soldier with rifle american civil war  THEN

AND

NOW 

The Fugitive Slave Clause

(The Core of the Union)

 

 

 

I

The Beginning

In consequence of the failure of the Congress, under the Articles of Confederation, to function effectively in the administration of the Union’s affairs, the States, through their legislatures, sent representatives to the convention held at Philadelphia in 1787, for the purpose of developing a proposal for a new construction of the government of the Union. Late in the proceedings of the convention, Charles Pinckney of South Carolina appears to have proposed that the language of the Fugitive Slave Clause be included in the draft of the constitution (More likely Virginia was at the bottom of it). The clause was adopted by the convention without any recorded debate regarding the meaning of its language, with Madison making only passing reference to the clause in his notes, which is an astonishing fact, under the circumstances.

Subsequently, the proposed constitution was delivered to Congress and Congress caused it to be delivered to the respective States for their consideration, with the recommendation that the legislatures submit the document to the people of the States for their consent to its ratification.

In the course of its consideration by the Virginia Convention, no debate was recorded concerning the clause; indeed, its existence was mentioned only by James Madison and, then again, only in passing. The same lack of debate over the inclusion of the clause in the constitution occurred in the conventions of the Free states.  

Madison in the Virginia Convention

All of the men who attended the Philadelphia Convention, as well as those attending the Virginia Convention, understood that the extradition of slaves escaping from one State to another was considered, under the law of nations, as a matter of comity and not of right. This principle probably had its origin in the Jewish Code (Deut. Xxiii. 15.) “Thou shalt not deliver unto his master the servant who has escaped from him unto thee.” In their ancient times, like everyone else, the Jews tolerated slavery¸ and, though they would not permit one Jew to conceal the slave of another Jew, they forbade the slave’s extradition when he escaped from a Gentile, or from a foreign nation. This tradition evolved into a principle of the law of nations, which allowed that no State within the society of nations was bound to deliver up a slave belonging to the citizen of a foreign state found within its dominions. The State might deliver up the foreign slave if it wished, as a matter of courtesy but not as a matter of duty. This was the legal situation that existed between 1776, when the colonies of Great Britain declared their independence from the king, and 1789 when the people of the colonies─now recognized as States─ratified the Constitution.

Given the organization of the Constitution into articles, it is obvious that, after defining the powers and operations of the three branches of the new government─legislative, executive, and judicial─the framers came to the question of the relationship between the states in the new Union being constituted.  We know this, by observing that all the sections of Article IV deal with issues that implicate the states jointly: mutual recognition of the privileges and immunities of their citizens; mutual credit each can expect their judgments will receive from each other; how their joint territories will be administered; and how their fugitives will be recovered.

It is obvious, too, though the men of the times hotly divided on the issue pro and con, that the framers intended their design of the Union to evolve into one great consolidated nation, and that those of the Free states were so desperate to achieve it that they allowed those from the Slave states to slip into the constitution a requirement that the former suppress their own domestic policy in favor of the domestic policy of the latter, a concession that would haunt them to the greatest war the world to that time had ever known.

Why would the Free states, that is their representatives at the convention, give up their sovereign right to regulate as they pleased the status of persons within the borders of their own dominion? Why would they surrender their sovereignty to the interest of the Slave states in capturing runaway slaves? Why would they agree to suppress their domestic policy within their own territory, and act instead strictly in accordance with the domestic policy of foreign states, by allowing the foreigner to come into their states, arrest an inhabitant, and, without any process of their laws, take him forcibly against his will out of the state? For what did they do this?

Before the Constitution was ratified, the Free states, in exercising the comity of nations, presumed that every inhabitant of their territory was, as a matter of their laws, free. A foreign citizen might come into their territory and seek to arrest and remove a person on the claim the person was bound to the citizen for life as a slave and had escaped. The Free state would require the foreign citizen to rebut the legal presumption of the person’s free status by producing in court sufficient evidence to establish the fact of the escape and the ownership. If this was done to the satisfaction of the court, either with the aid of a jury or not, the Free State would tend, depending on the circumstances, to allow the person’s removal from its dominion. But, as the framers wrote the constitution, after its ratification, the foreign citizen is privileged to storm into the Free State and take the person with less process that he would if he were there to take a horse. Accepting as true the statement found constantly repeated in the judicial decisions of the times─that the clause was of “the last importance to the Slave states and adopted into the constitution by the unanimous consent of the framers to it, a proof at once of its intrinsic and practical necessity”─the question remains unanswered: Why would the Free states consent to it?

