of land surrounded by morasses. We often find advertisements of the time, mentioning such places as the probable refuge of runaways. The Savannah Georgian of 1839 offers a reward for two men who have been out for eighteen months, and are supposed to be encamped in a swamp near Pine Grove Plantation.
In the Great Dismal Swamp, which extends from near Norfolk, Virginia, into North Carolina, a large colony of these fugitive negroes was established, and so long was the custom continued that children were born, grew up, and lived their whole lives in its dark recesses. Besides their hunting and fishing, they sometimes obtained food and money, in return for work, from the poor whites and the negroes who had homes on the borders of the swamp. It was this practice of remaining out near home which, under easy masters, brought about the habitual runaways,—men who were constantly escaping, and after a little time returning, often of their own accord.[227] One of his masters said of William Browne, afterward a well known speaker upon slavery, that he hesitated some time before he invested seven hundred dollars in William, for he was "a noted runaway."[228] Again, in a Southern paper advertising a sale of slaves, one description is thus given: "Number 47, Daniel, a runaway, but has not run away during the last two years, aged 28 years."[229]
Escapes to the North.
§ 67. Escapes to the North.—Of those who, with heroic hearts and firm courage, determined to reach even Canada, many had seldom left the plantation on which they were born, and were so completely ignorant of geography and relative distances, that the best and quickest way northward could seldom be chosen. They knew nothing of the facilities for communication possessed by their masters through newspapers and telegraph, and would often fancy themselves safe when they had travelled but a short distance from home. In reality, the white people about were often fully informed against them, and arrests were almost sure to follow.[230]
The journeys of the fugitives were necessarily long, since unfrequented ways were generally chosen, and but part of the day could be used. There is a record of a man who had "taken a whole year in coming from Alabama to Cincinnati. He had travelled only in the night, hiding in the woods during the day. He had nothing to eat but what he could get from the fields, sometimes finding a chicken, green corn, or perhaps a small pig."[231]
Although the methods pursued were innumerable, and varied from those of the man whose only guide was the north star, to those of the party aided onward by the most elaborate arrangements of the Underground Railroad, the fugitive was obliged to follow one of two great routes, by water or by land. From the earliest times the ship had been a favorite refuge. Once on board a craft bound to a Northern port, the fugitive was almost certain of reaching that destination, and, once arrived, could hope for protection from the Northern friends of whom vague rumors had penetrated the South. New laws, therefore, bore more and more heavily upon captains who should be found guilty of harboring a slave, and many cases were made public of cruel treatment experienced by slaves at the hands of captains who sent them directly back. Nevertheless, escapes on shipboard still occurred frequently through the years of slavery. A method commonly used by women in getting on board was to disarm suspicion by appearing to be carrying some freshly laundered clothes to the sailors.
§ 68. Use of protection papers.—Another method called for less physical effort on the part of the fugitive, but for greater coolness. It was simply to procure from some freeman his protection papers, and to show them whenever necessary to disarm suspicion. As the descriptions could seldom be made to agree, both giver and receiver were placed in situations of the greatest risk. It was thus, however, that Frederick Douglass travelled in the most open manner from Baltimore to New York, and escaped from a bondage to which he never afterward returned.[232]
Fugitives disguised as Whites.
§ 69. Fugitives disguised as whites: Craft case.—Sometimes the boldest plans succeeded best if supported by sufficient firmness and presence of mind. Three negroes possessed of a considerable sum of money once determined upon a plan, startling in its simplicity and success. They hired a good travelling coach and horses. They then bribed a white beggar to dress as a Virginian gentleman, while they mounted the coach as his driver and footmen; and in this guise they successfully made their way into Canada.[233]
Another example of unconcealed flight is found in the often told story of the escape of William and Ellen Craft, in 1848. They lived in Macon, Georgia, and were generally well treated. But Ellen had been compelled to go North with her mistress, and leave her little child at home; during this absence, the child died uncared for. From that time she determined to escape.[234]
William at last arranged a plan which was successfully carried out. Ellen was nearly white. She personated a young Southern planter, while William accompanied her as her servant. She carried her right arm in a sling so that she might not be expected to write, bandaged her smooth face, and put on a pair of green goggles. Thus disguised, she succeeded in buying tickets for herself and servant without discovery. In the train she was terrified to see a gentleman who had known her from childhood. He even sat down by her, and spoke, but to her great relief, he saw in her only a young invalid going North for his health. From Savannah they took a steamer to Charleston. There they had some difficulty in passing inspection, but their most dangerous stopping place was Baltimore, where every white man with a slave was required to prove his right of property before he could be allowed to go on to Philadelphia. After some conversation Ellen told the officer that she knew no one in Baltimore, and had no proofs that William was her slave; but that he was necessary to her on account of her illness, and she must take him on. The officer finally relented, as the train was about to start, and Baltimore was safely passed.
