Читать книгу: «Thirty Years' View (Vol. II of 2)», страница 134

CHAPTER CXCVII.
FUGITIVE SLAVES – ORDINANCE OF 1787: THE CONSTITUTION: ACT OF 1793: ACT OF 1850

It is of record proof that the anti-slavery clause in the ordinance of 1787, could not be passed until the fugitive slave recovery clause was added to it. That anti-slavery clause, first prepared in the Congress of the confederation by Mr. Jefferson in 1784, and rejected, remained rejected for three years – until 1787; when receiving the additional clause for the recovery of fugitives, it was unanimously passed. This is clear proof that the first clause, prohibiting slavery in the Northwest territory, could not be obtained without the second, authorizing the recovery of slaves which should take refuge in that territory. It was a compromise between the slave States and the free States, unanimously agreed to by both parties, and founded on a valuable consideration – one preventing the spread of slavery over a vast extent of territory, the other retaining the right of property in the slaves which might flee to it. Simultaneously with the adoption of this article in the ordinance of 1787 was the formation of the constitution of the United States – both formed at the same time, in neighboring cities, and (it may be said) by the same men. The Congress sat in New York – the Federal Convention in Philadelphia – and, while the most active members of both were members of each, as Madison and Hamilton, yet, from constant interchange of opinion, the members of both bodies may be assumed to have worked together for a common object. The right to recover fugitive slaves went into the constitution, as it went into the ordinance, simultaneously and unanimously; and it may be assumed upon the facts of the case, and all the evidence of the day, that the constitution, no more than the ordinance, could have been formed without the fugitive slave recovery clause contained in it. A right to recover slaves is not only authorized by the constitution, but it is a right without which there would have been no constitution, and also no anti-slavery ordinance.

One of the early acts of Congress, as early as February, '93, was a statute to carry into effect the clause in the constitution for the reclamation of fugitives from justice, and fugitives from labor; and that statute, made by the men who made the constitution, may be assumed to be the meaning of the constitution, as interpreted by men who had a right to know its meaning. That act consisted of four sections, all brief and clear, and the first two of which exclusively applied to fugitives from justice. The third and fourth applied to fugitives from labor, embracing apprentices as well as slaves, and applying the same rights and remedies in each case: and of these two, the third alone contains the whole provision for reclaiming the fugitive – the fourth merely containing penalties for the obstruction of that right. The third section, then, is the only one essential to the object of this chapter, and is in these words:

"That when a person held to labor in any of the United States, or in either of the territories on the north-west, or south of Ohio, under the laws thereof, shall escape into any other of said States or territories, the person to whom such labor is due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony, or affidavit taken before and certified by a magistrate of any such State or territory, that the person so seized and arrested, doth under the laws of the State or territory from which he or she fled, owe service to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labor, to the State or territory from which he or she fled."

This act was passed on the recommendation of President Washington, in consequence of a case having arisen between Pennsylvania and Virginia, which showed the want of an act of Congress to carry the clause in the constitution into effect. It may be held to be a fair interpretation of the constitution, and by it the party claiming the service of the fugitive in any State or territory, had the right to seize his slave wherever he saw him, and to carry him before a judicial authority in the State; and upon affidavit, or oral testimony, showing his right, he was to receive a certificate to that effect, by virtue of which he might carry him back to the State from which he had fled. This act, thus fully recognizing the right of the claimant to seize his slave by mere virtue of ownership, and then to carry him out of the State upon a certificate, and without a trial, was passed as good as unanimously by the second Congress which sat under the constitution – the proceedings of the Senate showing no division, and in the House only seven voting against the bill, there being no separate vote on the two parts of it, and two of these seven from slave States (Virginia and Maryland). It does not appear to what part these seven objected – whether to the fugitive slave sections, or those which applied to fugitives from justice. Such unanimity in its passage, by those who helped to make the constitution, was high evidence in its favor: the conduct of the States, and both judiciaries, State and federal, were to the same effect. The act was continually enforced, and the courts decided that this right of the owner to seize his slave, was just as large in the free State to which he had fled as in the slave State from which he had run away – that he might seize, by night as well as by day, of Sundays as well as other days; and, also, in a house, provided no breach of the peace was committed. The penal section in the bill was clear and heavy, and went upon the ground of the absolute right of the master to seize his slave by his own authority wherever he saw him, and the criminality of any obstruction or resistance in the exercise of that right. It was in these words:

"That any person who shall knowingly and wilfully obstruct or hinder such claimant, his agent or attorney, in so seizing or arresting such fugitive from labor, or shall rescue such fugitive from such claimant, his agent or attorney, when so arrested pursuant to the authority herein given or declared; or shall harbor or conceal such person after notice that he or she was a fugitive from labor as aforesaid, shall, for either of the said offences, forfeit and pay the sum of five hundred dollars. Which penalty may be recovered by and for the benefit of such claimant, by action of debt in any court proper to try the same, saving moreover to the person claiming such labor or service his right of action for or on account of the said injuries, or either of them."

State officers, the magistrates and judges, though not bound to act under the law of Congress, yet did so; and State jails, though not obligatory under a federal law, were freely used for the custody of the re-captured fugitive. This continued till a late day in most of the free States – in all of them until after the Congress of the United States engaged in the slavery agitation – and in the great State of Pennsylvania until the 20th of March, 1847: that is to say, until a month after the time that Mr. Calhoun brought into the Senate the slavery resolutions, stigmatized by Mr. Benton as "fire-brand," at the moment of their introduction, and which are since involving the Union in conflagration. Then Pennsylvania passed the act forbidding her judicial authorities to take cognizance of any fugitive slave case – granted a habeas corpus remedy to any fugitive arrested – denying the use of her jails to confine any one – and repealing the six months' slave sojourning law of 1780.

Some years before the passage of this harsh act, and before the slavery agitation had commenced in Congress, to wit, 1826 (which was nine years before the commencement of the agitation), Pennsylvania had passed a most liberal law of her own, done upon the request of Maryland, to aid the recovery of fugitive slaves. It was entitled, "An act to give effect to the Constitution of the United States in reclaiming fugitives from justice." Such had been the just and generous conduct of Pennsylvania towards the slave States until up to the time of passing the harsh act of 1847. Her legal right to pass that act is admitted; her magistrates were not bound to act under the federal law – her jails were not liable to be used for federal purposes. The sojourning law of 1780 was her own, and she had a right to repeal it. But the whole act of '47 was the exercise of a mere right, against the comity which is due to States united under a common head, against moral and social duty, against high national policy, against the spirit in which the constitution was made, against her own previous conduct for sixty years; and injurious and irritating to the people of the slave States, and parts of it unconstitutional. The denial of the intervention of her judicial officers, and the use of her prisons, though an inconvenience, was not insurmountable, and might be remedied by Congress; the repeal of the act of 1780 was the radical injury and for which there was no remedy in federal legislation.

That act was passed before the adoption of the constitution, and while the feelings of conciliation, good will, and entire justice, prevailed among the States; it was allowed to continue in force near sixty years after the constitution was made; and was a proof of good feeling towards all during that time. By the terms of this act, a discrimination was established between sojourners and permanent residents, and the element of time – the most obvious and easy of all arbiters – was taken for the rule of discrimination. Six months was the time allowed to discriminate a sojourner from a resident; and during that time the rights of the owner remained complete in his slave; after the lapse of that time, his ownership ceased. This six months was equally in favor of all persons; but there was a further and indefinite provision in favor of members of Congress, and of the federal government, all of whom, coming from slave States, were allowed to retain their ownership as long as their federal duties required them to remain in the State. Such an act was just and wise, and in accordance with the spirit of comity which should prevail among States formed into a Union, having a common general government, and reciprocating the rights of citizenship. It is to be deplored that any event ever arose to occasion the repeal of that act. It is to be wished that a spirit would arise to re-enact it; and that others of the free States should follow the example. For there were others, and several which had similar acts, and which have repealed them in like manner, as Pennsylvania – under the same unhappy influences, and with the same baleful consequences. New York, for example – her law of discrimination between the sojourner and the resident, being the same in principle, and still more liberal in detail, than that of Pennsylvania – allowing nine months instead of six, to determine that character.