As Mr. Justice Story wrote in Prigg v. Pennsylvania, in 1842, “When the Union of the American States was based on the Articles of Confederation, comity governed their relations on this issue. But, with the adoption of the Constitution, reliance on comity was replaced by reliance on the language of the Fugitive Slave Clause which plainly imposes on each State the duty to deliver up a slave who escapes into her territory, upon the owner making claim.” But, why exactly did the Free States, sovereign in their own right, allow themselves to be strictly bound by a duty instead of their discretion? They were “States” before the Constitution was ratified, and they were “States” after the Constitution was ratified. Why not leave the matter where it was, a matter of comity? Why give one class of States control over the domestic policy of the other class of States, when nothing was given to the latter class in return? The question defies intelligent explanation, and  no one of the times said anything which explains it.

The answer must lie in the reality of the pressures of the times. In 1787, the French Revolution had begun, distracting France for the moment from meddling in American affairs, though its navy was threatening American shipping on the seas, and Britain was still hovering in Canada waiting for a chance to exploit American weakness, and Spain, in possession of the mouth of the Mississippi and both banks far up the river, was refusing to recognize the legitimacy of the United States. If rational human action is to be assumed, as opposed to plain madness, the answer must be that the insecurity of the individual Free states drove their representatives to accept the Slave states’ intrusion into their sovereignty. The pressures the powers of Europe created in the minds of the Americans is evident from the expressions of the Virginians in their ratifying convention.

Edmund Randolph

 

So, then, with Randolph’s words in view, the answer to the question must be that, like the men of Virginia, the men of the Free states felt so threatened by the insecurity inherent in the world situation they faced, they were willing to allow the domestic policy of the Slave states to trump their sovereign right not to deliver up escaped slaves. They did this, apparently without realizing what the concession implied─that the dominant domestic policy of the Union would be the protection of slavery.

II

The Middle

Four years after the Constitution was ratified by the people of the United States, their congress passed the act of 1793 which provided a process the Free states were to follow, in meeting the duty the Fugitive Slave Clause imposed on them.

President George Washington signed the act into law on February 12, 1793. And, in his fifth annual address to the Congress said,

 “I cannot recommend to you measures for the fulfillment of our duties to the rest of the world without again pressing upon you the necessity of placing ourselves in a condition of complete defense and of exacting from them the fulfillment of their duties toward us. The United States ought not to indulge a persuasion that, contrary to the order of human events, they will forever keep at a distance those painful appeals to arms with which the history of every other nation abounds. There is a rank due to the United States among nations which will be withheld, if not absolutely lost, by the reputation of weakness. If we desire to avoid insult, we must be able to repel it; if we desire to secure peace, one of the most powerful instruments of our rising prosperity, it must be known that we are at all times ready for war. The documents which will be presented to you will show the amount and kinds of arms and military stores now in our magazines and arsenals; and yet an addition even to these supplies cannot with prudence be neglected, as it would leave nothing to the uncertainty of procuring warlike apparatus in the moment of public danger.”

 

On the vote to accept or reject the Fugitive Slave Act, no nays were registered in the Senate of the United States which then included New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, and Pennsylvania. And only seven nays from representatives in the House.

The absence of debate, again, is astounding, given the fact that the Congress presumed to impose a duty, not simply on the States, but directly on the judiciary of the State to allow its magistrates to assume the role of entertaining the slave owner’s claim summarily and provide the certificate─passport, if you will─the slave owner was to use in removing his supposed escaped slave from the State.

It appears the first case to reach an appellate court of a State, after the passage of the Act of 1793, is Glen v. Hodges, in 1812; an action for trespass brought by Glen against Hodges for Hodges taking a black man named Harry from the possession of Glen, who claimed Harry was his slave and had escaped from New York into Vermont, where he had lived for two years before being captured.  (New York abolished slavery by graduation in 1799. For much of the 18th century, New York City was second only to Charleston, South Carolina, in its proportion of slaves in the urban population.)  Though the trial court found for the defendant, the appellate court reversed on the ground that the act of 1793, “prescribes the mode of reclaiming the slave. It not only gives a penalty against any person who knowingly obstructs the claimant in the act of reclaiming the fugitive, and the only question is whether the defendant is not responsible in trespass which he is for rescuing the slave.”

Two years after Indiana came into the Union as a Free State, a case came into the jurisdiction of the Federal circuit court which decided, for the first time, the question whether the congressional act of 1793 provided the exclusive basis for the right of the slave owner to reclaim an escaped slave. The slave Susan moved the court to apply to her case the law of Indiana which specified that she was entitled to a jury trial on the issue of whether she was, in fact, a slave. Though the facts are not stated in the decision of the court, Susan’s owner, a citizen of Kentucky, might have brought her voluntarily into the dominion of Indiana, in which case there would be no proof of an “escape;” or the claimant’s title might be legally defective in some way. Susan further claimed that the Fugitive Slave Clause was strictly a compact between the states and conferred no power upon the congress to enforce the duty of the Free states to deliver her up to the claimant.

