Early Laws and the U.S. Constitution
Even before the drafting and ratification of the Constitution, the problems associated with the treatment of escaped enslaved people had been recognized in a variety of different contexts. For example, the Articles of Confederation of the United Colonies of New England, adopted in 1643, required that any runaway servant “shalbe delivered either to his Master or any other that pursues and brings such Certificate or proofe.” Similarly, although the Northwest Ordinance banned slavery in much of the territory west of the Appalachians, it also provided for the return of fugitives who escaped into those territories.
The Constitutional Convention of 1787 first considered the issue of fugitive enslaved people after already agreeing to a provision by which states would extradite fugitives from justice. On August 28, 1787, Pierce Butler and Charles Pinckney of South Carolina moved to require “fugitive slaves and servants to be delivered up like criminals.” Subsequent discussion included a complaint about the public cost of such a measure and the statement, by Roger Sherman of Connecticut, that there was “no more propriety in the public seizing and surrendering a slave or a servant than a horse.” Nonetheless, the following day the delegates unanimously adopted a Fugitive Slave Clause, and an amended version of the clause was also approved without objection on September 15.
As ratified, article 4, section 2, paragraph 3 of the U.S. Constitution forbade free states from emancipating enslaved people who escaped from states where slavery was legal, and also mandated that escaped enslaved people “shall be delivered up on the claim of the [the slaveowner].” At the convention, all of the delegates seemed to understand that disputes over fugitive enslaved people might create sectional tensions that could threaten the stability of the union. The Fugitive Slave Clause was apparently designed to forestall that possibility.
The Fugitive Slave Clause was modeled on the Extradition Clause, making state governments the primary actors when dealing with runaways. The state in which the runaway was captured was obligated to deliver the enslaved person to the state from which he or she had fled. While in criminal cases public order was at stake, in fugitive-slave cases enslavers stood to lose valuable property, making such situations both more legally complex and ripe for abuse. Southerners potentially could make false claims, while free-state governments might be motivated to evade their constitutional obligations in order to protect free Blacks from kidnapping.
Fugitive Slave Act of 1793
Not long after the Constitution was ratified, Congress passed the Fugitive Slave Act of 1793. Inspiration for the law came from a case involving an enslaved man named John Davis, whose Virginia enslaver found himself living in Pennsylvania when the states’ boundaries were finalized in 1779. The next year Pennsylvania passed the Gradual Emancipation Act, requiring that men such as Davis’s enslaver register their enslaved people by a certain date or they would become immediately free. Davis was never registered, making him free according to Pennsylvania law, if not in practice.
In 1788, Davis was hired out to a Mr. Miller in Virginia, only to be found by a group of antislavery Pennsylvanians and returned to that state. Miller then hired three Virginia men to capture his enslaved person, which they did in May 1788. Soon after, Davis was sold to a man in eastern Virginia. In November 1788 a Pennsylvania court indicted the three Virginians for kidnapping, but Virginia governor Beverley Randolph, in July 1791, refused a request for their extradition.
In the wake of this case, and at the request of President George Washington, Congress sought to establish procedures by which an enslaver might vindicate his right to reclaim a fugitive. Under the 1793 statute, signed into law on February 12, an enslaver or his agent was “empowered to seize or arrest [the] fugitive from labour” and bring him before a federal judge “or any magistrate of a county, city or town corporate” where the fugitive had been found. Upon “proof to the satisfaction of the official,” which could be provided by either affidavit or oral testimony, the official was required to issue a certificate that authorized the claimant to remove the alleged fugitive from the state in which he or she was found. Anyone convicted of concealing a runaway or interfering in his apprehension was subject to a $500 fine, payable not to the state or federal government but to the enslaved person’s enslaver.
Neither side was completely satisfied with the legislation. Some southerners worried that the rights of enslavers were insufficiently protected, while some northerners believed that the law still left free Blacks vulnerable to kidnapping. As a result, many free states adopted so-called personal liberty laws, which required enslavers to follow a variety of procedures before removing any alleged fugitive from the state.
Commonwealth v. Griffith (1823)
The constitutionality of the Fugitive Slave Act of 1793 was challenged in a case involving a Virginia enslaved man named William Mason. Enslaved by Edgar McCarty and living near Alexandria, Mason ran away to New Bedford, Massachusetts, where he lived for four years, married, and possibly had a child. At some point, he changed his name to John Randolph. After McCarty’s death, his estate hired Camillus Griffith to find and return Randolph. In November 1822, Griffith traveled to New Bedford, where he seized, allegedly beat, and confined Randolph, and then sought a certificate of removal by which he could transport Randolph back to Virginia. Rather than receive a certificate, however, Griffith was arrested, tried, and convicted for false imprisonment and assault and battery. Randolph, meanwhile, reportedly traveled to New York and then to Barbados.
Griffith appealed his conviction to Massachusetts’s Supreme Judicial Court, arguing that he had been well within his rights, under the Fugitive Slave Act of 1793, to capture Randolph. The state’s lawyers countered, arguing that this right, while afforded by the law, was unconstitutional because it violated the Fourth Amendment. Griffith’s attorney responded that “the clause against unreasonable searches and seizures does not protect a slave,” and that the law’s demand for proof of ownership provided sufficient protection for free Blacks.
