An Empire for Slavery

On all issues but one, antebellum southerners stood for state's rights and a weak federal government. The exception was the fugitive slave law of 1850, which gave the national government more power than any other law yet passed by Congress. This irony resulted from the Supreme Court's decision in Prigg v. Pennsylvania (1842).

In the typical oblique language of the Constitution on slavery, Article IV, Section 2, stipulated that any "person held to service or labor in one state" who escaped to another "shall be delivered up on claim of the party to whom such service or labor shall be due." The Constitution did not specify how this provision should be enforced. A federal law of 1793 authorized slaveowners to cross state lines to recapture their property and bring it before any local magistrate or federal court to prove ownership. This law provided the fugitive with no protection of habeas corpus, no right to a jury trial, no right to testify in his own behalf. Some northerners believed that the law amounted to an invitation for kidnappers to seize free blacks. And indeed, professional slave catchers did not always take pains to make sure they had captured the right man nor did every judge go out of his way to ensure that a supposed fugitive matched the description on the affidavit. A good many slave catchers did not bother to take their captured prey before a court but simply spirited it south by the quickest route.

To remedy such abuses, several northern states enacted personal lib erty laws. These measures variously gave fugitives the rights of testimony, habeas corpus, and trial by jury, or they imposed criminal penalties for kidnapping. In the hands of antislavery officials, some of these laws could be used to inhibit the capture of fugitives. In 1837, Pennsylvania convicted Edward Prigg of kidnapping after he had seized a slave woman and her children and returned them to their Maryland owner. Prigg's lawyers appealed the case to the U. S. Supreme Court, which in 1842 rendered a complex decision. Declaring the Pennsylvania antikidnapping law of 1826 unconstitutional, the Court upheld the fugitive slave law of 1793 and affirmed that a slaveholder's right to his property overrode any contrary state legislation. At the same time, however, the Court ruled that enforcement of the fugitive slave clause of the Constitution was a federal responsibility and that states need not cooperate in any way. This opened the floodgates for a new series of personal liberty laws (nine between 1842 and 1850) that prohibited the use of state facilities in the recapture of fugitives.1

In some areas of the North, owners could not reclaim their escaped property without the help of federal marshals. Black leaders and sympathetic whites in numerous communities formed vigilance committees to organize resistance to such efforts. These committees cooperated with the legendary underground railroad which carried fugitives north toward freedom. Magnified by southerners into an enormous Yankee network of lawbreakers who stole thousands of slaves each year, the underground railroad was also mythologized by its northern conductors who related their heroic deeds to grandchildren. The true number of runaway slaves is impossible to determine. Perhaps several hundred each year made it to the North or to Canada. Few of these fugitives had escaped from the lower South, the region that clamored loudest for a stronger fugitive slave law—less for practical advantage than as a matter of principle. Like a free California, northern aid to escaping slaves was an insult to southern honor. "Although the loss of property is felt," said Senator James Mason of Virginia, "the loss of honor is felt still more." The fugitive slave law, commented another politician, was "the only mea

1. Prigg v. Pennsylvania, 16 Peters 539 (1842). For details and analyses of early personal liberty laws, see Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North 1780-1861 (Baltimore, 1974), 1-106; Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law 1850-1860 (Chapel Hill, 1970), 3-14; and Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York, 1978), 40-47.

sure of the Compromise [of 1850] calculated to secure the rights of the South."2

To secure these rights the law seemed to ride roughshod over the prerogatives of northern states. Yankee senators had tried in vain to attach amendments to the bill guaranteeing alleged fugitives the rights to testify, to habeas corpus, and to a jury trial. Southerners indignantly rejected the idea that these American birthrights applied to slaves. The fugitive slave law of 1850 put the burden of proof on captured blacks but gave them no legal power to prove their freedom. Instead, a claimant could bring an alleged fugitive before a federal commissioner (a new office created by the law) to prove ownership by an affidavit from a slave-state court or by the testimony of white witnesses. If the commissioner decided against the claimant he would receive a fee of five dollars; if in favor, ten dollars. This provision, supposedly justified by the paper work needed to remand a fugitive to the South, became notorious among abolitionists as a bribe to commissioners. The 1850 law also required U. S. marshals and deputies to help slaveowners capture their property and fined them $1000 if they refused. It empowered marshals to deputize citizens on the spot to aid in seizing a fugitive, and imposed stiff criminal penalties on anyone who harbored a fugitive or obstructed his capture. The expenses of capturing and returning a slave were to be borne by the federal treasury.3

The operation of this law confirmed the impression that it was rigged in favor of claimants. In the first fifteen months after its passage, eighty-four fugitives were returned to slavery and only five released. During the full decade of the 1850s, 332 were returned and only eleven declared free.4 Nor did the law contain a statute of limitations. Some of the first fugitives returned to slavery had been longtime residents of the North. In September 1850, federal marshals arrested a black porter who had lived in New York City for three years and took him before a commissioner who refused to record the man's insistence that his mother was a free Negro, and remanded him to his claimant owner in Balti

2. Quotations from Nevins, Emergence, II, 489; and Nevins, Ordeal, I, 385. For a scholarly analysis of the underground railroad and the realities of the fugitive question, see Larry Gara, The Liberty Line: The Legend of the Underground Railroad (Lexington, Ky., 1961).