The circuit court denied Susan’s motion on two grounds which would, twenty-five years later, find their way into the decision of the Supreme Court of the United States, in Prigg v. Pennsylvania.

But for now the matter was in the hands of a Judge Parke, who ruled in Susan’s case:

“Susan moves for dismissal on the ground that the Fugitive Slave Clause confers no authority upon Congress on the subject of fugitive slaves and, therefore, its act of 1793 is unconstitutional. Even if it is not, she says, the States have authority, concurrent with Congress, to legislate on the subject, and therefore that any procedure under the law of Indiana operates to the exclusion of any authority derived from the act of congress.

 

But when congress legislated and provided a remedy commensurate with the object in view, it superseded any state regulation then existing, or that might thereafter be adopted. The idea of another concurrent power in the federal and state governments appears to have been carried too far in the argument, and, if admitted, would be pregnant with the greatest mischief, and the source of perpetual collisions between the states and the general government.

 

In the formation of the constitution, the states parted with this authority, and devolved it upon the general government, and it is a privilege secured to the people of the states, respectively, to seek redress before the tribunals, in the mode designated by congress. By the law of congress, a judge or magistrate is competent to decide, finally, the service due the owner; but by the law of the state, the validity of his claim is to be decided by a court aided by a jury. It is unnecessary to inquire whether one or the other is best calculated to promote the ends of justice. It is sufficient that congress have prescribed the mode.”

 

Up to 1820, when the congress enacted what is popularly known as The Missouri Compromise, the state and federal courts generally followed the view of Judge Parke. In Pennsylvania, for instance, a runaway slave claim came before Chief Justice Tilghman of the supreme court of that state, who adopted Judge Parke’s pronouncement. In 1819, a Maryland citizen named Glen had arrested a black man named Hall in Philadelphia and brought him before a justice of the peace, one Renshaw, for the purpose of obtaining a certificate of removal mandated by the congressional act of 1793.  Justice Renshaw, instead of giving the certificate, ordered Hall incarcerated so that he might consider the issue of Hall’s status with the aid of a jury. Whereupon, Glen submitted a writ of habeas corpus to Judge Armstrong of the court of common pleas. Judge Armstrong granted the writ, heard the case on a summary basis, and gave Glen the certificate. Hall then filed his own writ of habeas corpus which Glen moved to quash. When his motion was granted, Hall appealed to the Supreme Court but lost to the reasoning of the court’s Chief Justice Tilghman.

“This constitution has been adopted by the free consent of the citizens of Pennsylvania, and it is the duty of every man, whatever his station, to give it a fair and candid construction. By the [Fugitive Slave Clause] it is provided, `that no person held to labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such labor, but shall be delivered up, on claim of the party to whom such labor may be due.’

 

Here is the principle: the fugitive is to be delivered up, on claim of his master. But it required a law, to regulate the manner in which this principle should be reduced to practice. It was necessary to establish some mode in which the claim should be made, and the fugitive be delivered up. Accordingly, it was enacted by the act of Congress [of 1793] that the person to whom the labor of the fugitive was due, his agent or attorney, should be empowered to arrest such fugitive, and carry him before a judge of the federal courts, or before a judge or magistrate of the state courts, and upon proof satisfactory to said judge or magistrate, it should be the duty of the magistrate to give a certificate to the claimant which should be sufficient warrant for removal of a fugitive to the state from which he fled.

 

It plainly appears, from the whole scope and tenor of the constitution and the act of congress that the fugitive was to be delivered up on a summary proceeding, without the delay of a formal trial in a court of common law. But, if he had really a right to freedom, that right was not impaired by this proceeding; he was placed just in the situation in which he stood before he fled, and might prosecute his right in the state to which he belonged.

 

If this writ of Hall is to issue, its effect is to arrest the warrant of Judge Armstrong, and thus defeat the constitution and the law of the United States. This is the plain state of the matter, that the writ has been issued in violation of the constitution of the United States. The writ therefore should be quashed.”

 

This is strange thinking, indeed: the government of the United States is a government, we are told in class, of limited powers, powers that are expressly granted by the people and those additional powers only which are necessary to carry into effect those expressly granted. Yet, nowhere can the intelligent reader of the constitution find in it any words expressly granting to Congress the power to invade the sovereignty of the Free States for the purpose of imposing upon them a procedure which their judicial officers must follow in processing a claim made by a foreigner against an inhabitant the foreigner claims escaped as a slave from his lawful possession.

In Article I, Section 8 of the Constitution, the people set forth in a list all of the express powers they granted Congress, concluding the list of powers with the statement that Congress can “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested in this Constitution in the Government of the United States, or in any Department or Officer thereof.” Plainly, the power to enforce the duty imposed upon the Free states in Article IV, Section 2 is not set forth in Article I, Section 8 and, therefore, cannot possibly fall within the meaning of the quoted language unless that language can somehow be reasonably invoked, because the power sought is vested in the Judicial Department of the United States, by virtue of the fact that the Fugitive Slave Clause includes the word, claim. How thin is this? So much for the lip service the men of the Revolution paid to the principles of American liberty.

Furthermore, how is it that we are to ignore the Bill of Rights which were incorporated by the people into their Constitution after the Fugitive Slave Clause was inserted into the constitution and the constitution was ratified. How is it that the Due Process Clause does not operate to qualify the power the congress asserts it can invoke, to trump all the laws of the Free States? What about the fact the Fugitive Slave Clause in execution flaunts the Bill of Rights which emphatically pronounces the rule that, “in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved?” Before the Bill of Rights was attached by the people to their constitution, the duty of delivering up an escaped slave might be performed summarily. But after?

And certainly jury trial should be preserved, when the circumstances plainly can prove complex. Take the 1831 Ohio case of Tom, a colored boy v. Daily and Desha. Tom’s mother, Kate Daily, the sister of Thomas Daily, was formerly a slave of a Miss Baker, of Mason county, Kentucky. Baker married with one Alexander Edwards, taking Kate to her marriage as a slave. Edwards died in 1823, and at a public sale made by his administrator Thomas Daily appealed to those in attendance, not to bid on Kate as he wished to purchase her for the sole purpose of emancipating her. Daily purchased Kate without opposition in the bidding and immediately pronounced her a free woman. Soon after the sale, Kate removed to the plantation of James Dummit, where she has since resided and where her son, Tom, was born. In 1828, Daily purchased a slave from Desha and to secure the purchase price gave Desha a bill of sale of Tom. Kate, learning this, sent Tom to Ohio. Desha following, made application with the major of Cincinnati, who issued his warrant which was used to arrest Tom. Before Tom could be taken from the state, his next friend, Orange DeWitt, moved the Ohio courts for an injunction on the ground the facts established Tom was a free man. The court dismissed the case and Tom appealed to the Ohio Supreme Court which was quick to rule that the law of Kentucky, that held a slave could be entitled to freedom as a matter of equity, applied certainly to a case where a brother sought to reduce his sister and her child to slavery, in direct violation of his most solemn public expression she was free.

In fact, Clay is correct; the law books are full of decisions from Slave state courts upholding verdicts and judgments in favor of the slave on petitions for freedom brought. In Virginia, for example, the law was that you could not import a slave into the state, unless you registered the fact within sixty days of the event, affirming that the importation was not for the purpose of selling the slave but because you intended to take residence in the state and use the labor of the slave in the pursuit of your work. In 1826, a slave owner failed to do this and the law emancipated the imported slave.

“But it is contended,” wrote the unanimous Virginia Supreme Court, in 1826, “that the right of the slave to freedom, under the Act of 1792, was taken away by the Act of 1819, which releases penalties incurred under former laws, and not already enforced. It may be admitted, that the right of a slave to be free, in consequence of being imported contrary to the Act of 1792, was a forfeiture imposed upon the owner, by way of penalty. But at the very moment that this forfeiture was incurred by the owner, under the Act, a perfect right to freedom vested in the slave, by the same Act. I call it a perfect right, because its enjoyment might be enforced by due course of law, the moment it vested; and it vested as soon as the violation of the law was complete.” (McMichen v. Amos and others 25 Va. 134 (1826)

 

And the suggestion carries some merit (as an ordinary matter of legal procedure), of Supreme Court Justice Story’s, who was a font of constitutional law.

But the Clause speaks about a claim, Justice Story; and isn’t a “claim” a “suit?” And isn’t this a judicial matter solely because the people used the word “claim” in their clause? The nature of the claim and the process by which it is disposed, is a pure question of law (unless influenced by circumstance)

And why are the two classes of fugitives not delivered up , the same way? A call by the Governor of Virginia upon the Governor of Pennsylvania to deliver up the alleged escaped slave, as he does when the escape is from justice: what’s the problem? Why the difference? Why the need to spilt the concept of fugitives into two distinct groups; one getting the call from the governor, and one getting arrested and taken to a magistrate, who issues a warrant to the owner to take the slave out of the dominion. How did they not see, at the conventions, what was coming down? That the power of the Slave states, though but 5/13th of the whole, was to trump the power of the Free states not only within their own sovereign dominions but within the Union? The Slave states were that far ahead at the time? The Free states needed them that much? The powers of Europe were that threatening? Well, by the 1840s, the threat was gone, the power of the Union an established fact, and millions of Irish and Germans were flooding the country and the wrong direction the Union was taking, was sinking in.

III

The End

In the 1840s, as waves of Irish and German immigrants swept into the western states of the Union, the entire apparatus of the Federal Government was in the grip of the slave power: president, congress, supreme court; and in the Free states the grip was beginning to chaff. Pennsylvania provided an example of this. In 1826, the legislature amended its fugitive slave law, to include a provision that made it a felony for a slave owner to remove a slave from the state without a warrant from a magistrate. In 1837, a man named Prigg, acting as agent for a person claiming ownership of a woman named Margaret Morgan, took her from Pennsylvania to Maryland, without obtaining a warrant, and was charged with kidnapping. Extradited, as a fugitive from justice, Prigg was convicted of the offense and his appeal from the verdict reached the United States Supreme Court, in 1842, and resulted in the Court declaring Pennsylvania’s law, and all laws like it, unconstitutional. This was the beginning of the end for the slave power.

Margaret Morgan was born in Maryland about 1812, of two slaves who were owned by a man named Ashmore. In 1821, Ashmore sold his real estate holdings to his daughter, Susanna for a nominal sum. He died intestate in 1823. All his personal property, including his slaves, passed by law to his wife. After Ashmore’s death, Margaret married Jerry Morgan, a free black man who lived in Maryland. In 1832, Margaret and Jerry, and their three children, moved to York County, Pennsylvania. In 1837, Susanna’s husband, along with his friend, Edward Prigg, went to York County, arrested Margaret and her children, and took them to a magistrate. When the magistrate refused to provide the slave catchers with the certificate authorizing their removal of Margaret from the state, they took her and her children from the state anyway. Among the children carried away, was a child conceived and born in Pennsylvania. (There were factual issues Margaret might have raised, in Pennsylvania had she the chance, regarding actions Ashmore had taken toward her, which might have been sufficient to create a question of fact whether Ashmore’s conduct constituted a legal, or equitable, manumission. )

The United States Supreme Court of 1842

Chief Justice Roger Taney

(Maryland)

Joseph Story 
(Massachusetts)
Joesph Story
John McLean
(New Jersey)
John McLean
James Wayne
(Georgia)
James Wayne
Peter Daniel
(Virginia)Peter Daniel
Smith Thompson
(New York)Smith Thompson
Henry Baldwin
(Connecticut) Henry Baldwin
John Catron
(Kentucky)John Catron
John McKinley
(Alabama)
John McKinley
 

Of the nine members of the Supreme Court, in 1842, five were born or raised in Slave states and four were born and raised in Free states. Given the fact that Prigg v. Pennsylvania was the first case of its kind to reach the Supreme Court since Washington signed into law the Act of 1793, you would expect that Chief Justice Roger Taney would have written the majority opinion─in this case a majority opinion with only one dissent; that of Justice McLean. But, instead it was Joseph Story, born in Massachusetts, founder of Harvard Law School, prolific writer of constitutional law tomes, who wrote the first and last Supreme Court decision on the question of Congress’s power to control the process by which the Free states were constitutionally required to deliver up escaped slaves.

Here are Story’s words which clothed the Fugitive Slave Clause with the absolute supremacy of Story’s view of the law:

“The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way regulate, control, or restrain. We say this, because there is no qualification or restriction of the right to be found in it, and we have no right to insert any which is not expressed, and cannot be fairly implied.”

 

Note: Story, the Harvard Law School professor, ignores the hook for interpretation the word “claim” provides. Where there is a “right” there necessarily must be found a “duty.” Ordinarily, we would say that the slave owner has the right and the State has the duty. But, here, in Prigg, Story pins the duty on the Federal Government.

 

We have not the slightest hesitation in holding that, under the Constitution, the owner of a slave is clothed with entire authority, in every state of the Union, to seize and recapture his slave. But, because the right must be effectively secured, the constitution does not stop here; The owner of a slave may not be able to enforce his right against persons who secrete or conceal, or withhold, his slave. And this leads us to the other part of the clause, which implies at once a guaranty and duty. It says, `But the slave shall be delivered up on claim of the party to whom such labor may be due.

 

A claim is to be made. What is a claim? It is a demand as of right made by one person upon another, to do or to forbear to do some act as a matter of duty.

 

Note: “Suit” means an action or process in a court for the recovery of a right or claim. A “claim” means to make a demand in court for the enforcement of a right.

 

The slave is to be delivered up on the claim. By whom to be delivered up? In what mode to be delivered up? How, if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall be the evidence of a rightful delivery? These and many other questions will readily occur upon the slightest attention to the clause; and it is obvious that they can receive but one satisfactory answer. They require the aid of legislation to protect the right and enforce the delivery.