The court agreed with Griffith. A majority of justices concluded that because the Fugitive Slave Clause in the Constitution did not describe the procedures by which fugitive enslaved people would be captured and returned to their enslavers, it was up to Congress to fill in the details, and that if an accused fugitive claimed to be free, then an appearance in court was sufficient to determine the truth. Chief Justice Isaac Parker emphasized that the U.S. Constitution represented a compromise between free and slave states. “It was a compact by which we all are bound,” he wrote. Justice George Thatcher dissented, arguing that the laws of Massachusetts did not recognize slavery, making all people within the state’s borders free. Eventually, Massachusetts law would stipulate that only fugitives could be considered enslaved, and that all others became free upon entering the state.
Prigg v. Pennsylvania (1842)
Pennsylvania’s highest court issued a decision similar to Massachusetts’s, upholding the Fugitive Slave Act of 1793, but a New Jersey judge ruled the law unconstitutional and the New York courts were split. In 1842 the U.S. Supreme Court sought to clarify the constitutional issues related to fugitive enslaved people. Prigg v. Pennsylvania revolved around the status of Margaret Morgan, an enslaved woman whose Maryland owner had informally stated that he had set her free; when he died, however, his estate demanded that she return from her new home in York County, Pennsylvania. In February 1837, a party of four slave catchers, including Edward Prigg, captured Morgan and returned her to Maryland. She lost a suit for her freedom and she and her children were sold.
The incident led to a dispute between the governments of Pennsylvania and Maryland, and in 1838 Maryland formed a commission to work with its neighbor to prepare a case for review by the Supreme Court. On May 23, 1839, Pennsylvania authorized a pro forma trial by which Prigg was found guilty of kidnapping and his case appealed to the Supreme Court.
In Prigg v. Commonwealth of Pennsylvania, decided March 1, 1842, the court determined that enslavers had a constitutional right to attempt to reclaim their own escaped enslaved people, and also upheld the constitutionality of most of the Fugitive Slave Act of 1793. Associate Judge Joseph Story, of Massachusetts, wrote the opinion and argued that the Constitution’s Fugitive Slave Clause was so fundamental to the protection of southern interests and property that its absence “would have created the most bitter animosities, and engendered perpetual strife between the different states.” This particular compromise, in other words, was fundamental to maintaining the union.
The Prigg decision was not entirely favorable to enslavers, however. The justices concluded that Congress did not have the authority to require state officials to participate in the rendition of fugitive enslaved people. Because of different states’ attitudes toward slavery, only the federal government could uniformly enforce the law. In response, Massachusetts and a number of other northern states passed laws prohibiting state officials from aiding in the recovery of fugitive enslaved people.
Fugitive Slave Act of 1850
Faced with increasing difficulty in recovering escaped enslaved people, southerners successfully pressed for the passage of a strengthened Fugitive Slave Act as part of the Compromise of 1850. Ironically, one of the bill’s chief supporters was Senator Daniel Webster, of Massachusetts, a longtime foe of slavery. Believing that compromise was the foundation of union, he told the Senate, “The principle of the restitution of fugitive slaves is not objectionable unless the Constitution is objectionable.” During debate on the bill, Senator Salmon Chase, of Ohio, argued that if a jury trial were allowable in “the most ordinary controversy involving a contested claim to twenty dollars,” then it should be when a man or woman’s liberty were at stake. An amendment to that effect failed, however.
As passed, the Fugitive Slave Act of 1850 provided for the appointment of a greatly expanded number of federal officials empowered to act as commissioners for the purpose of issuing certificates of removal, and also charged those officials with the duty of hearing claims of putative enslavers “in a summary manner.” Upon receiving “satisfactory proof” of the validity of the claimant’s assertion of ownership—defined as either a sworn statement taken by the responsible official himself or a document certifying that appropriate testimony had been given before an official in the state from which the alleged escape had occurred—the federal commissioner was to issue a certificate for removal of the alleged fugitive.
Attempts to enforce the new Fugitive Slave Act met with only mixed success. Presciently, Senator David L. Yulee, of Florida, had argued before the Senate that the bill represented a “phantasmagorian” dream that could not possibly be enforced in the abolitionist North. As if on cue, the antislavery community in Massachusetts foiled an attempt to reclaim the well-known fugitive enslaved people Ellen and William Craft just months after the bill was signed, and the following year an armed crowd stormed the courthouse in Boston and rescued Shadrach Minkins, a runaway from Norfolk, Virginia. Minkins eventually fled to Montreal. But when Thomas Sims, an escaped enslaved man from Georgia, was seized in Boston later in 1851, government authorities took steps to ensure that the Minkins rescue would not be repeated. The courthouse was barricaded and placed under the protection of heavily armed guards during the hearing to determine whether Sims should be returned to slavery. After the Supreme Judicial Court of Massachusetts rejected a challenge to the constitutionality of the Fugitive Slave Act itself, Sims was ordered returned to the custody of his former enslaver.
Anthony Burns in Boston
Fugitive slave laws, from the 1640s through the 1850s, had always been exercises in compromise. As sectional differences hardened, compromise became less possible, so that the next challenge to the Fugitive Slave Act would not be fought in the courtroom but on the battlefield.