Fugitive Slave Act
With each passing decade, the supreme and compelling authority of law placed the power of retrieval at the disposal of those who employed slaves. Southern congressmen surrendered California to the North in exchange for the new Fugitive Slave Act of 1850. For decades before 1850, many men and women who escaped from slavery were able to avoid being captured and returned to their owners, but the Fugitive Slave Act, part of the Compromise of 1850, empowered federal officials to assist owners seeking to reclaim runaway slaves.
The number of runaways -- perhaps a thousand per year -- seems too small relative to a total slave population reaching nearly four million by 1860 to have made much difference. But the probability that a prime age male in Delaware ran in a given year was on the order of 5 percent, 250 times larger. In his "Road to Disunion" (1990), Freehling contends that runaways were a very serious matter for slaveholders in the border slave states. Their vulnerability contributed to a retreat of the peculiar institution toward the deeper South. Slaves in the deep South had hundreds of miles to run to freedom, whereas those in the border states much shorter distances to run.
The Constitution of the United States contains the following provision: "No person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due.'' Article IV., sec 2, p 2
It is worthy of notice that the word slave does not occur either here or in any other part of the Constitution. The terms used apply as properly to indentured apprentices as to slaves. In Northern newspapers, down to 1840 and later, might be seen advertisements of runaway apprentices as conspicuously if not as often as notices of runaway slaves appeared in the Southern newspapers. That slaves were had in view in the framing of the article we know, but care was taken not to avow it. Equally noticeable is the absence of any terms even remotely suggesting the idea that the fugitive might be regarded as property. On the contrary, he is described as a pemm from whom service or labor is due.
If a person of good understanding, but without technical knowledge of law, were to read this paragraph of the Constitution, it would hardly occur that the words convey any power or impose any duty on Congress. That body is not named nor referred to. The terms used seem to imply only State action, and to define the duty that one State owes to another. Congress, however, at a very early period, assumed jurisiction over the subject.
The first fugitive act, passed in 1793, declared that whenever a person held to service, etc., shall escape into another state or Territory, the person to whom such service may be due, his agent or attorney, may seize or arrest such fugitive and take him before any judge of a court of the United States, or any magistrate of a county, city, or town, and upon proof to the satisfaction of the judge or magistrate, whether by oral testimony or sworn affidavit, that service is owed as claimed, the judge or magistrate shall give a certificate thereof to the claimant, which shall be sufficient warrant to remove the fugitive.
This act, it is plain, was framed in the sole interest of masters. It provided no safeguard for the rights of the person claimed as a slave. The Constitution guarantees (Amendment V) that "no person shall be deprived of life, liberty, or property without due process of law," i. e., of course, common law; and that (Amendment VI) in suits at common law, where the matter in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. But when a man's personal liberty is at stake, no jury-trial is provided.
And as jurisdiction was given not only to courts but to petty magistrates, many of whom were ignorant and some corrupt, and the certificate of a Justice Shallow was as conclusive as that of a Justice Story, it was almost inevitable that under cover of this loosely drawn statute free colored people would be kidnapped. There were many complaints of such outrages, especially in Pennsylvania and other border States.
Some of the States passed laws in restraint of such abuses. Massachusetts enacted a law to secure trial by jury in all cases in which the right of personal liberty was in question. Pennsylvania passed a law against kidnapping. It was a case arising under that statute which, earned to the Supreme Court of the United States, led to a decision that had important consequences—the case entitled Prigg vs. Pennsylvania. The opinion of a majority of the court, as given by Justice Story, discarding the cautious reserve of the Constitution, speaks articulately of "slaves," alludes to them as the " property" of their masters, and alleges that the clause of the Constitution on this subject was intended to secure owners of slaves in the possession of their property.
It was held that the owner of a slave was clothed with entire authority in every State in the Union to seize and recapture his slave whenever he could do it without a breach of the peace or illegal violence. No legal process was necessary, but the constitutional provision was to that extent self-executing; that the act of 1793 was constitutional, and superceded all State legislation upon the same subject; tnat the Constitution lays on the States no obligation to provide remedies, and confers on them no power to legislate on the subject. Two of the judges dissented from the doctrine that a claimant could seize his "property" without legal process, and two from the denial of the right and duty of the States in the premises. The effect of this decision was.soon seen. The States willingly complied with the mandate to keep their hands off this business. Some forbade their courts to hear such claims, forbidding also under severe penalties their officers to arrest and their gaolers to detain alleged fugitives from slavery. An increasing number were equally unofficious, preferring, indeed, to help the fugitive onward in the direction of the North Star, by "the underground railroad." These developments caused no small irritation among slaveholders, which led, in connection with other matters of sectional agitation, to the enactment of the Fugitive Slave Act of 1850.
Fugitive Slave Act of 1850
The Fugitive Slave Act of 1850, to fill the vacuum made by the withdrawal of State agencies, conferred on commissioners appointed by the United States courts the powers given to judges and magistrates. Additional commissioners were to be from time to time appointed. Commissioners were given concurrent jurisdiction with judges. Marshals and deputy-marshals were required to obey and execute warrants and other processes, under penalty of one thousand dollars for refusing or neglecting; and, if a fugitive should escape after arrest, the marshal or deputy was subject to be prosecuted on his official bond for the full value of the service or labor claimed to be due—in plain English, for his value as a slave.
Commissioners were empowered to appoint other persons to make arrests, having power also to summon bystanders to help. Fugitives arrested under or without warrant were to be taken forthwith before a judge or commissioner, who should hear and determine the case by summary process. It was provided that an affidavit alleging service due, and an escape, with a description of the person, might be sworn to, and certified by any magistrate under seal, and such seal should be sufficient to establish the competency of the proof. Provision was made for military aid to the marshal if needed, and such extraordinary expenses were made a charge upon the public treasury. As a fitting climax to the whole, the commissioner was to be paid a larger fee for a certificate of extradition than for a discharge.
The act, it will have been observed, made the sworn statement of the claimant or his agent conclusive proof. The commissioner was not to inquire whether "labor or service was due." It was enough that the claimant said under oath that it was due. The claimant was his own judge and jury ; the commissioner and marshal were his ministerial officers to do his bidding. A curious commentary on the law was made by the first case of its enforcement. The alleged fugitive was surrendered to the agent of the alleged owner.
But when he reached his destination in Virginia the claimant discovered that it was a case of mistaken identity, and the man was returned to his Northern home, happy in having to do with a man of justice and honor. To how many would the bait to their cupidity have been a temptation too great to be resisted, especially considering that the kidnapping would have been entirely according to law! In a case that occurred in Boston the alleged fugitive offered to prove his freedom, but the commissioner decided that the evidence could not be admitted. He could only inquire whether the person before him was the person described in the affidavit. That being found, extradition was decreed as of course.
It could not be deemed strange that such a law, enforced with such contempt of all the rules of common justice and of the feeling of humanity, created intense excitement. If more stirring events nad not caused a more intense commotion, it may be doubted whether its enforcement would have often called attention to its peculiar features. It was as much the point of honor as the pecuniary grievance that moved men to action. It was observed that the slaveholders of the Gulf States, who very seldom suffered loss from the flight of their "property," were more excited on the subject than they of the border States, who bore the chief brunt of that misfortune. The Fugitive Slave Act bore its part in the prelude of the civil war, and passed away with the system of bondage from which it sprung.
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