 

Note: Story is leaping past the problem of the absence in the constitution of a grant of power to the Congress to legislate, “to protect the right and enforce the delivery.” Congress has power to make laws that are necessary to “carry into execution the foregoing powers (i.e., the list of express powers granted),” and “all other powers vested in the departments of the government.” The Judicial branch is vested with jurisdiction to hear the appeal of the Prigg case, because it is a case between a citizen of one state and another State, and because the case depends for its resolution on an interpretation of the constitution of its laws, but how does this fact create for Story a “power” in Congress which requires legislation to implement?

 

Story is begging the question: Article IV contains express directions of the people for regulating the relationship between their sovereign States: They commit their states to give full faith and credit to each other’s judgments, and expressly delegate to Congress the task of prescribing the manner in which the judgments shall be proved. They commit their states not to form states out of each other’s territory without the consent of Congress. They authorize Congress to make all needful regulations for managing the Territory of the Union. They commit the Federal Government to the protection of their States’ republican form of government and to protect their states against invasion. And they commit their states to deliver to each other fugitives from justice as well as fugitives from labor, giving congress no express authority to prescribe the manner in which the delivery shall occur.

 

Is not Story usurping for Congress a power the people did not grant? If congress has no power to compel Pennsylvania to deliver up to Maryland a fugitive from justice, why has it power to compel Pennsylvania to deliver up to Maryland a fugitive from slavery? But, even assuming it doesn’t, why can’t congress simply empower its own courts with jurisdiction to enforce the slave owner’s undeniable constitutional right to claim his escaped slave and remove her from the Free state in which she’s found?

 

The clause is found in the Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effects the duties of the national government.

 

Note: Story, here, suddenly throws in the idea that the Fugitive Slave Clause can reasonably be read to impose a duty on the Federal Government to enforce the right the clause plainly gives the slave owner to claim his escaped property. Story is substituting “Duty” in place of “power.” The people did not impose “duties” on the government; they granted it “powers.” Story’s logic leaps over the chasm between these two concepts. Instead of the clause granting the government a power to enforce the right, it imposes a duty to enforce the right.

 

We hold the act of 1793 to be clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority upon state magistrates, to be free from reasonable doubt and difficulty upon the grounds already stated. As to the authority so conferred upon state magistrates [they] may, if they choose, exercise that authority, unless prohibited by state legislation.

 

Upon these grounds, we are of the opinion that the act of Pennsylvania upon which [Prigg’s] indictment is founded, is unconstitutional and void. It purports to punish as a public offense against that state, the very act of seizing and removing a slave by his master, which the Constitution was designed to justify and uphold.”

 

The Supreme Court’s decision, in Prigg, means that the Free states can demand nothing of the slave owner as a condition of his right to remove a person he claims is his slave from their dominions. But the slave owner must still obtain a warrant from a federal officer before the removal of the slave can lawfully occur. Any defense to the slave owner’s claim of right, which the slave may possess, must be litigated, if at all, in the slave state from which the slave is alleged to have escaped.

Now comes the admission of Texas into the Union, in 1845; then the War with Mexico, in 1846-47; and, finally, the Compromise of 1850 including the amendment to the Fugitive Slave Law which replaced the judicial officers of the Free states with federal commissioners.

Section 6 of the Act of 1850

The passage of the Fugitive Slave Law of 1850 resulted in the passage of laws in the Free states which forbade their judges and magistrates from acting as agents of the Federal Government in its enforcement of the federal law, and laws which forbade to the Federal Government the use of their jails as holding pens for captured slaves. This left the enforcement of the Fugitive Slave Clause strictly in the hands of the Federal Government, through its judicial officers and the commissioners appointed by them to process the claims of slave owners for the delivery of slaves.

Among the Free states resisting the Federal Government in the enforcement of the amended law, the most aggressive proved to be Wisconsin. On the evening of March 11, 1854, a man named Garland, with two deputy marshals and some other men, appeared on the outskirts of Racine, at the cabin of a black man named Glover. Garland had in his hand an arrest warrant executed by a Federal district court judge in Milwaukee on Garland’s representation that Glover was his slave and had escaped from him in St. Louis several years before. When Glover opened his cabin door, a melee ensued, and he was taken into custody.

The party proceeded to Milwaukee, where Glover was placed in a jail. Soon a mob, led by an abolitionist newspaper man named Sherman Booth, appeared at the jail, surrounded the place and demanded of the marshals that they release Glover, on the ground that a writ of habeas corpus had been issued by a county court judge which required Glover be produced in his court. The marshals refused, and the mob, using a large timber as a battering ram, broke into the jail and freed Glover. Booth was arrested by the marshals, while Glover made good his escape by catching a steamboat at Racine that carried him to Canada.