At Philadelphia shelter was found among the Quakers, and thence they pushed on to Boston. Here they engaged the attention of Theodore Parker, and he protected them during their stay. William took up his trade of cabinet-making, while Ellen added to their income by sewing. They lived thus quietly until the passage of the Fugitive Slave Law in 1850. From that time, to remain even in Boston was hazardous. Soon after, there appeared one day in William's shop a man who had worked with him in the South. He immediately suspected the presence of others, and took refuge among friends. For two weeks Ellen was with Mr. Parker, who wrote his sermons during her stay with his sword in a drawer under his inkstand, and a pistol in his desk.
They were then taken to Mr. Ellis Gray Loring's home. Here William showed a most honorable spirit. When he found Mr. Loring was not at home he would not remain, saying, "I am subjecting him to a heavy fine and imprisonment, and I must go at once to look for some other shelter."
His pursuers, who had come from Georgia, were staying at the United States Hotel. The knowledge of their object was soon spread abroad, and they dared not go into the streets for fear of a mob. Handbills, calling attention to them, were placed everywhere, and cries of "Slave hunters! there go the slave hunters!" were heard on all sides. At last, they were absolutely compelled to leave the city. William and Ellen no longer felt safe, and therefore went to England, where the remainder of their life was spent in peace.[235]
The Underground Railroad.
§ 70. Underground Railroad.—From the preceding sketch of the conditions of escape, it is plain that no such numbers as are known to have fled could possibly have escaped from their masters' power had they depended solely upon their own exertions. From the beginning of the antislavery agitation, about 1830, and especially near 1850, a mysterious organization made it a business to receive, forward, conceal, and protect fugitives. To that organization the name of "Underground Railroad" was given, and the many methods used by those connected with it can best be given under a more elaborate description of the system.
§ 71. Rise and growth of the system.—The first efforts toward any systematic organization for the aid and protection of fugitive slaves are found among the Quakers in Pennsylvania. The great number of cases of kidnapping which occurred in this State after the passage of the law of 1793, by their injustice roused people to action in behalf of the free blacks; and, their sympathies once enlisted for the colored race, it was but a step to the aid of the fugitive negroes.[236] From this time, as the number of runaways increased, new agencies were constantly being established, until from the slave States to Canada a perfect chain of stations was arranged, not more than one day's journey apart.[237] The system is said to have extended from Kentucky and Virginia across Ohio, and from Maryland, through Pennsylvania and New York, to New England and Canada.[238]
As negroes began to disappear, and their masters found themselves unable to trace them farther than certain towns in Pennsylvania, they said, in bewilderment, "There must be an Underground Railroad somewhere," and this expression, suiting the popular fancy, became the general name by which the whole system was known.[239]
Operations "Underground."
§ 72. Methods pursued.—Although often varied by circumstances, the general method of work was always the same. In the South, money was usually the motive, and for its sake the managers of the Railroad could usually get some one to aid a slave in escaping and crossing the line. In the North it was an unselfish, and sometimes dangerous, work of charity.