3. The law is conveniently printed in Holman Hamilton, Prologue to Conflict: The Crisis and Compromise of 1850 (Lexington, Ky., 1964), 204-8, and its provisions are summarized in Campbell, Slave Catchers, 23-25.

4. Campbell, Slave Catchers, 207.

more. Several months later slave catchers seized a prosperous black tailor who had resided in Poughkeepsie for many years and carried him back to South Carolina. In February 1851 agents arrested a black man in southern Indiana, while his horrified wife and children looked on, and returned him to an owner who claimed him as a slave who had run away nineteen years earlier. A Maryland man asserted ownership of a Philadelphia woman whom he said had run away twenty-two years previously. For good measure he also claimed her six children born in Philadelphia. In this case the commissioner found for the woman's freedom. And in the cases of the Poughkeepsie tailor and the New York porter, black and white friends raised money to buy their freedom. But most fugitives who were carried south stayed there.5

Antislavery lawyers challenged the fugitive slave law, but in 1859 the U. S. Supreme Court upheld it.6 Long before this, however, blacks and their white allies had done everything they could to nullify the law by flight and resistance. The quick seizures of blacks who had long lived in the North sent a wave of panic through northern Negro communities. Many black people fled to Canada—an estimated three thousand in the last three months of 1850 alone. During the 1850s the Negro population of Ontario doubled to eleven thousand.

Some dramatic flights took place almost literally under the noses of slave catchers. In Boston lived a young couple, William and Ellen Craft, whose initial escape from slavery in Georgia two years earlier had become celebrated in the antislavery press. Light-skinned enough to pass for white, Ellen had cut her hair short, dressed in male attire, and impersonated a sickly white gentleman going north for medical treatment accompanied by "his" servant (William). They had thus traveled to freedom on real above-ground railroads. A skilled cabinetmaker, William Craft found work in Boston. He and his wife joined the church of Theodore Parker, head of the local vigilance committee, whose congregation included several other fugitive slaves. The publicity surrounding the Crafts naturally attracted their owner's attention. As soon as the fugitive slave bill became law he sent two agents to recapture them. This was like throwing a rubber ball against a brick wall. Boston was the communications center of abolitionism. Under the "higher law"

5. Ibid., 199-206; Potter, Impending Crisis, 131-32; Philip S. Foner, History of Black Americans from the Compromise of 1850 to the End of the Civil War (Westport, Conn., 1983), 33-36; Nevins, Ordeal, I, 385-86.

6. Ableman v. Booth, 21 Howard 506.

doctrine, blacks and whites there had vowed to resist the fugitive slave law. "We must trample this law under our feet," said Wendell Phillips. It "is to be denounced, resisted, disobeyed," declared the local antislav-ery society. "As moral and religious men, [we] cannot obey an immoral and irreligious statute." When the slave catchers arrived in Boston on October 25, 1850, they vowed to get the Crafts "if [we] have to stay here to all eternity, and if there are not men enough in Massachusetts to take them, [we] will bring them some from the South." As things turned out, they stayed five days and brought no one. Parker hid Ellen Craft in his house, where he kept a loaded revolver on his desk. William went to ground in the house of a black abolitionist who kept two kegs of gunpowder on his front porch and a veritable arsenal in the kitchen. Members of the vigilance committee put up posters around town describing the "man-stealers," harassed them in the streets, and warned them on October 30 that their safety could not be assured if they remained any longer. They left on the afternoon train.7

President Fillmore denounced the Bostonians, threatened to send in federal troops, and assured the Crafts' owner that if he wanted to try again the government would help him "with all the means which the Constitution and Congress have placed at his disposal." But the vigilance committee put the Crafts on a ship to England. Parker sent a defiant missive to Fillmore by way of a parting shot. "I would rather lie all my life in jail, and starve there, than refuse to protect one of these parishioners of mine," the pastor told the president. "I must reverence the laws of God, come of that what will come. . . . You cannot think that I am to stand by and see my own church carried off to slavery and do nothing."8

Boston remained the cockpit of this new revolution. In February 1851 a black waiter, who had taken the name of Shadrach when he escaped from Virginia a year earlier, was seized in a Boston coffeehouse by agents to whom he was serving coffee. They rushed him to the federal courthouse while an angry crowd gathered outside. Denied the use of state facilities by the personal liberty law, a handful of deputy federal marshals tried to guard Shadrach. Suddenly a group of black men broke

7. Quotations from Foner, History of Black Americans, 19; and Lawrence Lader, The

Bold Brahmins: New England's War Against Slavery 1831-1863 (New York, 1961),

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