Fugitive Slaves Part 4

=-- 24. Status of fugitives on the high seas.=--When in 1830 gradual emanc.i.p.ation 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 a.s.sume no responsibility in cases arising since the abolition of slavery.[137]

Elaborate resolutions introduced by Calhoun, March 4, 1840, and pa.s.sed, 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 s.h.i.+p Creole rose and by force carried her into Na.s.sau,[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]

[Sidenote: 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 a.s.sistance 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 unconst.i.tutional, 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, pa.s.sed 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 inst.i.tution.

=-- 27. Action of Congress from 1847 to 1850.=--From 1822 until 1848 apparently no effort was made to secure a new law. Then a pet.i.tion received in 1847 from the Legislature of Kentucky, urging the importance of pa.s.sing 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 Const.i.tution."[151] It pa.s.sed 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.

[Sidenote: 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 pa.s.sed 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 ident.i.ty 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.

[Sidenote: Arguments for the Bill.]

=-- 31. Arguments for the bill.=--The debate on the Fugitive Slave Bill more than any other part of the Compromise ill.u.s.trates 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 ill.u.s.tration 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution, and which contains the bond of union and the security of harmony; and in the name of Was.h.i.+ngton, 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. Soule 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 a.s.surance, it will satisfy the public mind that the Government is disposed, is truly anxious, to accomplish the rest.i.tution 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]

[Sidenote: 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 cla.s.s 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 Const.i.tution 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.'"

[Footnote 59: Statutes at Large, I. 50.]

[Footnote 60: Appendix B, No. 8.]

[Footnote 61: Cong. Globe, 31 Cong. 1 Sess., Appendix, 1585; Annals of Cong., 2 Cong. 1 Sess., H. of R., 147.]

[Footnote 62: State Papers, Miscellaneous, I. 39-43.]

[Footnote 63: House Journal, 2 Cong. 1 Sess., 444; Annals of Cong., 148.]

[Footnote 64: House Journal, 2 Cong. 1 Sess., 454; Annals of Cong., 179.]

[Footnote 65: Senate Journal, 170; Annals, 115.]

[Footnote 66: 2 Cong. 2 Sess., Senate Journal, 460; Annals of Cong., 616.]

[Footnote 67: Senate Journal, 16; Annals, 622.]

[Footnote 68: Senate Journal, 25, 26; Annals, 623.]

[Footnote 69: Senate Journal, 28; Annals, 625.]

[Footnote 70: Senate Journal, 35; Annals, 630.]

[Footnote 71: Senate Journal, 34, 35; Annals, 630.]

[Footnote 72: House Journal, 105; Annals, 861.]

[Footnote 73: Appendix B, No. 9.]

[Footnote 74: Ante, -- 8; Appendix A, No. 8.]

[Footnote 75: Ante, -- 15.]

[Footnote 76: For general discussions of the act, see Von Holst, Const.i.tutional History, I. 309-315; Hildreth, History of the U. S., IV.

406-440; Lalor's Cyclopaedia, II. 315-316; Stephens, War between the States, I. 629-636, 674; Bancroft's History of the U. S. (last revision), VI. 309, 310; Goodell, Slavery and Antislavery, 227; Curtis, History of the Const.i.tution, II. 450-467; Hurd, Law of Freedom and Bondage, II. 142; Story, Commentaries, III. 673-678; McMaster, History of the American People, I. 508, II. 356, 357; Elliott's Debates, V. 357, 487; Schouler, History of the U. S., I. 219, 220; Tucker, History of the U. S., I. 500.]

[Footnote 77: Appendix B, No. 9.]

[Footnote 78: Post, -- 27.]

[Footnote 79: Post, ---- 34, 35.]

[Footnote 80: Annals of Congress, 1796-97, p. 2015, and 1801-2, p. 343.]

[Footnote 81: House Journal, 4 Cong. 2 Sess., 65; Annals of Cong., 1741, 1767.]