Fugitives arrived at the first station, ignorant, half-clothed, and hungry. There they were fed, and, in order to elude the advertisements sent through the States, disguises were provided. For women, the large veiled bonnet and plain attire of the Quakeress proved one of the best costumes. The men received a slip of paper, with a word or two which would be recognized at the next place, and, unless special caution was needed, were sent forward on foot. Women and children were often taken in close carriages, sometimes constructed for this special purpose.[240]
Stations, that is, the houses of persons known to be interested, were reached between sunset and ten o'clock in the evening. A tap at the door would rouse some member of the family, and the fugitive would be taken to the barn, or some place of concealment.[241] Often, too, these houses were not merely places for a night's tarrying, but homes where the ill and fatigued might remain and be cared for until strong enough for the onward journey.[242]
To conduct people over this long line, and to baffle all plans of their pursuers, required quick wit, as well as great courage and coolness.[243] So successful were the conductors in this respect, however, that a discouraged slave hunter, after a fruitless search, once said it was "as easy to find a needle in a haymow as a negro among Quakers."[244]
When fugitives were concealed, and persons desiring to search the house appeared, it was the custom to receive the searchers courteously. One of the family immediately engaged them in conversation, and offered them refreshments. The hunt was thus delayed as long as possible, so that the fugitive might be helped away. In one case, while the slave's master was thus entertained upon the front piazza, the mistress of the house quietly conveyed the hunted negro out at the back door, and placed him under an inverted hogshead standing by. Then, with the most unconcerned manner, she allowed the man to search until he was satisfied that there could be no fugitive in that house.[245]
§ 73. Colored agents of the Underground Railroad.—An example of the most courageous and successful action may be found in the life of Harriet Tubman,[246] who when a young girl made her escape from slavery alone and unassisted. After several years of work in the North, she determined to go back for her family. This trip was safely accomplished, and followed by others, until during her life she had made nineteen journeys, never losing a person. The Rev. James Freeman Clarke gives the following account of her methods:—
"She said she first obtained enough money, then went to Maryland, where she privately collected a party of slaves and got them ready to start. She satisfied herself that they had enough courage and firmness to run the risks. For if once a negro entered her party, there was no falling back. Fully determined herself, she would allow no one to return.
"She next made arrangements so that they should set out Saturday night, as there would be no opportunity on Sunday for advertising them, so that they had that day's start on their way North. Then she had places prepared where she could be sure that they could be protected and taken care of, if she had the money to pay for that protection. When she was at the North, she tried to raise funds until she got a certain amount, and then went South to carry out this plan. She always paid some colored man to follow after the person who put up the posters advertising the runaway, and pull them down as fast as they were put up."[247]
When she feared the party were closely pursued, she would take them for a time on a train southward bound, as no one seeing a company of negroes going in this direction would for an instant suppose them to be fugitives. As their leader out of bondage, her people gave her the name of "Moses," and thus she is generally known.
§ 74. Prosecutions of agents.—Such acts as those daily performed by the conductors on the Underground Railroad could not be carried on under the existing laws without leading to prosecutions. Large rewards were many times offered for Harriet's capture, but she eluded all efforts to stop her work. At one time the Maryland legislature offered a reward to any person who should secure Thomas Garrett in any public jail in the State. He was a Delaware Quaker, who, it is said, helped twenty-nine hundred slaves in escaping. The Governor was required to employ the best legal skill to prosecute him on the charge of aiding runaways.[248] He was afterward tried and fined a sum which consumed his entire property. As this was paid, the officer who received it said that he hoped the remembrance of this punishment would prevent any further trouble. Mr. Garrett, undaunted, replied that they had taken all that he possessed, but added, "If thee knows any poor fugitive who wants a breakfast, send him to me."[249] In fact, he seemed absolutely fearless. Angry slaveholders often called upon him, and demanded their property. He never denied knowledge of their slaves, or of having helped them on their way, but, in the most quiet manner, positively refused to give information concerning them.[250]
§ 75. Formal organization.—In 1838 the first formal organization of the Underground Railroad was made, with Robert Purvis as President. It was said that two marketwomen in Baltimore were their best helpers. They had come into possession of a number of passports, or "freedoms," which were used by slaves for part of the distance, and then were returned to serve the same purpose again.[251]
In all transactions connected with this organization the greatest secrecy was necessarily observed, seldom more than two or three persons at a station being allowed any knowledge of it. In the Liberator of 1843, a notice is found cautioning people against exposing in any way the methods used by fugitives in escaping, as it only helped the pursuers in the next case. The fugitives themselves were usually careful in this respect. Frederick Douglass absolutely refused until after the abolition of slavery to reveal the method of his escape.[252]
Mrs. G. S. Hillard, of Boston, was in the habit of putting fugitives in an upper room of her house. A colored man was placed there, and when Mrs. Hillard went up to see him, she found he had carefully pulled down all the shades at the windows. She told him that there was no danger of his being seen from the street. "Perhaps not, Missis," he replied, "but I do not want to spoil the place." He was afraid lest some one might see a colored face there, and so excite suspicions injurious to the next man.[253]
§ 76. General effect of escapes.—Although many fugitives were aided previous to 1850, it was after the new law went into effect that the great efforts of the Abolitionists were centred on this form of assistance. Of such importance did it become, that at the beginning of the Civil War one of the chief complaints of the Southern States was the injury received through the aid given their escaping slaves by the North.[254]
It was, however, really the "safety valve to the institution of slavery. As soon as leaders arose among the slaves who refused to endure the yoke, they would go North. Had they remained, there must have been enacted at the South the direful scenes of San Domingo."[255]
CHAPTER V. PERSONAL LIBERTY LAWS.