This act of New York, like that of Pennsylvania, continued undisturbed in the State, until the slavery agitation took root in Congress; and was even so well established in the good opinion of the people of that State, as late as thirteen years after the commencement of that agitation, as to be boldly sustained by the candidates for the highest offices. Of this an eminent instance will be given in the canvass for the governorship of the State, in the year 1838. In that year Mr. Marcy and Mr. Seward were the opposing candidates, and an anti-slavery meeting, held at Utica, passed a resolve to have them interrogated (among other things) on the point of repealing the slave sojournment act. Messrs. Gerritt Smith, and William Jay, were nominated a committee for that purpose, and fulfilled their mission so zealously as rather to overstate the terms of the act, using the word "importation" as applied to the coming of these slaves with their owners, thus: "Are you in favor of the repeal of the law which now authorizes the importation of slaves into this State, and their detention here as such for the time of nine months?" Objecting to the substitution of the term importation, and stating the act correctly, both the candidates answered fully in the negative, and with reasons for their opinion. The act was first quoted in its own terms, as follows:

"Any person, not being an inhabitant of this State, who shall be travelling to or from, or passing through this State, may bring with him any person lawfully held by him in slavery, and may take such person with him from this State; but the person so held in slavery shall not reside or continue in this State more than nine months; and if such residence be continued beyond that time, such person shall be free."

Replying to the interrogatory, Mr. Marcy then proceeds to give his opinion and reasons in favor of sustaining the act, which he does unreservedly:

"By comparing this law with your interrogatory, you will perceive at once that the latter implies much more than the former expresses. The discrepancy between them is so great, that I suspected, at first, that you had reference to some other enactment which had escaped general notice. As none, however, can be found but the foregoing, to which the question is in any respect applicable, there will be no mistake, I presume, in assuming it to be the one you had in view. The deviation, in putting the question, from what would seem to be the plain and obvious course of directing the attention to the particular law under consideration, by referring to it in the very terms in which it is expressed, or at least in language showing its objects and limitations, I do not impute to an intention to create an erroneous impression as to the law, or to ascribe to it a character of odiousness which it does not deserve; yet I think that it must be conceded that your question will induce those who are not particularly acquainted with the section of the statute to which it refers, to believe that there is a law of this State which allows a free importation of slaves into it, without restrictions as to object, and without limitation as to the persons who may do so; yet this is very far from being true. This law does not permit any inhabitant of this State to bring into it any person held in slavery, under any pretence or for any object whatsoever; nor does it allow any person of any other State or country to do so, except such person is actually travelling to or from, or passing through this State. This law, in its operation and effect, only allows persons belonging to States or nations where domestic slavery exists, who happen to be travelling in this State, to be attended by their servants whom they lawfully hold in slavery when at home, provided they do not remain within our territories longer than nine months. The difference between it and the one implied by your interrogatory is so manifest, that it is perhaps fair to presume, that if those by whose appointment you act in this matter had not misapprehended its character, they would not have instructed you to make it the subject of one of your questions. It is so restricted in its object, and that is so unexceptionable, that it can scarcely be regarded as obnoxious to well-founded objections when viewed in its true light. Its repeal would, I apprehend, have an injurious effect upon our intercourse with some of the other States, and particularly upon their business connection with our commercial emporium. In addition to this, the repeal would have a tendency to disturb the political harmony among the members of our confederacy, without producing any beneficial results to compensate for these evils. I am not therefore in favor of it."