From his jail cell in Milwaukee, Sherman Booth caused a petition for a writ of habeas corpus to be delivered to one of the three justices who composed the brand new Wisconsin Supreme Court─Hon. Abram D. Smith. (Smith was born in New York, spent most of his adult life in Massachusetts and Ohio, coming to Wisconsin in 1842.) Booth’s application for the writ was based on the claim that the Fugitive Slave Law was unconstitutional and void. Justice Smith issued the writ immediately, directing Stephen Ableman, the United States marshal for the district of Wisconsin, to produce Booth before the said justice. This, incredibly, U.S. Marshal Ableman did.

Sherman Booth
Justice Smith

Justice Smith’s first bit of reasoning centered on the fact the warrant for Booth’s arrest had been issued by a commissioner, not a judge. Article III, which vests the judicial power in the Supreme Court and such inferior courts that Congress may ordain and establish, speaks only about Congress having power to appoint “judges.” The Fugitive Slave Law of 1850 created the position of “commissioner,” the position to be filled at the order of a district court judge, and clothed the commissioner with authority to issue certificates and warrants upon claims made by slave owners for the delivery of escaped slaves. Since the arrest warrant was issued by a commissioner, Smith reasoned, the Wisconsin courts had concurrent jurisdiction with the Federal courts to consider whether the arrest warrant was a proper exercise of constitutional power.

Having established jurisdiction, Justice Smith asserted that, “the States will never submit to the assumption that United States commissioners have power to hear and determine upon the rights and liberties of their citizens, and issue process to enforce their adjudications, which is beyond the examination and review of the state judiciary.” The matter of the commissioner’s authority, however, was waived by Booth who wished Smith to get to the core of the matter─the constitutionality of the Fugitive Slave Law, itself. Smith readily accepted the task and proceeded to find the law void.

“The question arises, how far does the clause affect the persons alluded to in it? That a person escaping from one state to another should not be discharged by the laws of the state to which he flees; that, in the event of a claim, he should be delivered up, on establishing the fact that the labor of the fugitive was due to such claimant. But the status of the fugitive is essentially different in this state, from his status in the state from whence he fled. In the latter, he remained a slave. Here, he is entitled to the full and complete protection of our laws, so long as he is unclaimed. He is, to all intents and purposes, a free man, until a lawful claim is made for him.

 

It is apparent, therefore, that the fugitive slave leaves his condition of slavery behind him, and takes with him into this state only the dread contingency of the assertion of the claim. The act of 1850 fully recognizes this view, contemplating the recapture as dependent entirely upon the claim of the master.  The gist of the charge against Booth is that he aided in the escape of Glover, yet there is nothing stated in the warrant that establishes the predicate that, in fact, Glover was a slave of Garland, and, thus, I might end the discussion here on this defect and order Booth discharged.

 

But I cannot shrink from the duty I think has devolved upon me to determine the constitutionality of the law. If the sovereignty of the states is destined to be swallowed up by the federal government; if consolidation is to supplant federation, and the general government becomes the sole judge of its own powers, regardless of the solemn compact by which it was brought into existence, as a humble officer of one of the states, I want my skirts to be clear, so that posterity may not lay the catastrophe on me.

 

Suppose, in violation of the compact, any state might do any of the things prohibited. Is it pretended that congress has the right to make such acts penal? Or by legislation, call such offending states to account? Exclude them from the Union? Expel their representatives from their seats in congress? Arrest their executives, their legislators and judges, and imprison them? The acts of such states would be simply void. Now, if congress were to do the same, that is, do acts that are void, the states cannot be bound by them.

 

The record shows that, in the Philadelphia Convention, the framers intended no power to be coupled with the compact between the states described in the second section of Article IV. No power was asked for the federal government to seize escaped slaves; no such power was dreamed of; the proposition that the states should deliver them up was acquiesced in without dissent. Can it be supposed for a moment, that had the framers imaged that under this provision the federal government would assume to override the state authorities, appoint subordinate tribunals in every county in every state, invested with jurisdiction beyond the reach of the state judiciary, wholly independent of the police power of the states, and that the whole army and navy of the union could be sent into a state; does anyone believe the clause would have been adopted without opposition and without debate? The idea is preposterous. The Union would never have been formed upon such a basis. It is an impeachment of historic truth, to assert it.

 

To my mind, this seems very clear and simple. The law of 1850, by providing for a trial of the constitutional issue, between claimant and slave, by officers not recognized by any constitution, is unconstitutional and void.”

 

Justice Smith’s ruling was immediately brought before the whole court on writ of certiorari, by Edward G. Ryan as counsel for U.S. Marshal Abelman. And Chief Justice Whiton, with Smith concurring, and the other justice, Crawford, dissenting, sustained the discharge of Booth. One month later, Booth was back again, this time seeking discharge from a conviction rendered against him in the federal district court, for violating the Fugitive Slave Law by aiding in Glover’s escape. The three justices of the Wisconsin Supreme Court, for different reasons but all agreeing the Fugitive Slave Law was void, ordered Booth discharged from prison.  A year later, the Government’s appeal of the Wisconsin Supreme Court’s order was heard by the United States Supreme Court and it ordered the former court to respond to the latter’s writ of error now issued, by producing the record and transcript of what happened in its court. When the writ was served, the Wisconsin Supreme Court ignored it. In March 1859, the court now under the management of a new chief  justice, Whiton having died, the transcript the U.S. Supreme Court had demanded was delivered, and, in June 1859, the United States Supreme Court reversed the rulings of the Wisconsin Supreme Court.

In entering the U.S. Supreme Court’s writ of mandate in his court’s records, Chief Justice Dixon of the Wisconsin Supreme Court wrote:

We have arrived at the point in our system of double allegiance, where fidelity to the state is treason to the United States, and treason to her, fidelity to them.”

 

Sherman Booth, in the interim, had remained imprisoned by the federal authorities, a status he continued to enjoy until, in December 1860, President Buchannan pardoned him.

 

POST SCRIPT

After all that analysis, can there still be more worth including? Yes, iIt turns out, there is. In 1859, a justice on the Supreme Court of Ohio, summed the whole thing up; I mean as lawyers objectively see it. In Ex Parte Simeon Bushnell 9 Ohio St. 77, The Ohio Supreme Court considered an application for a writ of habeas corpus brought by Bushnell who had been convicted in state court of violating the Fugitive Slave Law of 1850. Bushnell argued that the law was unconstitutional, because nowhere in the Constitution did the States give the Federal Government power to legislate to enforce the Fugitive Slave Clause. Three of the Court's five justices rejected Bushnell's argument, on the basis that the issue of whether Congress had the constitutional power to legislate a remedy for violation of the duty imposed on the States by the clause had been finally decided by the United States Supreme Court, in Prigg. v. Pennsylvania.

Two justices dissented. One of them, Justice Sutliff, made the clearest statement of the case against the proposition that Congress had power to legislate. Here is the substance of his logic:

"In the absence of any special provision authorizing congress to legislate, it is claimed that congress has become invested with power to legislate by virtue of three distinct provisions of the constitution. The provision in Art. 4, it is said, makes it a duty of the states respectively to surrender the fugitive; and sec. 2 or art. 3, extends the judicial power to all cases arising under the constitution; and the concluding clause of sect 8, art 1, authorizes congress to make the necessary laws for carrying the judicial power into execution. Thus, the contention is that congress may have derived power to legislate for the rendition of fugitives.

[But] the judicial power is only extended to all cases arising under the constitution, while the provision that `no person shall be held to service' [etc] is not a case. The provision is a compact or stipulation--it is a duty on the part of the states which, by mutual agreement, they have imposed upon themselves. It cannot, then, be affirmed that congress has any more power to legislate for the performance of the duty of delivering up fugitives, than for the performance of any other duty of the states under the constitution. For while congress has the power to make all laws necessary for carrying into execution the powers of the judiciary, the powers of the judiciary only extend to `cases under the laws of the United States," and that no laws can be passed by congress unless within the limits of its delegated powers. It is absurd, then, to say that the constitution ever contemplated a delegation of power by the states to congress to legislate for the enforcement of duties devolved upon the states under the constitution."

If you accept Justice Sutliff's reasoning, it means that the framers did, indeed, game the system; that is, they danced around this most violate issue--the idea that the Free States must render up from their territories Africans who were slaves by virture of the laws of the Slave States and had escaped into the Free States. The framers inserted, without much recorded debate, the duty to render up the slave, but left unstated the legal circumstances under which the rendering up was to occur, giving the congress no power to legislate the legal circumstances. In essence, assuming Sutliff's reasoning is correct, the states, themselves, agreed that the procedure to follow in the rendering up must conform to the requirements of the Fifth and Seventh amendments which require due process and a jury trial. This did not happen in Bushnell's case: the fugitive was arrested by a Federal commissioner and turned over to an Ohio sheriff, who brought him before a state judge, who found he was a fugitive slave without trial. (Of course, these two elements were introduced into the Constitution after it was ratified by the States, which means that at the time of ratification there were no constitutional procedures imposed on the States.)

And then the war came

Joe Ryan