§ 77. [Character of the personal liberty laws.]
§ 78. [Acts passed before the Prigg decision (1793-1842).]
§ 79. [Acts passed between the Prigg decision and the second Fugitive Slave Law (1842-1850).]
§ 80. [Acts occasioned by the law of 1850 (1850-1860).]
§ 81. [Massachusetts acts.]
§ 82. [Review of the acts by States.]
§ 83. [Effect of the personal liberty laws.]
§ 77. Character of the personal liberty laws.—The personal liberty laws were statutes passed in the Northern States whose object was to defeat in some measure the national Fugitive Slave Law. Often their ostensible purpose was to protect the free negroes from kidnappers, and to this end they secured for the alleged fugitive the privilege of the writ of habeas corpus, and the trial by jury. Sometimes, however, they frankly avowed their aim as a deliberate attempt to interfere with the execution of the United States statutes. In the following examination of these laws, they will be considered first chronologically, and afterward more minutely according to their subject matter. In previous chapters we have noticed many instances wherein fugitives have been befriended by individuals, or by organizations like the Antislavery Societies or the Underground Railroad. But the action of the State governments in the personal liberty bills, from the time the Fugitive Slave Act of 1793 began to be executed to the outbreak of the Civil War, showed that the dissatisfaction of the North was fundamental, and was not confined merely to the few in the van of the Antislavery movement.
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.
Review of the Acts by States.
§ 82. Review of the acts by States.—Of the other New England States, Maine had no personal liberty law until 1855.[284] Two years after, however, in 1857,[285] a portion of an act declaring free all slaves brought by their masters into that State was devoted to a provision "to punish any attempt to exercise authority over them."
In New Hampshire, one of the laws of 1857[286] enacted that every person holding any person as a slave for any length of time, under any pretence, should be deemed guilty of felony; but provided that this should not apply to United States officers executing any legal process.
Vermont, by an act in 1840,[287] extended to fugitives the right of trial by jury, but after three years this was repealed,[288] only to be renewed in 1850.[289]
Connecticut, as has been noticed, had no personal liberty law. Rhode Island first passed such an act in 1848.[290] This forbade State officers to take cognizance of fugitive slave cases, and the use of State jails. Another statute, in 1854,[291] extended these provisions so as to apply to the national law of 1850.
The act of 1840 was the only Personal Liberty Law of New York.[292] Pennsylvania, some seven years later, forbade the use of jails, and punished State officers for participating in fugitive slave cases.[293] It also enacted a regulation of the same character as late as 1860.
Ohio made but one provision on the subject, and that lasted but a year. Her jails were closed to suspected slaves in 1857,[294] but in 1858 this law was repealed.[295]
Michigan passed such an act in 1855,[296] with the usual clauses on the use of jails and jury trial, and imposed a fine on false testimony against the defendant.
In 1858 Wisconsin and Kansas also passed similar acts.[297]
§ 83. Effect of the personal liberty laws.—Since the avowed purpose of these laws was to obstruct the execution of one of the United States statutes, national and State legislation were thus brought into direct conflict; but the Fugitive Slave Law was held constitutional by the Supreme Court, and any attempt to prevent its enforcement by positive means, however righteous from an ethical standpoint, must be considered an infraction of the Constitution, and of the common understanding between the States, on which the Union was founded.[298] The provisions denying the use of State institutions and officers, though distinctly unfriendly, were not unconstitutional. Many of the Abolitionists, however, held the national law to be unconstitutional, and at the same time morally so repugnant that it ought never to be executed.[299] The State laws were brought up by South Carolina, in her declaration of the causes of secession, as one of the chief grievances against the North; and President Buchanan, in his Message of 1860,[300] said they were "the most palpable violations of constitutional duty which had yet been committed." They must certainly be classed in principle with the Nullification Ordinance of 1832. Indeed, the legislature of Wisconsin, after the Supreme Court had overridden the decision of the State courts in the case of Ableman v. Booth that the national law was contrary to the national Constitution, passed some resolutions in which a "positive defiance is urged as the 'rightful remedy'" against such legislation.[301]
CHAPTER VI. THE END OF THE FUGITIVE SLAVE QUESTION (1860-1865).
§ 85. [The Fugitive Slave Law in the crisis of 1860-61.]
§ 86. [Propositions to enforce the Fugitive Slave Law.]
§ 87. [Propositions to repeal or amend the law.]
§ 88. [The question of slaves of rebels.]
§ 89. [Slavery attacked in Congress.]
§ 90. [Confiscation bills.]
§ 91. [Confiscation provisions extended.]
§ 92. [Effect of the Emancipation Proclamation (1863).]
§ 93. [Fugitives in loyal slave States.]
§ 94. [Typical cases.]
§ 95. [Question discussed in Congress.]
§ 96. [Arrests by civil officers.]
§ 97. [Denial of the use of jails in the District of Columbia.]
§ 98. [Abolition of slavery in the District of Columbia.]
§ 99. [Regulations against kidnapping.]
§ 100. [Repeal of the Fugitive Slave Acts.]
§ 101. [Early propositions to repeal the acts.]
§ 102. [Discussion of the repeal bill in the House.]
§ 103. [Repeal bills in the Senate.]
§ 104. [The repeal act and the thirteenth amendment.]
§ 105. [Educating effect of the controversy.]
§ 85. The Fugitive Slave Law in the crisis of 1860-61.—If the number of interesting fugitive slave cases falls off in the latter part of the decade from 1850 to 1860, it is not because the law was better enforced, but because it was little enforced. The continued interference of the friends of the slave had proved that a fugitive could not safely be recovered in Massachusetts, and that no punishment could be secured for those who helped him to his freedom. The personal liberty bills added serious legal obstacles. The Supreme Court of Wisconsin even went so far as to declare the national act of 1850 unconstitutional.[302] In 1859 John Brown, in his Harper's Ferry raid, attempted to establish a centre to which fugitives might flock; and although he was defeated, he had the sympathy of a large number of persons in the North, including some public men.
In the violent debates of 1860-61, one of the frequent charges brought by the southern members against the North was its persistent refusal to execute the Fugitive Slave Act, or to permit it to be executed.[303] Even Republican members disclaimed responsibility for their party, and urged that the personal liberty bills should be repealed.[304] Other bolder spirits seized the opportunity to urge a repeal of the act, and in the various compromise propositions introduced were several attempts to modify the existing constitutional provision on the subject.
Enforcement. Slaves of Disloyal Men.
§ 86. Propositions to enforce the Fugitive Slave Law.—In the crisis of 1860 the South seemed to expect a general settlement of the slavery question like that of 1850, and therefore demanded a more effective act for the return of fugitives. President Buchanan, in his message of December 4, 1860, recommended "explanatory" constitutional amendments which should recognize the master's right to the recovery of his fugitive slaves, and the validity of the Fugitive Slave Law. He recommended also a declaration against State laws impairing the right of the master, as being violations of the Constitution, and consequently null and void.[305] This recommendation was followed, December 12, 1860, by no less than eleven resolutions upon the subject in the House.[306] Of these five were constitutional amendments. Several provided, as a pacific measure, that the town, county, or State, guilty of neglect to return a fugitive, might be sued by the owner of the slave for the amount thus lost to him.[307] The most arbitrary proposition was that of Mr. Hindman. It denied representation in Congress to any State which should hold in force laws hindering the delivery of fugitives.[308]
Another resolution inquired into the expediency of declaring it felony to resist an officer of the United States in the execution of the law, or to attempt to rescue a runaway.[309]
§ 87. Propositions to repeal or amend the law.—On the other hand, antislavery members insisted that the provision for the return of fugitives was already too severe; but only one of the resolutions proposed any amendment in favor of the slave. Mr. Kilgore proposed to give a trial by jury before a fugitive should be returned.[310]
As early as 1860 Mr. Blake had introduced into the House a bill to repeal the law of 1850. It was read twice, and referred to the Committee on the Judiciary, from whom it was never reported.[311] At that time Congress, in alarm at the state of the country, was vainly striving to mend matters by making the Fugitive Slave Law even more effective. March 1, 1861, the select committee of thirty-three brought in a bill for the amendment of the law of 1850; it allowed an appeal to the Circuit Court of the United States where jury trial was to be given. The bill passed the House the same day; but in the Senate it never got beyond the first reading.[312]
§ 88. The question of slaves of rebels.—With the beginning of the Civil War in 1861 the last period in the study of fugitive slaves opens, to close only with the repeal of the Fugitive Slave Law and the abolition of slavery.