This is an explicit answer, meeting the interrogatory with a full negative, and impliedly rebuking the phrase "importation," by supposing it would not have been used if the Utica convention had understood the act. Mr. Seward answered in the same spirit, and to the same effect, only giving a little more amplitude to his excellent reasons. He says:

"Does not your inquiry give too broad a meaning to the section? It certainly does not confer upon any citizen of a State, or of any other country, or any citizen of any other State, except the owner of slaves in another State by virtue of the laws thereof, the right to bring slaves into this State or detain them here under any circumstances as such. I understand your inquiry, therefore to mean, whether I am in favor of a repeal of the law which declares, in substance, that any person from the southern or south-western States, who may be travelling to or from or passing thrugh the State, may bring with him and take with him any person lawfully held by him in slavery in the State from whence he came, provided such slaves do not remain here more than nine months. The article of the constitution of the United States which bears upon the present question, declares that no person held to service or labor in one State, under the laws thereof, escaping to another State, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but such persons shall be delivered up on claim of the party to whom such service or labor may be due. I understand that, in the State of Massachusetts, this provision of the constitution has been decided by the courts not to include the case of a slave brought by his master into the State, and escaping thence. But the courts of law in this State have uniformly given a different construction to the same article of the constitution, and have always decided that it does embrace the case of a slave brought by his master into this State, and escaping from him here. Consequently, under this judicial construction of the constitution, and without, and in defiance of any law or regulation of this State, if the slave escape from his master in this State, he must be restored to him, when claimed at any time during his master's temporary sojournment within the State, whether that sojournment be six months, nine months, or longer. It is not for me to say that this decision is erroneous, nor is it for our legislature. Acting under its authority, they passed the law to which you object, for the purpose, not of conferring new powers or privileges on the slave-owner, but to prevent his abuse of that which the constitution of the United States, thus expounded, secures to him. The law, as I understand it, was intended to fix a period of time as a test of transient passage through, or temporary residence in the State, within the provisions of the constitution. The duration of nine months is not material in the question, and if it be unnecessarily long, may and ought to be abridged. But, if no such law existed, the right of the master (under the construction of the constitution before mentioned) would be indefinite, and the slave must be surrendered to him in all cases of travelling through, or passage to or from the State. If I have correctly apprehended the subject, this law is not one conferring a right upon any person to import slaves into the State, and hold them here as such; but is an attempt at restriction upon the constitutional right of the master; a qualification, or at least a definition of it, and is in favor of the slave. Its repeal, therefore, would have the effect to put in greater jeopardy the class of persons you propose to benefit by it. While the construction of the constitution adopted here is maintained, the law, it would seem, ought to remain upon our statute book, not as an encroachment upon the rights of man, but a protection for them.

"But, gentlemen, being desirous to be entirely candid in this communication, it is proper I should add, that I am not convinced it would be either wise, expedient or humane, to declare to our fellow-citizens of the southern and south-western States, that if they travel to or from, or pass through the State of New York, they shall not bring with them the attendants whom custom, or education, or habit, may have rendered necessary to them. I have not been able to discover any good object to be attained by such an act of inhospitality. It certainly can work no injury to us, nor can it be injurious to the unfortunate beings held in bondage, to permit them, once perhaps in their lives, and at most, on occasions few and far between, to visit a country where slavery is unknown. I can even conceive of benefits to the great cause of human liberty, from the cultivation of this intercourse with the South. I can imagine but one ground of objection, which is, that it may be regarded as an implication that this State sanctions slavery. If this objection were well grounded, I should at once condemn the law. But, in truth, the law does not imply any such sanction. The same statute which, in necessary obedience to the constitution of the United States as expounded, declares the exception, condemns, in the most clear and definite terms, all human bondage. I will not press the considerations flowing from the nature of our Union, and the mutual concessions on which it was founded, against the propriety of such an exclusion as your question contemplates, apparently for the purpose only of avoiding an implication not founded in fact, and which the history of our State so nobly contradicts. It is sufficient to say that such an exclusion could have no good effect practically, and would accomplish nothing in the great cause of human liberty."

