Fugitive Slaves Part 3

-- 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 Const.i.tution.=--By obtaining in the Const.i.tution 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 Const.i.tution ever afterward formed a basis for the slaveholder's argument that the Const.i.tution 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 Const.i.tution, the return of negroes was expressly required.[60]

[Sidenote: The First Fugitive Slave Act.]

=-- 17. The first Fugitive Slave Act (1793).=--For some time, however, the provision of the Const.i.tution 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 Const.i.tution.

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 Ma.s.sachusetts, 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 pa.s.sed the Senate, January 18.[71] In the House it seems to have elicited little discussion, and it pa.s.sed, 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 Const.i.tution.[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 emanc.i.p.ation 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]

[Sidenote: Propositions of 1797 and 1802.]

=-- 19. Propositions of 1797 and 1802.=--Until 1850 no further law upon this subject was pa.s.sed, 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 pet.i.tioned Congress for relief, and after an exciting debate the House by a vote of 50 to 33 refused to receive the pet.i.tion.[80] There is nothing in the scanty records which connects this case or pet.i.tion 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 pet.i.tions 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 pet.i.tion 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 a.s.sisted 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 a.s.sisted, 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]

[Sidenote: 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 const.i.tutional, but on humanitarian grounds.[93] A pet.i.tion 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 Ma.s.sachusetts, who said, "that, in guaranteeing the possession of slaves, the Const.i.tution 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 Ma.s.sachusetts 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 Ma.s.sachusetts 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 const.i.tutional 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 a.s.sistance 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 pa.s.sed by a vote of 84 to 69.[103] It was ordered that the t.i.tle 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]

[Sidenote: 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 pa.s.sage 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 a.s.sembly 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 Const.i.tution, 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 Ma.s.sachusetts.

[Sidenote: 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 a.s.sembly 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 Const.i.tution 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 pa.s.s. 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]