New conditions now surrounded the slaves. Their masters were away in the army; many homes were broken up, and confusion reigned instead of law; the strict discipline and oversight necessary for the maintenance of the slave system was impossible. Opportunities for escape occurred everywhere and at all times. Since war had brought the Northern people down into their own land, the slave no longer needed to travel hundreds of miles to find friends; the Northern camps were perhaps but a few miles from his own plantation. In this way negroes began to gather around the Federal camps in such numbers that the question of disposing of them became serious. If the Fugitive Slave Law of 1850 were considered as still binding, their apprehension and return were necessary; but many of the masters were in arms against the government; should they still be protected in their property? The belligerent position of the South seemed to preclude any right on the part of disloyal owners to ask for the benefit of the law.
To meet the changed conditions no policy had as yet been developed by the government. The first solution of the problem was made at Fortress Monroe by General Butler. He drew an analogy from international law, which makes material of war imported into the country of a belligerent lawful prize to the army or navy of the other belligerent. Regarded as property, the slaves of rebels could be of great service to them, and of equal help to the government in suppressing rebellion. Regarded as persons, they had escaped from communities where rebellion was in progress, and they asked protection from the government to which they were still loyal. In May, 1861, General Butler therefore replied to all demands for fugitives that he should retain them as "contraband of war." The answer was widely spread, and "contraband" became the name by which such negroes were known.[313]
§ 89. Slavery attacked in Congress.—A series of attacks upon slavery now began in Congress. To many persons the fact that the institution was recognized in the Constitution seemed sufficient ground for protecting it. No doubt was entertained of the power of Congress to confiscate the ordinary property of rebels; but such persons deprecated all interference with slaves, who were supposed to possess a kind of constitutional immunity, wholly unknown to and above all other property.[314] In the minds of antislavery men, "no greater fallacy was ever asserted than this attempt thus to link 'the institution' and the Constitution indissolubly together, to engraft the former upon the latter, to make slavery the corner stone of the nation, to be guarded and protected by the government."[315] Nevertheless, the existence of slavery in the Border States which had remained loyal made Congress very cautious as to general enactments. On the other hand, no form of property held by rebels was so vulnerable; slaves could not only be seized as the lines of the Northern troops extended, they could, by actual law or by kindly reception, be invited across the lines. Both the passions aroused by civil war and a humane pity for the slave urged the government to deprive the master engaged in secession of the services of his slave.
Confiscation Bills.
§ 90. Confiscation bills.—July 18, 1861, Mr. Chandler and Mr. Trumbull introduced general confiscation bills in the Senate; they were both referred to the Committee on the Judiciary. In the discussion Mr. Trumbull offered as an amendment "that whenever any person claiming to be entitled to the service or labor of any other person, under the laws of any State, shall employ such person in aiding or promoting any insurrection, or in resisting the laws of the United States, or shall permit or suffer him to be so employed, he shall forfeit all right to such service or labor, and the person whose service or labor is thus claimed shall be thenceforth discharged therefrom, any law to the contrary notwithstanding."[316]
The proposition aroused considerable opposition, since it was a step far in advance of anything which had yet been done against the interests of slavery, and any proposition which advocated "an act of emancipation," however limited and qualified, was the signal for hot discussion. The opposing party announced that "nothing will come of it but more irritation,"[317] and in each crisis statesmen should "observe all possible toleration, all conciliation, all liberality."[318] Mr. Wilson upheld the opposite opinion, and thought that the time had come when this government, and the men who are in arms under the government, should cease to return their fugitive slaves to traitors.
The bill passed the Senate July 22, 1861. In the House it was amended so as to limit the negroes to be freed more strictly to those employed in military service.[319] The bill went back to the Senate, which concurred in the amendment,[320] and it received the signature of the President, August 6, 1861.[321]
The Emancipation Proclamation.
§ 91. Confiscation provisions extended.—Propositions more far reaching were introduced into the Senate in the session of 1861-62.[322] January 15, 1862, Mr. Trumbull, from the Committee on the Judiciary, to whom the various propositions had been referred, reported an original bill, and asked that the committee be discharged from the consideration of others.[323] March 14, 1862, Mr. Harris introduced into the Senate a bill to confiscate the property of rebels and for other purposes.[324] These propositions were considered at length, but never came to a vote. It is not necessary to enter here into the discussion of confiscations and of the constitutional right of Congress to free the slaves; in most of the bills there was a provision against the return of slaves to disloyal masters.