These answers do not seem to have affected the election in any way. Mr. Seward was elected, each candidate receiving the full vote of his party. Since that time the act has been repealed, and no voice has yet been raised to restore it. Just and meritorious as were the answers of Messrs. Marcy and Seward in favor of sustaining the sojourning act, their voice in favor of its restoration would be still more so now. It was a measure in the very spirit of the constitution, and in the very nature of a union, and in full harmony with the spirit of concession, deference and good-will in which the constitution was founded. Several other States had acts to the same effect, and the temper of the people in all the free States was accordant. It was not until after the slavery question became a subject of political agitation, in the national legislature, that these acts were repealed, and this spirit destroyed. Political agitation has done all the mischief.

The act of Pennsylvania, of March 3d, 1847, besides repealing the slave sojournment act of 1780 – (an act made in the time of Dr. Franklin, and which had been on her statute-book near seventy years), besides repealing her recent act of 1826, and besides forbidding the use of her prisons, and the intervention of her officers in the recovery of fugitive slaves – besides all this, went on to make positive enactments to prevent the exercise of the rights of forcible recaption of fugitive slaves, as regulated by the act of Congress, under the clause in the constitution; and for that purpose contained this section:

"That if any person or persons claiming any negro or mulatto, as fugitive from servitude or labor, shall, under any pretence of authority whatever, violently and tumultuously seize upon and carry away in a riotous, violent, and tumultuous manner, and so as to disturb and endanger the public peace, any negro or mulatto within this commonwealth, either with or without the intention of taking such negro or mulatto before any district or circuit judge, the person or persons so offending against the peace of this commonwealth, shall be deemed guilty of a misdemeanor; and on conviction thereof, shall be sentenced to pay a fine of not less than one hundred nor more than two thousand dollars; and, further, be confined in the county jail for any period not exceeding three months, at the discretion of the court."

The granting of the habeas corpus writ to any fugitive slave completed the enactments of this statute, which thus carried out, to the full, the ample intimations contained in its title, to wit: "An act to prevent kidnapping, preserve the public peace, prohibit the exercise of certain powers heretofore exercised by judges, justices of the peace, aldermen, and jailers in this commonwealth; and, to repeal certain slave laws." This act made a new starting-point in the anti-slavery movements North, as the resolutions of Mr. Calhoun, of the previous month, made a new starting-point in the pro-slavery movements in the South. The first led to the new fugitive slave recovery act of 1850 – the other has led to the abrogation of the Missouri Compromise line; and, between the two, the state of things has been produced which now afflicts and distracts the country, and is working a sectional divorce of the States.

A citizen of Maryland, acting under the federal law of '93, in recapturing his slave in Pennsylvania, was prosecuted under the State act of 1826 – convicted – and sentenced to its penalties. The constitutionality of this enactment was in vain plead in the Pennsylvania court; but her authorities acted in the spirit of deference and respect to the authorities of the Union, and concurred in an "agreed case," to be carried before the Supreme Court of the United States, to test the constitutionality of the Pennsylvania law. That court decided fully and promptly all the points in the case, and to the full vindication of all the rights of a slaveholder, under the recaption clause in the constitution. The points decided cover the whole ground, and, besides, show precisely in what particular the act of 1793 required to be amended, to make it work out its complete effect under the constitution, independent of all extrinsic aid. The points were these:

"The provisions of the act of 12th of February, 1793, relative to fugitive slaves, is clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority on State magistrates, is free from reasonable doubt or difficulty. As to the authority so conferred on State magistrates, while a difference of opinion exists, and may exist on this point, in different States, whether State magistrates are bound to act under it, none is entertained by the court, that State magistrates may, if they choose, exercise that authority, unless forbid by State legislation." "The power of legislation in relation to fugitives from labor is exclusive in the national legislature." "The right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever State of the Union they may be found, is under the constitution recognized as an absolute, positive right and duty, pervading the whole Union with an equal and supreme force, uncontrolled and uncontrollable by State sovereignty or State legislation. The right and duty are co-extensive and uniform in remedy and operation throughout the whole Union. The owner has the same exemption from State regulations and control, through however many States he may pass with the fugitive slaves in his possession in transitu to his domicil." "The act of the legislature of Pennsylvania, on which the indictment against Edward Prigg was founded, for carrying away a fugitive slave, is unconstitutional and void. It purports to punish, as a public offence against the State, the very act of seizing and removing a slave by his master, which the constitution of the United States was designed to justify and uphold." "The constitutionality of the act of Congress (1793), relating to fugitives from labor, has been affirmed by the adjudications of the State tribunals, and by those of the courts of the United States."

This decision of the Supreme Court – so clear and full – was further valuable in making visible to the legislative authority what was wanting to give efficacy to the act of 1793; it was nothing but to substitute federal commissioners for the State officers forbidden to act under it; and that substitution might have been accomplished in an amendatory bill of three or four lines – leaving all the rest of the act as it was. Unfortunately Congress did not limit itself to an amendment of the act of 1793; it made a new law – long and complex – and striking the public mind as a novelty. It was early in the session of 1849-'50 that the Judiciary Committee of the Senate reported a bill on the subject; it was a bill long and complex, and distasteful to all sides of the chamber, and lay upon the table six months untouched. It was taken up in the last weeks of a nine months' session, and substituted by another bill, still longer and more complex. This bill also was very distasteful to the Senate (the majority), and had the singular fate of being supported in its details, and passed into law, with less than a quorum of the body in its favor, and without ever receiving the full senatorial vote of the slave States. The material votes upon it, before it was passed, were on propositions to give the fugitive a jury trial, if he desired it, upon the question of his condition – free or slave; and upon the question of giving him the benefit of the writ of habeas corpus. The first of these propositions originated with Mr. Webster, but was offered in his absence by Mr. Dayton, of New Jersey. He (Mr. Webster) drew up a brief bill early in the session, to supply the defect found in the working of the act of '93; it was short and simple; but it contained a proviso in favor of a jury trial when the fugitive denied his servitude. That would have been about always; and this jury trial, besides being incompatible with the constitution, and contradictory to all cases of proceeding against fugitives, would have been pretty sure to have been fatal to the pursuer's claim; and certainly both expensive and troublesome to him. It was contrary to the act of 1793, and contrary to the whole established course of reclaiming fugitives, which is always to carry them back to the place from which they fled to be tried. Thus, if a man commits an offence in one country, and flies to another, he is carried back; so, if he flies from one State to another; and so in all the extradition treaties between foreign nations. All are carried back to the place from which they fled, the only condition being to establish the flight and the probable cause; and that in the case of fugitives from labor, as well as from justice, both of which classes are put together in the constitution of the United States, and in the fugitive act of 1793. The proposition was rejected by a vote of eleven to twenty-seven. The yeas were: Messrs. Davis of Massachusetts, Dayton, Dodge of Wisconsin, Greene, Hamlin, Phelps, Smith, Upham, Walker of Wisconsin, and Winthrop. The nays were: Messrs. Atchison, Badger, Barnwell, Bell, Benton, Berrien, Butler, Cass, Davis of Mississippi, Dawson, Dodge of Iowa, Downs, Houston, Jones of Iowa, King, Mangum, Mason, Morton, Pratt of Maryland, Rusk, Sebastian, Soulé, Sturgeon, Turney, Underwood, Wales, Yulee. The motion in favor of granting the benefit of the writ of habeas corpus to the fugitive was made by Mr. Winthrop, and rejected by the same vote of eleven yeas and twenty-seven nays. Other amendments were offered and disposed of, and the question coming on the passing of the bill, Mr. Cass, in speaking his own sentiments in favor of merely amending the act of 1793, also spoke the sentiments of many others, saying: