Misrepresenting the 1850 Fugitive Slave Act

(September 23, 2019) Acolytes of historians Eric Foner and James McPherson often misinterpret the federal 1850 Fugitive Slave Act, which they consider an example of the South’s readiness to ignore states’ rights when it served the region’s interests. In reality, when Northern states flouted the law by falsely standing on the principle of states’ rights, they set an example of federal defiance that the South would later use to justify secession. To understand the controversy, begin with the 1789 Constitution.

The Constitution would never have been adopted unless it contained provisions to prevent slaves from escaping “slave” states as a way to obtain freedom in “free” states. Thus, Article Four, Section Two reads in part: “No [slave from one state] . . . escaping into another shall . . .  be discharged . . .[as a slave], but shall be delivered up . . . [to the slaveowner.]” Although the exact language is more wordy, the meaning is clear: Runaway slaves must be returned to slaveowners.

Senator Henry Clay (Lincoln’s Role Model) Proposing the 1850 Compromise

Four years later the Fugitive Slave Act of 1793 strengthen the Constitution’s fugitive slave clause. The ’93 Act authorized local governments to seize and return escaped slaves and penalized anyone who aided in their flight. Gradually select Northern states defied the ’93 Act by passing state laws that might imprison any slave-catcher that came into the state. Eventually the Supreme Court got involved. In the 1842 Prigg v. Pennsylvania eight-to-one decision the Court ruled that such state laws were unconstitutional. However, it also ruled that no state could be compelled to devote legal resources to enforce slave-catching. This necessitated a new law that would provide a federal apparatus for enforcement, partly because the alternative circuit courts would likely become overloaded with fugitive slave cases. Absent such changes, catching runaways would default to a private operation with, at best, sporadic regulatory oversight.

Consequently, the 1850 Fugitive Slave Law came into existence as part of the Compromise of 1850, which had two key provisions. First, it admitted California as a “free” state thereby shifting the power balance in the Senate to the “free” states. In contrast to the House of Representatives where the “free” states had long held a decisive numerical advantage, prior to California’s admission the Senate was evenly split between “free” and “slave” states, 15-to-15. California’s addition was a major Southern concession since four years later Oregon also joined as a “free” state, further tipping the Senate power balance to 17-free and 15-slave.

The second major part of the 1850 Compromise was the 1850 Fugitive Slave  Act, which was specifically designed to form the federal enforcement mechanism necessitated by Prigg v. Pennsylvania. The new Act required the federal circuit courts to appoint special commissioners to manage the process. Slave-catchers had to gain the applicable commissioner’s approval before returning a captured slave. Commissioners decided whether the captured person was an escaped slave, or free black. If judged to be a free black the captive was set free and if judged to be an escaped slave he (or she) was returned to the slaveholder. The extra paperwork required to return a runaway earned commissioners a $10 fee whereas they otherwise got $5.

Northerners soon reneged on the 1850 Compromise. In a number of instances mobs almost immediately defied the law during the capture and return processes. Eventually eight Northern states also passed personal liberty laws that penalized anyone who helped a slave-catcher.  They again invoked states rights as their authority even though such rights were only reserved for factors not enumerated in the Constitution. But the right to regain a runaway slave was explicitly stated in the Constitution. Even the legendary Massachusetts Senator Daniel Webster recognized the constitutional responsibility for the “free” states to comply when he addressed the Senate in 1850: “It is my judgement that the South is right . . . And the North is wrong. . . Every member of every northern legislature is bound by oath . . . to support the Constitution . . .  which says to these states that they shall deliver up fugitives . . . No man fulfills his duty in any legislature who sets himself up to find excuses, evasions, [and] escapes from this constitutional obligation.”

Due to such deliberate “excuses, evasions, and escapes,” by 1854 the Fugitive Slave Act was unenforceable in many parts of the country. Six months after the Supreme Court ruled against the personal liberty laws in 1859, Abraham Lincoln admitted to an Ohio audience, “We must not withhold an efficient fugitive slave law, because the constitution demands it.”

By then, however, some Northern states had gone too far. They  invoked nullification theory to justify their continued defiance even though Northerners derisively rejected nullification when South Carolina relied upon it some twenty years earlier in a tariff dispute. Consequently, the South lost faith that the North could be trusted to abide compromises and was instead set on gaining economic domination. As John C. Calhoun had warned over a decade earlier, by 1861 seven Cotton States concluded that Northern mendacity left self-determination as the only option to economic marginalization.

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