Mike Maharrey
Michael Maharrey is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of '98 - Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty.

On Sept. 18, 1850 President Millard Fillmore signed the Fugitive Slave Act of 1850 into law, setting the stage for wildly successful nullification efforts by northern states.

The Fugitive Slave Act set up a legal structure to facilitate the capture of runaway slaves and their return to their “owners.” Abolitionists dubbed it “Bloodhound Law.” It significantly expanded the provisions of the Fugitive Slave Act of 1793 and was extremely unpopular in northern states.

The law erased any semblance of due process for an accused runaway slave. A white man could basically drag a black man or woman into slavery on the power of his word. Accused runaways weren’t even allowed to testify in their own defense.

“In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence; and the certificates in this and the first [fourth] section mentioned, shall be conclusive of the right of the person or persons in whose favor granted, to remove such fugitive to the State or Territory from which he escaped, and shall prevent all molestation of such person or persons by any process issued by any court, judge, magistrate, or other person whomsoever.”

Any person aiding an accused fugitive slave was subject to federal charges that could result in a $1,000 fine (about $30,000 today) or even jail time.

“That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months.”

The law also empowered marshalls “to summon and call to their aid the bystanders” in order to capture and hold an accused fugitive slave. In effect, a federal marshall and their deputies could force anybody into serving as a slave-catcher, even against their will.

Was It Constitutional?

The Fugitive Slave Act of 1850 featured several constitutionally dubious provisions.

Supporters of the act justified it based on  Article IV Sec. 2 Clause 3 of the Constitution.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

On the surface, they appear to stand on solid ground. The Constitution clearly required the return of runaway slaves. But that clause does not override the Bill of Rights — specifically the Fifth Amendment.

The most glaring constitutional problem with the Fugitive Slave Act of 1850 was its denial of due process. A fugitive was to be returned south on the word of any white person. The accused was not even allowed to present evidence in his own defense. Under the Fugitive Slave Act, accused runaway slaves had no recourse. They started under the presumption of guilt, and the process made it impossible to prove otherwise. This clearly violates the Fifth Amendment.

No person shall be…deprived of life, liberty, or property, without due process of law.

Unless you want to argue black people weren’t “persons,” (and this is pretty much what the federal courts ultimately did) an accused fugitive had a right to an actual trial. As it stood, the Fugitive Slave Act stripped all rights from a black person on the mere presumption he was a slave. He was presumed guilty and had no way to prove himself innocent.

There were numerous documented cases of free blacks being captured in the North and drug into slavery under the act.

There were also constitutional issues with a provision in the act that vested commissioners and magistrates with judicial power to issue certificates of removal. It effectively gave them power to judge cases and render verdicts. But The Constitution vests judicial authority “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The fugitive slave act granted judicial power to court-appointed commissioners.

These officers generally handled arrests and bail, and they were not judges. Abolitionists argued they were never intended to wield actually judicial authority and that the Fugitive Slave Act of 1850 violated Art 3 Sec. 1 of the Constitution. While certainly a murkier legal argument than due process, abolitionist lawyers did make a case that the Fugitive Slave Act improperly vested judicial powers in lesser officers.

Resistance

Abolitionists didn’t stop at making legal arguments opposing the Fugitive Slave Act of 1850. Northern states actively worked to undermine enforcement of the act by passing Personal Liberty Laws that prohibited state cooperation with federal agents, punished state officers who served as fugitive slave commissioners and in some cases subjected anybody capturing an accused fugitive to kidnapping charges.

For instance, the Michigan legislature passed its personal liberty law in 1855. The Michigan Personal Freedom Act guaranteed any man or woman claimed as a fugitive slave, “all the benefits of the writ of habeas corpus and of trial by jury.” It also prohibited the use of state or local jails for holding an accused fugitive slave, and made it a crime punishable by a fine of $500 to $1,000. Finally, it made any attempt to send a freedman South into slavery a crime.

Every person who shall wrongfully and maliciously seize, or procure to be seized, any free person entitled to freedom, with intent to have such person held in slavery, shall pay a fine of not less than five hundred nor more than one thousand dollars, and be imprisoned five years in the State Prison.

The prohibition on using state jails for holing accused fugitives created a significant logistical problem for slave catchers as there were no federal prisons at that time.

Vermont also guaranteed jury trials for accused runaway slaves. The legislature passed the Habeas Corpus Law just two months after the enactment of the Fugitive Slave Act. As the Vermont Digger put it, the law “made it nearly impossible to enforce the federal law in Vermont.” The Vermont statute required the state’s attorneys to “use all lawful means to protect, defend, and procure to be discharged” anyone who had been “arrested or claimed as a fugitive slave.” It guaranteed any accused fugitive a habeas corpus hearing before a state judge.  If the judge failed to release the accused, the defendant had the right to a trial by jury, with the state covering the costs.

Vermont passed an even more aggressive law in 1858.  “An Act to Secure Freedom to All Persons Within this State” declared that any slave reaching the state was deemed to be free and that anyone attempting to hold such would be subject to criminal kidnapping charges with a possible sentence of up to 15 years in prison.

Massachusetts Act called for the removal of any state official who aided in the return of runaway slaves and disbarment of attorneys assisting in fugitive slave rendition. Another section authorized impeachment of state judges who accepted federal commissioner positions authorizing them to prosecuted fugitive slaves.

Any person holding any judicial office under the constitution or laws of this Commonwealth, who shall continue, for ten days after the passage of this act, to hold the office of United States commissioner, or any office…which qualifies him to issue any warrant or other process…under the [Fugitive Slave Acts] shall be deemed to have violated good behavior, to have given reason for the loss of public confidence, and furnished sufficient ground either for impeachment or for removal by address.

The Act to Protect the Rights and Liberties of the People of the Commonwealth of Massachusetts also provided criminal penalties for any person who removed a fugitive slave from the state without proving his or her servitude in a state court under the criteria set up by the act – no easy task. And like the Michigan Act, the Massachusetts law did not exempt federal agents.

After passage, there is no record of a fugitive slave ever being returned from Massachusetts.

The Ohio legislature took a slightly different tack. In 1857, it passed An Act to Prevent Kidnapping“Forcibly or fraudulently carrying off” a free black person or mulatto would get you three to eight years of hard labor. Anybody trying to take an escaped slave out of Ohio was subject to the same charges if they failed to go to the proper court and prove “ownership.”

Northern efforts to nullify the Fugitive Slave Act were so successful, several Confederate states specifically mentioned it in their declaration of causes for secession. South Carolina listed northern nullification of fugitive slave laws as its first complaint.

“An increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them.”

There are two important lessons here.

  1. The federal government actively supported slavery. Centralized power was not a friend to African Americans.
  2. State and local resistance can make federal laws nearly impossible to enforce.

The enactment of the Fugitive Slave Act of 1850 was an ugly moment in American history and a travesty for personal liberty. But northern resistance to the act proves that we don’t have to sit idly by when the federal government tramples our rights.

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