University of Virginia Library

CHAPTER IX

PROSECUTIONS OF UNDERGROUND RAILROAD MEN

The aversion to a law for the rendition of fugitive slaves
that early manifested itself in the North was perhaps foreshadowed
in the hesitating manner in which the question was
dealt with by Congress. The original demand for legislation
was caused by the activity of kidnappers in Pennsylvania; but
the first bill, reported from committee to the House in November,
1791, was dropped for some reason not now discoverable.
At the end of March in the following year a committee
of the Senate was appointed to consider the matter, but it
accomplished nothing. At the beginning of the next session
a second Senate committee was chosen, and from this body a
bill emanated. This bill proved to be unsatisfactory, however,
and after the committee had been remodelled by the
addition of two new members the bill was recommitted with
instructions to amend. With some slight change the measure
proposed by the committee was adopted by the Senate, January
18; and after an interval of nearly three weeks the
House passed it with little or no debate, by a vote of forty-eight
to seven. Thus for nearly a year and a quarter the
subject was under the consideration of Congress before it
could be embodied in a bill and sent to the executive for
his signature. On February 12, 1793, President Washington
signed this bill and it became a law.[1]

The object of the law was, of course, to enforce the constitutional
guarantee in regard to the delivery of fugitives from
service to their masters. An analysis of the law will show
that forcible seizure of the alleged fugitive was authorized;
that the decision of the magistrate before whom he was to be
taken was allowed to turn on the testimony of the master, or

SALMON P. CHASE,
OF OHIO,
known as "attorney-general for fugitive slaves," on account of his
frequent appearance as counsel in fugitive slave cases.

THOMAS GARRETT,
OF WILMINGTON, DELAWARE,
who aided 2700 runaways, and paid $8000 in fines for his
violations of the slave laws.

the affidavit of some magistrate in the state from which he
came; and that trial by jury was denied. Persons attempting
to obstruct the law by harboring or concealing a fugitive
slave, resisting his arrest, or securing his rescue, were liable
to a fine of five hundred dollars for the benefit of the claimant,
and the right of action on account of these injuries was
reserved to the claimant.[2]

The exclusive regard for the rights of the owner exhibited
in these provisions was fitted to stir the popular sense of
justice in the Northern states, most of which had already
ranged themselves by individual action on the side of liberty.
Persons moved by the appeals of the hunted negro to transgress
the statute would naturally try to avoid its penalties by
concealment of their acts, and this we know was what they
did. The whole movement denominated the Underground
Railroad was carried on in secret, because only thus could
the fugitives, in whose behalf it originated, and their abettors,
by whom it was maintained, be secure from the law. When
through mischance or open resistance, as sometimes happened,
an offender against the law was discovered and brought to
trial, the case was not allowed to progress far before the
Fugitive Recovery Act itself was assailed vigorously by
the counsel for the defendant. The grounds of attack included
the absence of provision for jury trial, the authority
of the claimant or his agent to arrest without a warrant, the
antagonism between state and federal legislation, the supposed
repugnancy of the law of 1793 to the Ordinance of 1787, the
denial of the power of Congress to legislate on the subject of
fugitive slaves, and the question as to the responsibility for
the execution of the law. Nearly if not all of these disputed
points were involved in the great question as to the constitutionality
of the congressional act, a question that kept working
up through the successive decisions of the courts to irritate
and disturb the peace between the sections, that the fugitive
clause in the federal Constitution, the act of 1793 itself, and
the judicial affirmations following in their train were intended
to promote.

The omission of a provision from the law of Congress securing

trial by jury to the alleged fugitive was at once remarked
by the friends of the bondman, and caused the law to be denounced
in the court-room as worthy only of the severest
condemnation.[3] As early as 1819, in the case of Wright vs.
Deacon, tried before the Supreme Court of Pennsylvania, it
was urged that the supposed fugitive was entitled to a jury
trial, but the arguments made in support of the claim have
not been preserved.[4] The question was presented in several
subsequent cases of importance arising under the law of 1793,
namely, Jack vs. Martin, in 1835,[5] Peter, alias Lewis Martin,
about 1837,[6] and State vs. Hoppess, in 1845.[7] From the
reports of these cases one is not able to gather much in
the way of direct statement showing what were the grounds
taken for the advocacy of trial by jury in such cases, but
the indications that appear are not to be mistaken. In
all of these cases it seems to have been insisted that the law
of 1793 failed to conform to the constitutional requirement on
this point; and in State vs. Hoppess it is distinctly stated
that the law provided for a trial of the most important right
without a jury, contrary to the amendment of the Constitution
declaring that "In suits at common law, where the
value shall exceed twenty dollars, the right of trial by jury
shall be preserved . . .";[8] and that the act also authorized
the deprivation of a person of his or her liberty contrary to
another amendment, which declares that no person shall be
"deprived of life, liberty, or property, without due process of
law."[9] In Jack vs. Martin, as probably in the other cases,
the obvious objection seems to have been made that the denial
of the jury contributed to make easy the enslavement of
free citizens. The courts, however, did not sustain these
objections; thus, for example, in the last case named, Judge
Nelson, while admitting the defect of the law, decided in
conformity with it,[10] and the claims upon the constitutional
guarantees, asserted in behalf of the supposed fugitive, were
also overruled, a reason given in the case of Wright vs. Deacon
being that the evident scope and tenor of both the Constitution
and the act of Congress favored the delivery of the fugitive
on a summary proceeding without the delay of a formal trial
in a court of common law. Another reason offered by the
court in this case, and repeated by the Circuit Court of the
United States for the Southern District of New York in
the matter of Peter, alias Lewis Martin, was that the examination
under the federal slave law was only preliminary, its
purpose being merely to determine the claimant's right to
carry the fugitive back to the state whence he had fled, where
the question of slavery would properly be open to inquiry.

The mode of arrest permitted by the law was a cause of
irritation to the minds of abolitionists throughout the free
states, and became one of the points concerning which they
joined issue in the courts. The law empowered the claimant

to seize tlie fugitive wheresoever found for the purpose of
taking him before an officer to prove property. The circumstances
that quickened the sympathy of a community into
active resistance to this feature of the law are fully illustrated
in one of the earliest cases coming before a high
court, in which the question of seizure was brought up
for determination. The case is that of Commonwealth vs.
Griffith, which was tried in the Supreme Judicial Court of
Massachusetts, at the October term in 1823. From the
record of the matter appearing in the law-books, one gathers
that a slave, Randolph, who had fled from his master in
Virginia, found a refuge in New Bedford about 1818, where
by his thrift he acquired a dwelling-house. After several
years he was discovered by Griffith, his owner's agent, and
was seized without a warrant or other legal process, although,
the agent had taken the precaution to have a deputy sheriff
present. The agent's intention was to take the slave before
a magistrate for examination, pursuant to the act of 1793.[11]
New Bedford was a Quaker town, and the slave seems not
to have lacked friends, for the agent was at once indicted
for assault and battery and false imprisonment. The action
thus begun was prosecuted in the name of the state, under
the direction of Mr. Norton, the attorney-general. As
against the act of Congress the prosecution urged that
the Constitution did not authorize a seizure without some
legal process, and that such a seizure would manifestly be
contrary to the article of the amendments of the Constitution
that asserted the right of the people to be secure in
their persons, houses, papers and effects, against unreasonable
searches and seizures.[12] The protest that if the law
was constitutional any citizen's house might be invaded
without a warrant under pretence that a negro was concealed
there called forth the interesting remark from Chief Justice
Parker that a case arising out of a constable's entering a
citizen's house without warrant in search of a slave had
come before him in Middlesex, and that he had held the act
to be a trespass. Nevertheless, the court sustained the law
on the ground that slaves were not parties to the Constitution,
and that the amendment referred to had relation only
to the parties.[13]

The question of arrest without warrant emerged later in
several other cases; for example, Johnson vs. Tompkins
(1833),[14] the matter of Peter, alias Lewis Martin (1837),[15]
Prigg vs. Pennsylvania (1842),[16] and State vs. Hoppess
(1845).[17] The line of objection followed by those opposing
the law in this series will be sufficiently indicated by the
arguments presented in the Massachusetts case of 1823,
treated above. The tribunals before which the later suits
were brought did not depart from the precedent set in the
early case, and the act of 1793 was invariably justified. In
Johnson vs. Tompkins the court pointed out that under
the law the claimant was not only free to arrest his fugitive
without a warrant, but that he was also free to do this unaccompanied
by any civil officer, although, as was suggested,
it was the part of prudence to have such an officer to keep
the peace.[18] In the famous case of Prigg vs. Pennsylvania,
the Supreme Court of the United States went back of the
law of Congress to the Constitution in seeking the source
of the master's right of recaption, and laid down the principle
that "under and in virtue of the Constitution, the
owner of a slave is clothed with entire authority, in every
state in the Union, to seize and recapture his slave, whenever
he can do it without any breach of the peace, or any illegal
violence. In this sense and to this extent this clause of
the Constitution may properly be said to execute itself, and
to require no aid from legislation, state or national."[19]

For many years before Prigg's case various states in the
North had considered it to be within the province of their

legislative powers to enact laws dealing with the subject of
fugitive slaves. It would be beside our purpose to enter
hee upon an examination of these statutes, but it is proper
to say that the variety of particulars in which these differed
from the law concerning the same subject enacted by Congress
prepared the way for a series of legal contests in regard
to the question, whether the power to legislate in relation to
fugitive slaves could be exercised properly by the states as
well as by the federal government. This issue presented
itself in at least three notable cases under the law of 1793:
these were Jack vs. Martin (1835), Peter, alias Lewis Martin
(1837), and Prigg vs. Pennsylvania (1842). The decisions
reached in the first and last cases are of especial significance,
because, in the first, the question of concurrent jurisdiction
constituted the subject of main interest for the Supreme
Court of New York, the court to which the case had been
taken from an inferior tribunal; while in the last case, the
importance attaches to the conclusive character of an adjudication
pronounced by the most exalted court of the nation.

In Jack vs. Martin the action was begun under the New
York law of 1828 for the recovery of a fugitive from New
Orleans. Notwithstanding the fact that this law authorized
the seizure and return of fugitives to their owners, and that
in the case before us, as occurred also in the case of Peter,
alias Lewis Martin, the negro was adjudged to his claimant,
the law of the state was considered invalid, because the right
of legislation on the subject was held to belong exclusively
to the national government.[20]

In Prigg's case[21] a statute of Pennsylvania, passed m 1826,
and bearing the suggestive title, "An act to give effect to
the provisions of the Constitution of the United States relative
to fugitives from labor, for the protection of free people
of color, and to prevent kidnapping," was violated by Edward
Prigg in seizing and removing a fugitive slave-woman and
her children from York County, Pennsylvania, into Maryland,
where their mistress lived. In the argument made
before the Supreme Court in support of the state law, the authority
of the state to legislate was urged on the ground that

such authority was not prohibited to the states nor expressly
granted "in terms" to Congress;[22] that the statute of Pennsylvania
had been enacted at the instance of Maryland, and
with a view to giving effect to the constitutional provision
relative to fugitives;[23] that the states could best determine
how the duty of delivery enjoined upon them should be performed
so as to be made acceptable to their citizens;[24] and
that the act of Congress was silent as to the rights of negroes
wrongfully seized and of the states whose territory was entered
and laws violated by persons acting under pretext of
right.[25] The Supreme Court did not sustain these objections.
A majority of the judges agreed with Justice Story in the
view that Congress alone had the power to legislate on the
subject of fugitive slaves. The reasons given for this view
were two: first, the constitutional source of the authority,
by virtue of which the force of an act of Congress pervades
the whole Union uncontrolled by state sovereignty or state
laws, and secures rights that otherwise would rest upon
interstate comity and favor; and, secondly, the necessity of
having a uniform system of regulations for all parts of the
United States, by which the differences arising from the
varieties of policy, local convenience and local feelings existing
in the various states can be avoided. The right to retake
fugitive slaves and the correlative duty to deliver them were to
be "coextensive and uniform in remedy and operation throughout
the whole Union." While maintaining that the right of
legislation in this matter was exclusively vested in Congress,
the court insisted that it did not thereby interfere with the
police power of the several states, and that by virtue of this
power the states had the authority to arrest and imprison
runaway slaves, and to expel them from their borders, just as
they might do with vagrants, provided that in exercising
this jurisdiction the rights of owners to reclaim their slaves
secured by the Constitution and the legislation of Congress
were not impeded or destroyed.[26]

As the friends of runaway slaves sometimes sought to
oppose to the summary procedure of the federal law the

processes provided by state laws in behalf of fugitives, so
in their endeavor to overthrow the act of 1793, they occasionally
appealed to the Ordinance for the government of
the Northwest Territory. The Ordinance, it will be remembered,
contained a clause prohibiting slavery throughout the
region northwest of the Ohio River, and another authorizing
the surrender of slaves escaping into this territory.[27] The
abolitionists took advantage of these provisions under certain
circumstances, in the hope of securing the release of
those that had fallen into the eager grasp of the congressional
act, and at the same time of proving the incompatibility
of this measure with the Ordinance. The attempt
to do these things was made in three well-known cases,
which came before the courts about 1845. The first of
these was State vs. Hoppess, tried before the Supreme
Court of Ohio on the circuit, to secure the liberation of a
slave that had fled from his keeper, but was afterwards
recaptured;[28] the second was Vaughan vs. Williams, adjudicated
in the Circuit Court of the United States for the
District of Indiana, a case originating in an action against
the defendant for rescuing certain fugitives;[29] and the third
was Jones vs. Van Zandt, which was carried to the Supreme
Court of the United States and there decided. This
last case grew out of the aid given nine runaways by Mr.
Van Zandt, through which one of them succeeded in escaping.[30]
The arguments, based upon the Ordinance, that were
advanced in these cases are adequately set forth in the report
of the first case, a report prepared by Salmon P. Chase, subsequently
Chief Justice of the Supreme Court of the United
States. These arguments, two in number, were as follows:
first, the Ordinance expressly prohibited slavery, and thereby
effected the immediate emancipation of all slaves in the Territory;
and, secondly, the clause in the Ordinance providing
for the surrender of fugitives applied only to persons held
to service in the original states.[31]

The opinions given by the courts in the cases under consideration
failed to support the idea of the irreconcilability
existing between the law of 1793 and the Ordinance. The
Supreme Court of Ohio declared that under the federal Constitution
the right of recaption of fugitive slaves was secured
to the new states to the same extent that it belonged to the
original states.[32] The Circuit Court of the United States
took virtually the same stand by pointing out that a state
carved from the Northwest Territory assumed the same constitutional
obligations by entering the Union that the original
thirteen states had earlier assumed, and that where a
conflict occurred the Constitution was paramount to the
Ordinance.[33] Finally, the Supreme Court at Washington
declared that the clause in the Ordinance prohibiting slavery
applied only to people living within the borders of the
Northwest Territory, and that it did not impair the rights
of those living in states outside of this domain. Wheresoever
the Ordinance existed the states preserved their own
laws, as well as the Ordinance, by forbidding slavery; the
provision of the Constitution and the act of Congress looking
toward the delivery of fugitive slaves did not interfere
with the laws of the free states as to their own subjects.
The court therefore held that there was no repugnance
between the act and the Ordinance.[34]

Among the various objections raised in the court-room
against the law of 1793, the denial of the power of Congress
to legislate on the subject of fugitive slaves was one that
should not be overlooked. It commanded the attention of
the bench in at least two important cases, both of which
have been mentioned in other connections, namely, Peter,
alias Lewis Martin (1837), and State vs. Hoppess (1845).
In both of these cases the denial of legislative authority was
based upon the doctrine that there had been no delegation
of the necessary power to Congress by the Constitution.
The fugitive slave clause in the Constitution, it was said in
the report of the second case, prepared by Mr. Chase,

granted no power at all to Congress, but was "a mere
clause of compact imposing a duty on the states to be fulfilled,
if at all, by state legislation."[35] However prevalent
this view may have been in the Northern states,—and the
number of state laws dealing with the subject of fugitive
slaves indicates that it predominated,—neither the Circuit
Court of the United States for the Southern District of New
York in the earlier case, nor the Supreme Court of Ohio in
the later, were willing to subscribe to the doctrine. On the
contrary, both asserted the power of Congress to pass laws
for the restoration of runaway slaves, on the ground that
the creation of a duty or a right by the Constitution is the
warrant under which Congress necessarily acts in making
the laws needful to enforce the duty or secure the right.[36]

The outcome of the judicial examination in the high
courts of the various points thus far considered was wholly
favorable to the constitutionality of the law of 1793. The
one case within the category of great cases in which that
law was decided to be unconstitutional in any particular
was that of Prigg vs. Pennsylvania. By the law of
1793 state and local authorities were empowered to take
cognizance of fugitive slave cases together with judges holding
their appointments from the federal government.[37] In
the hearing given the case before the Supreme Court at
Washington, in 1842, Mr. Johnson, the attorney-general of
Pennsylvania, cited former decisions of the Supreme Court
to show that in so far as the congressional law vested jurisdiction
in state officers it was unconstitutional and void.[38]
The court's answer was momentous and far-reaching.
While the law was declared to be constitutional in its essential
features, it was asserted that it did not point out any
state functionaries, or any state actions, to carry its provisions
into effect. The states could not, therefore, so the
court decided, be compelled to enforce them; and any insistence
that the states were bound to provide means for the

performance of the duties of the national government, nowhere
delegated or entrusted to them by the Constitution,
would bear the appearance of an unconstitutional exercise
of the interpretative power.[39] As the decision in the Prigg
case carried the weight of great authority, and became a
precedent for all future judgments,[40] the relief it afforded
state officers from distasteful functions was soon accepted
by many states, and they enacted laws forbidding their
magistrates to issue warrants for the arrest or removal of
fugitive slaves.[41] In consequence of this manifest disinclination
on the part of the Northern states to restore to
Southern masters their escaped slaves, the federal government
was induced to make more effective provision for the
execution of the Constitution in this particular. Such provision
was embodied in the second Fugitive Slave Law,
passed as a part of the Compromise of 1850.

That the new law was not intended to extinguish the old
is apparent from the title assigned it, which read: "An Act
to amend, and supplementary to, the Act entitled ' An Act
respecting Fugitives from Justice, and Persons escaping
from the service of their Masters, . . ."[42] Its evident purpose
was to increase the facilities and improve the means
for the recovery of fugitives from labor. To this end it
created commissioners, who were to have authority, like
the judges of the circuit and district courts of the United
States, to issue warrants for the apprehension of runaway
slaves, and to grant certificates for the removal of such persons
back to the state or territory whence they had escaped.
All cases were to be heard in a summary manner; the testimony
of the alleged fugitive could not be received in evidence;
and the fee of the commissioner or judge was to be
ten dollars when the decision was in favor of the claimant,
but only five dollars when it was unfavorable. The penalties
created by the new law were more rigorous than those

imposed by the old. A fine not to exceed a thousand dollars
and imprisonment not to exceed six months constituted the
punishment for harboring a runaway or aiding in his rescue,
and the party injured could bring suit for civil damages
against the offender in the sum of one thousand dollars for
each fugitive lost through his interference. If the claimant
apprehended a rescue, the officer making the arrest could
be required to retain the fugitive in his custody for the purpose
of removing him to the state whence he had fled. The
refusal of the officer to obey and execute the warrants and
precepts issued under the provisions of the law laid him
liable to a fine of a thousand dollars for the benefit of the
claimant; and the escape of a fugitive from his custody,
whether with his assent or without it, made him liable to a
prosecution for the full value of the labor of the negro thus
lost. Ample security from such disaster was intended to be
provided for the marshal and his deputies by the clause
authorizing them to summon to their aid the bystanders, or
posse comitatus, when necessary, and all good citizens were
commanded to respond promptly with their assistance. In
removing a fugitive back to the state from which he had
escaped, when an attempt at rescue was feared, the marshal
in charge was commanded to employ as many persons as he
deemed necessary to resist the interference. The omission
of the new law to mention any officers appointed by the
states is doubtless traceable, as is the clause establishing
commissionerships, to the ruling in the decision of Prigg's
case that state officers could not be forced to execute federal
legislation.

It will be remembered that the decision in the Prigg case
also contained a ruling that acknowledged the right of the
claimant to seize and remove the alleged fugitive, wheresoever
found, without judicial process. It has been suggested
recently that this part of the decision, denominated the
most obnoxious part, was avoided in the law of 1850.[43] But
the language of the new law no more denied this right than

the language of the old bestowed it. In both cases equally
the claimant seems to have enjoyed the right of private
seizure and arrest without process, but for the purpose of
taking the supposed fugitive before the proper official.[44] So
far as the language of the statute was concerned the Prigg
decision was quite as possible under the later as under the
earlier law. It was the language of the Constitution upon
which this part of the famous decision was made to rest, and
that, it needs scarcely be said, continued unchanged during
the period with which we are concerned.

It is not to be supposed, of course, that the law of 1850
was found to be intrinsically less objectionable to abolitionists
than the measure it was intended to supplement. On the
contrary, it soon proved to be decidedly more objectionable.
The features of the first Slave Act that were obnoxious to the
Northern people, and had been subjected to examination in
the courts, were retained in the second act, where they were
associated with a number of new features of such a character
that they soon brought the new law into the greatest contempt.
While, therefore, the records of the trials of the
chief cases arising under the later law are found to contain
arguments borrowed from the contentions made in the cases

already discussed, it is interesting to note that they afford
proof that new arguments were also brought to bear against
the act of 1850. As with the first Fugitive Slave Law, so
also with its successor, fault was found on account of the
absence of any provision for jury trial;[45] the authority of a
claimant or his agent to arrest without legal process;[46] the
opposition alleged to exist between the law and the Ordinance
of 1787;[47] and the power said to be improperly exercised by
Congress in legislating upon the subject of fugitive slaves.[48]
It is unnecessary to introduce here a study of these points
as they presented themselves in the various cases arising,
for a discussion of them would lead to no principles of importance
other than those discovered in the cases already
examined.[49]

In some of the cases that were tried under the act of 1850,
however, new questions appeared; and in some, where the
questions were perhaps without novelty, the circumstances
were such that the cases cannot well be passed over in silence.

If, as was freely declared by the abolitionists, it was possible
for free negroes to be abducted from the Northern states
under the form of procedure laid down by the act of 1793,
there can be little reason to doubt that the same thing was
equally possible under the procedure established by the act

of 1850. Certain it is that the anti-slavery people were
not dubious on this point, but they had scarcely had time to
formulate their criticisms of the new law when the first case
under it of which there is any record demonstrated the ease
with which this legislation could be taken advantage of in
the commission of a foul injustice. The case occurred September
26, only eight days after the passage of the act.
A free negro, James Hamlet, then living in New York, was
arrested as the slave of Mary Brown, of Baltimore. The
hearing took place before a United States commissioner and
the negro's removal followed at once. The community in
which Hamlet was living was greatly incensed when the facts
concerning his disappearance became known, and the sum of
money necessary for his redemption was quickly contributed.
Before a fortnight had elapsed he was brought back from
slavery.[50]

The summary manner in which this case was disposed of
had prevented a defence being made in behalf of the supposed
fugitive. In the next case, however, that of Thomas
Sims, which was tried before the Supreme Judicial Court of
Massachusetts in 1851, the negro was represented by competent
counsel, who brought forward objections against the
second Fugitive Slave Law. Almost the first of these was
directed against the power of the special officers, the commissioners,
created by the new law. It was insisted that the
authority with which these officers were invested was distinctly
judicial in character, despite the constitutional provision
limiting the exercise of the judicial power of the
United States to organized courts of justice, composed of
judges, holding their offices during good behavior, and receiving
fixed salaries for their services.[51] The same argument
seems to have been adduced in Scott's case, tried before
the District Court of the United States in Massachusetts in
1851; in the case of Miller vs. McQuerry, tried before the

Circuit Court of the United States in Ohio in 1858;[52] in
Booth's case, argued in the Supreme Court of Wisconsin
in 1854;[53] in the case known as ex parte Robinson, adjudicated
by the Circuit Court of the United States for the Southern
District of Ohio at its April term, 1855;[54] and in the case ex
parte Simeon Bushnell, argued and determined in the Supreme
Court of Ohio in 1859.[55] The court met this argument
by a direct answer in four of the cases mentioned,
namely, those of Sims, Scott, Booth and ex parte Robinson.
In the first, Sims' case, Chief Justice Shaw pointed out
that under the Slave Law of 1793 the jurisdiction over fugitive
slave cases had been conferred on justices of the peace
and magistrates of cities and towns corporate, as well as on
judges of the United States circuit and district courts, and
that evidently, therefore, the power bestowed had not been
deemed judicial in the sense in which it was urged that the
functions of the commissioners were judicial. At the same
time the judge admitted that the "argument from the limitation
of judicial power would be entitled to very grave consideration
"if it were without the support of early construction,
judicial precedent and the acquiescence of the general and
state governments. In the trial of James Scott, on the
charge of aiding in the rescue of Shadrach (May or June,
1851), Judge Sprague, of the United States District Court,
held that the legal force of the certificate issued by a commissioner
lay merely in the authority it conveyed to remove
the person designated from one state to another, and that
the disposition made of the person removed depended solely
upon the laws of the state to which he was taken. The facts
set down in the certificate were not, therefore, to be considered
as matters judicially established, but as facts only in the
opinion of the commissioner. In Booth's case, the opinion
of the Supreme Court of Wisconsin contained a reference to
the legality of the power of the commissioners and sustained
the objection to their authority on the ground of unconstitutionality.[56]
In ex parte Robinson, Judge McLean admitted
that the inquiry made by the commissioner was "somewhat
in the nature of judicial power," but that the same
remark applied to all the officers of the accounting departments
of the government, as, for example, the examiners in
the Patent Office. He also remarked that the Supreme
Court had always treated the acts of the commissioners, in
the cases that had come before it, as possessed of authority
under the law.[57]

The uncertainty as to the precise character of the commissioners'
power displayed in the different views of the
courts before which the question was brought marks the
observations of the commissioners themselves in regard to
their authority. Examples will be found in Sims' and
Burns' cases. In the former, Mr. George T. Curtis declared
that claims for fugitive slaves came within the judicial
power of the federal government, and that, consequently,
the mode and means of the application of this power to the
cases arising were properly to be determined by Congress.
In the latter, Mr. Edward G. Loring asserted that his action
was not judicial at all, but only ministerial.

An additional ground of objection to the commissioners
was found in the provision made in the law of 1850 for their
remuneration. When one of these officers issued a certificate
authorizing the removal of a runaway to the state
whence he had escaped, he was legally entitled to a fee of
ten dollars; when, however, he withheld the warrant he
could receive but five dollars. Abolitionists took much
offence at this arrangement, and sometimes scornfully denominated
the special appointees under the law the "ten-dollar
commissioners," and insisted that the difference
between the fees was in the nature of a bribe held out to
the officers to induce them to decide in favor of the claimant.
Considering the prevalence of this feeling outside of the
courts, it is not surprising that objections to the section of
the act regulating the fees of commissioners should have been
taken within the court-room.[58] Such objection was raised
in McQuerry's case, and was answered by Judge McLean.

This answer is probably the only one judicially declared,
and is worth quoting: "In regard to the five dollars, in
addition, paid to the commissioner, where the fugitive is
remanded to the claimant," the judge explained, "in all
fairness it cannot be considered as a bribe, or as so intended
by Congress; but as a compensation to the commissioner
for making a statement of the case, which includes the facts
proved, and to which the certificate is annexed. In eases
where the witnesses are numerous and the investigation
takes up several days, five dollars would scarcely be a compensation
for the statement required. Where the fugitive
is discharged, no statement is necessary."[59]

The fees paid to commissioners were, as indicated in the
remarks just quoted, by way of remuneration for services
rendered in inquiries relative to the rights of ownership of
negroes alleged to have escaped from the South. These
inquiries, together with similar inquiries that arose under
the act of 1793, constitute a group by themselves. Another
group is made up of the cases growing out of the prosecution
under the two acts of persons charged with harboring fugitive
slaves, or aiding in their rescue. The secrecy observed
by abolitionists in giving assistance to escaping bondmen
shows that the evils threatening, if a discovery occurred,
were constantly kept in mind. After the passage of the
second act, public denunciation of the measure was indulged
in freely, and open resistance to its provisions, whether,
these should be considered constitutional or not, was recommended
in some quarters. Such remonstrances seem to
have early disturbed the judicial repose of the courts, for,
six months after the new Fugitive Slave Bill had become a
law, Justice Nelson found occasion in the course of a charge
to the grand jury of the Circuit Court of the United States
for the Southern District of New York to deliver a speech
on sectional issues in which he gave an exposition of the
new law, "so that those, if any there be, who have made up
their minds to disobey it, may be fully apprised of the consequences."[60]
The severer penalties of the law of 1850 had

no deterrent effect upon those who were determined to resist
its enforcement. The fervor displayed in harboring runaways
increased rather than diminished throughout the free
states, and the spirit of resistance thus fostered broke out
in daring and sometimes successful attempts at rescue.
Through the activity of slave-owners in seeking the recovery
of their lost property, and the support afforded them by
the government in the strict enforcement of the new law, a
number of offenders were brought to trial and subjected to
punishments inflicted under its provisions.

Among the prosecutions arising under the two congressional
acts the folloAving cases are offered as typical. The
number has been limited by choosing in general from among
such as came before supreme courts of the states, or before
circuit and district courts of the United States.

One of the earliest cases of which we have record was
brought before the Circuit Court of the United States for
the Eastern District of Pennsylvania on writ of error, in
1822. The action was for the penalty under the law of
1793 for obstructing the plaintiff, a citizen of Maryland, in
seizing his escaped slave in Philadelphia for the purpose of
taking him before a magistrate there to prove property.
The trial in the United States District Court had terminated
in a verdict of $500 for the slave-owner. Judge
Washington, of the Circuit Court, decided, however, that
there was an error in the judgment of the lower court, that
the judgment must be reversed with costs, and the cause
remitted to the District Court in order that a new trial
might be had. This case is known in the law books as the
case of Hill vs. Low.[61]

Occasionally an attempt at rescue ended in the arrest and
imprisonment of the slave-catchers, as well as the release of
the captured negro. When a party of rescuers went to
such a length as here indicated it laid itself liable to an
action for damages on the ground of false imprisonment, as
well as to prosecution for the penalty under the Fugitive
Slave Law. This is illustrated in the case of Johnson vs.

Tomkins, a case belonging to the year 1833.[62] It was the outgrowth
of the attempt of a master to reclaim his slave from
the premises of a Quaker, John Kenderdine, of Montgomery
County, Pennsylvania. Before the slave-owner could return
to New Jersey, the state of his domicile, he and his
party were overtaken, and after violent handling in which
the master was injured, they were taken into custody, and
were forthwith prosecuted. The trial ended in the acquittal
of the company from New Jersey, whose seizure of the
negro was found to be justifiable. Then followed the prosecution
of some of the Pennsylvania party for trespass and
false imprisonment, before the Circuit Court of the United
States. The fact that the defendants were all Quakers was
noted by the judge, who found it "hard to imagine" the
motives by which these persons, "members of a society distinguished
for their obedience and submission to the laws"
were actuated. The question of damages was left exclusively
to the jury. The verdict rendered was for $4,000,
and the court gave judgment on the verdict.[63]

The law of 1793 provided a double penalty for those
guilty of transgressing its provisions: first, the forfeiture
of a sum of $500 to be recovered for the benefit of
the claimant by action of debt; secondly, the payment
of such damages as might be awarded by the court in an
action brought by the slave-owner on account of the injuries
sustained through the loss, or even the temporary absence,
of his property. In the famous case of Jones vs. Van Zandt,
which was pending before the United States courts, in Ohio
and at Washington, for five years, from 1842 to 1847, the
defendant was compelled to pay both penalties. In April,
1842, Mr. Van Zandt, an anti-slavery Kentuckian, who had
settled at Springdale, a few miles north of Cincinnati, Ohio,
was caught in the act of conveying a company of nine fugitives
in his market-wagon at daybreak one morning, and,
notwithstanding the efforts of the slave-catchers, one of the
negroes escaped. The trial was held before the United
States Circuit Court at its July term, 1843. The jury gave

a verdict for the claimant of $1,200 in damages on two
counts.[64] Besides the suit for damages, an action was
brought against Van Zandt for the penalty of $500. In this
action, as in the other, the verdict was for Jones, the plaintiff.
The matter did not end here, however, and was carried
on a certificate of division in opinion between the judges to
the Supreme Court of the United States. The decision of
this court was also adverse to Van Zandt, and final judgment
was entered against him for both amounts. This
settlement was reached at the January term in 1847.[65]

The successful rescue of a large company of slaves was
likely to make the adventure a very expensive one for the
responsible persons that took part in it. Such was the experience
of the defendants in the case of Giltner vs. Gorham
and others, determined in 1847. Six slaves, the chattels of
Mr. Giltner, a citizen of Carroll County, Kentucky, were
discovered and arrested in Marshall, Michigan, by the
agents of the claimant, but through the intervention of the
defendants were set at liberty. Action was brought to recover
the value of the negroes, who were estimated to be
worth 12,752. In the first trial the jury failed to agree. At
the succeeding term of court, however, a verdict for the
value of the slaves was found for the plaintiff.[66]

The value of four negroes was involved in the case
of Norris vs. Newton and others. These negroes were
found in September, 1849, after two years' absence from
Kentucky, living in Cass County, Michigan. Here they had
taken refuge among abolitionists and people of their own
color. They were at once seized by their pursuers and conveyed
across the line into Indiana, but had not been taken far
when their progress was stopped by an excited crowd with a
sheriff at its head. The officer had a writ of habeas corpus,
and the temper of the crowd would admit of no delay in
securing a hearing for the fugitives. The court-house at
South Bend, whither the captives were now taken, was at

once crowded with spectators, and the streets around it filled
with the overflow. The negroes were released by the decision
of the judge, but were rearrested and placed in jail
for safe-keeping. On the following day warrants were
sworn out against several members of the Kentucky party,
charging them with riot and other breaches of the peace'
and civil process was begun against Mr. Norris, the owner
of the slaves, claiming large damages in their behalf.
Meanwhile companies of colored people, some of whom had
firearms and others clubs, came tramping into the village
from Cass County and the intermediate country. Fortunately
a demonstration by these incensed bands was somehow
avoided. Two days later the fugitives were released
from custody on a second writ of habeas corpus, and, attended
by a great bodyguard of colored persons, were triumphantly
carried away in a wagon. The slave-owner, the charges
against whom were dropped, had declined to attend the last
hearing accorded his slaves, declaring that his rights had
been violated, and that he would claim compensation under
the law. Suit was accordingly brought in the Circuit Court
of the United States in 1850, and the sum of $2,850 was
awarded as damages to the plaintiff.[67]

Another case in which large damages were at stake was
that of Oliver vs. Weakley and others, tried in the United
States Circuit Court for the Western District of Pennsylvania,
in October term, 1853. It was alleged and proved
that Mr. Weakley, one of the defendants, had given shelter
in his barn to several slaves of the plaintiff, who was a
citizen of Maryland. The jury failed to agree on the first
trial. A second trial was therefore held, and this time a
verdict was reached; one of the defendants was found
guilty, and damages to the amount of $2,800 were assessed
upon him; the other defendants were declared "not guilty."[68]

The dismissal without proper authority of seven fugitives
from the custody of their captors at Sandusky, Ohio, by
Mr. Rush R. Sloane, a lawyer of that city, led to the institution
of two suits against him by Mr. L. F. Weimer, the
claimant of three of the slaves. The suits were tried before

the District Court of the United States at Columbus, Ohio,
in 1854, and a verdict for $3,000 and costs was returned in
favor of the slaveholder. The costs amounted to $330.30,
and the defendant had also to pay $1,000 in attorneys' fees.
Some friends of Mr. Sloane in Sandusky formed a committee
and collected $393, an amount sufficient to pay the court and
marshal's costs, but the judgment and the other expenses
were borne by the defendant individually.[69]

The burden of the penalty, of which, as we have just seen,
a small fraction was assumed by sympathizers with the
offender in the case of Mr. Sloane, was altogether removed
by friendly contributors in the case of another citizen of
Sandusky. Two negroes from Kentucky, who were being
cared for at the house of Mr. F. D. Parish, were protected
from arrest by their benefactor in February, 1845. As
Parish was a fearless agent of the Underground Road, the
fugitives were not seen afterwards in northern Ohio. The
result was that Parish was required to undergo three trials,
and in the last, in 1849, the Circuit Court of the United
States for the District of Ohio fined him $500, the estimated
value of the slaves at the time. This sum, together with the
costs and expenses, amounting to as much more, was paid by
friends of Mr. Parish, who made up the necessary amount by
subscriptions of one dollar each.[70]

It will have been noticed that the Van Zandt and Parish
cases were in litigation for about five years each. A famous
Illinois case, that of Dr. Richard Eells, occupied the attention
of the courts and of the public more or less during an entire
decade. The incidents that gave rise to this case occurred
in Adams County, Illinois, in 1842. In that year Mr. Eells
was indicted for secreting a slave owing service to Chauncey
Durkee, of Missouri, and was convicted and sentenced to pay
a fine of $400 and the costs of the prosecution. The case
was taken on writ of error first to the Supreme Court of the
state, and after the death of Mr. Eells to the Supreme
Court of the United States. In both instances the judgment
of the original tribunal was confirmed. The decision
of the federal court was reached at its December term for
1852.[71]

It was sometimes made clear in the courts that the defendants
in cases arising under the Fugitive Slave laws were persons
in the habit of evading the requirements of these laws.
This is true of the case of Ray vs. Donnell and Hamilton,
which was tried before the United States Circuit Court in
Indiana, at the May term, 1849. A slave woman, Caroline,
and her four children fled from Kemble County, Kentucky,
and found shelter in a bam near Clarksburg, Indiana.
Here they were discovered by Woodson Clark, a farmer
living in the neighborhood, who took measures immediately
to inform their master, while the slaves were removed to
a fodder-house for safe-keeping. In some way Messrs.
Donnell and Hamilton learned of the capture of the negroes
by Mr. Clark, and secured a writ of habeas corpus in their
behalf; but, if the testimony of Mr. dark's son, supported
by certain circumstantial evidence, is to be credited, the
blacks were released from custody by the personal efforts of
the defendants, and not by legal process. Considerable evidence
conflicting with that just mentioned appears to have

had little weight with the jury, for it gave a verdict for the
claimant and assessed his damages at $1,500.[72]

In the trial of Mitchell, an abolitionist of the town of
Indiana, Pennsylvania, in 1853, for harboring two fugitives,
some of the evidence was intended to show that he was connected
with a "regularly organized association," the business
of which was "to entice negroes from their owners, and to
aid them in escaping to the North." The slaves he was
charged with harboring had been given employment on his
farm in the country, where, as it was thought, they would
be secure. After remaining about four months they were
apprised of danger and escaped. Justice Grier charged the
jury to "let no morbid sympathy, no false respect for pretended
'rights of conscience,' prevent it from judging the
defendant justly." A verdict of $500 was found for the
plaintiff.[73]

Penalties for hindering the arrest of a fugitive slave were
imposed in two other noted cases, which deserve mention
here, although they are considered at length in another connection.
One of these was Booth's case, with which the
Supreme Court of Wisconsin, and the District and Supreme
Courts of the United States dealt between the years 1855 and
1858. The sentence pronounced against Mr. Booth included
imprisonment for one month and a fine of $1,000 and costs
—$1,451 in all.[74] The other case was what is commonly
known as the Oberlin-Wellington case, tried in the United
States District Court at Cleveland, Ohio, in 1858 and 1859.
Only two out of the thirty-seven men indicted were convicted,
and the sentences imposed were comparatively light.
Mr. Bushnell was sentenced to pay a fine of $600 and costs
and to be imprisoned in the county jail for sixty days, while
the sentence of the colored man, Langston, was a fine of
$100 and costs and imprisonment for twenty days.

In all of the cases thus far considered the charges upon
which the transgressors of the Fugitive Slave laws were

prosecuted were, in general terms, harboring and concealing
runaways, obstructing their arrest, or aiding in their rescue.
There was, however, one case in which the crime alleged in
the indictment was much more serious, being nothing less
than treason against the United States. This was the famous
Christiana case, marked not only by the nature of the
indictment, but by the organized resistance to arrest made
by the slaves and their friends, and by the violent death of
one of the attacking party. The frequent abduction of
negroes from the neighborhood of Christiana, in southeastern
Pennsylvania, seems to have given occasion for the
formation, about 1851, of a league for self-protection among
the many colored persons living in that region.[75] The leading
spirit in this association was William Parker, a fugitive
slave whose house was a refuge for other runaways. On
September 10, Parker and his neighbors received word from
the Vigilance Committee of Philadelphia that Gorsuch, a
slaveholder of Maryland, had procured warrants for the
arrest of two of his slaves, known to be staying at Parker's
house. When, therefore, Gorsuch with his son and some
friends appeared upon the scene about daybreak on the
morning of the 11th, and, having broken into the house,
demanded the fugitives, the negroes lost little time in sounding
a horn from one of the upper-story windows to summon
their friends. From fifty to one hundred men, armed with
guns, clubs and corn-cutters, soon came up. Castner Hanway
and Elijah Lewis, two Quakers, who had been drawn
to the place by the disturbance, declined to join the marshal's
posse and help arrest the slaves; but they advised the
negroes against resisting the law, and warned Gorsuch and
his party to depart if they would prevent bloodshed. Neither
side would yield, and a fight was soon in progress. In the
course of the conflict the slave-owner was killed, his son
severely wounded, and the fugitives managed to escape.

The excitement caused by this affair extended throughout
the country. The President of the United States placed a
company of forty-five marines at the disposal of the United

States marshal, and these proceeded under orders to the
place of the riot. A large number of police and special
constables made search far and wide for those concerned in
the rescue. Their efforts were rewarded with the arrest of
thirty-five negroes and three Quakers, among the latter Hanway
and Lewis, who gave themselves up. The prisoners
were taken to Philadelphia and indicted by the grand jury
for treason. Hanway was tried before the Circuit Court
of the United States for the Eastern District of Pennsylvania
in November and December, 1851. In the trial it
was shown by the defence that Mr. Hanway was a native
of a Southern state, had lived long in the South, and, during
his three years' residence in Pennsylvania, had kept aloof
from anti-slavery organizations and meetings; his presence
at the riot was proved to be accidental. Under these circumstances
the charge of Justice Crier to the jury was a
demonstration of the unsoundness of the indictment: the
judge asked the jury to observe that a conspiracy to be
classed as an act of treason must have been for the purpose
of effecting something of a public nature; and that the efforts
of a band of fugitive slaves in opposition to the capture
of any of their number, even though they were directed by
friends and went the full length of committing murder upon
their pursuers, was altogether for a private object, and could
not be called "levying war" against the nation. It did not
take the jury long to decide the case. After an absence of
twenty minutes the verdict "not guilty" was returned. One
of the negroes was also tried, but not convicted. Afterward
a bill was brought against Hanway and Lewis for riot and
murder, but the grand jury ignored it, and further prosecution
was dropped.[76]

One cannot examine the records of the various cases that
have been passed in review in the preceding pages of this
chapter without being struck in many instances by the character
of the men that served as counsel for fugitive slaves and

their friends. It not infrequently happens that one comes
upon the name of a man whose principles, ability and eloquence
won for him in later years positions of distinction and
influence at the bar and in public life. In the Christiana
case, for example, Thaddeus Stevens was a prominent figure;
in the Van Zandt case Salmon P. Chase and William H.
Seward presented the arguments against the Fugitive Slave
Law before the United States Supreme Court;[77] Mr. Chase
also appeared in Eells' case, and in the case known as ex parte
Robinson, besides others of less judicial importance. Rutherford
B. Hayes took part in a number of fugitive slave cases
in Cincinnati, Ohio. A letter written by the ex-President
in 1892 says: "As a young lawyer, from the passage of the
Fugitive Slave Law until the war, I was engaged in slave cases
for the fugitives, having an understanding with Levi Coffin
and other directors and officers of the U. R. R. that my
services would be freely given."[78] John Jolliffe, another
lawyer of Cincinnati, less known than the anti-slavery advocates
already mentioned, was sometimes associated with Chase
and Hayes in pleading the cause of fugitives.[79] The Western
Reserve was not without its members of the bar that
were ready to display their legal talent in a movement well
grounded in the popular mind of eastern Ohio. An illustration
is afforded by the trial of the Oberlin-Wellington rescuers,
when four eminent attorneys of Cleveland offered their
services for the defence, declining at the same time to accept
a fee. The event shows that the political aspirations of these
men were not injured by their procedure, for Mr. Albert G.
Riddle, who spoke first for the defence, was elected to Congress
from the Cleveland district the following year, and
Mr. Rufus P. Spalding, one of his associates, was similarly
honored by the same district in 1862.[80] In November, 1852,
the legal firm of William H. West and James Walker, of
Beliefontaine, Ohio, attempted to release from custody several

RUSH R. SLOANE,
of Sandusky, Ohio,

fined $3000 and costs for assisting runaways
to Canada.

J. R. WARE,
of Mechanicsburg, Ohio,

a station-keeper, in a centre receiving fugitives
from several converging routes.

THADDEUS STEVENS, M.C.,

who befriended fugitives in southeastern
Pennsylvania, and appeared for them
in court.

Ex-President R. B. HAYES,

who, as a young lawyer in Cincinnati,
Ohio, served as counsel in fugitive slave
cases.

negroes belonging to the Piatt family of Kentucky, before
their claimants could arrive to prove property. The attempt
was successful, and, by prearrangement, the fugitives were
taken into a carriage and driven rapidly to a neighboring
station of the Underground Railroad. The funds to pay the
sheriff, the court expenses and the livery hire were borne in
part by Messrs. West and Walker.[81]

Among the names of the legal opponents of fugitive slave
legislation in Massachusetts, that of Josiah Quincy, who
gained distinction in public life and as President of Harvard
College, is first to be noted. Mr. Quincy was counsel for
the alleged runaway in one of the earliest cases arising under
the act of 1793.[82] In some of the well-known cases that were
tried under the later act Richard H. Dana, Robert Rantoul,
Jr., Ellis Gray Loring, Samuel E. Sewell and Charles G.
Da vis appeared for the defence. Sims' case was conducted
by Robert Rantoul, Jr., and Mr. Sewell; Shadrach's by
Messrs. Davis, Sewell and Loring; and Burns' case by Mr.
Dana and others.[83]

Instances gathered from other Northern states seem to
indicate that information of arrests under the Fugitive Slave
acts almost invariably called out some volunteer to use his
legal knowledge and skill in behalf of the accused, and that
in many centres there were not lacking men of professional
standing ready to give their best efforts under circumstances
that promised, in general, little but defeat. Owen Love joy,
of Princeton, Illinois, was arrested on one occasion for aiding
fugitive slaves, and was defended by James H. Collins, a
well-known attorney of Chicago. Returning from the trial
of Lovejoy, Mr. Collins learned of the arrest of Deacon
Cushing, of Will County, on a similar charge, and together
with John M. Wilson he immediately volunteered to conduct
the new case.[84] At the hearing of Jim Gray, a runaway from
Missouri, held before Judge Caton of the State Supreme
Court at Ottawa, Illinois, Judge E. S. Leland, B. C. Cook,

O. C. Gray and J. O. Glover appeared voluntarily as counsel
for the negro.[85] As a result of the hearing it was decided
by the court that the arrest was illegal, since it had been
made under the state law; the negro was, therefore, discharged
from the arrest, but could not be released by the
judge from the custody of the United States marshal. However,
the bondman was rescued, and thus escaped. Eight
men were indicted on account of this affair, prominent among
whom were John Hossack and Dr. Joseph Stout, of Ottawa.
Mr. Hossack, who was tried first, had an array of six of the
leading lawyers of Chicago to present his side of the case;
they were the Hons. Isaac N. Arnold, Joseph Knox, B. C.
Cook, J. V. Eustace, E. Leland and E. C. Larnard. Mr.
Stout had three of these men to represent him, namely,
Messrs. Eustace, Laned, and Arnold.[86] Early in March,
1860, two citizens of Tabor, Iowa, Edward Sheldon and
Newton Woodford, were captured while conducting four
runaways from the Indian Territory to a station of the Underground
Railroad. At the trial they were ably defended
by James Vincent, Lewis Mason and his brother, and were
acquitted. It may be added that the trial closed at nine
o'clock in the evening, and before daybreak the negroes had
been rescued and sent forward on their way to Canada.[87]

In Philadelphia there were several lawyers that could
always be depended on to resist the claims of the slave-owner
to his recaptured property in the courts. William Still mentions
two of these, namely, David Paul Brown and "William
S. Pierce, as "well-known veterans" ready to defend the
slave "wherever and whenever called upon to do so."[88]
Robert Purvis relates an incident of David Paul Brown that
will be recognized as characteristic of the spirit in which the
class of advocates to which he belonged rendered their services
for the slave. A case growing out of the capture of a

negro by his pursuers occupied the attention of Mr. Purvis
for a season in 1836, and he desired to engage Mr. Brown
for the defence; he accordingly presented the matter to the
distinguished attorney, offering him a fee of fifty dollars in
advance. Mr. Brown promptly undertook the case, but refused
the money, saying: "I shall not now, nor have I ever,
accepted fee or reward, other than the approval of my own
conscience, and I respectfully decline receiving your money."[89]

In what was, so far as known, the last case under the
Slave Law of 1850, Mr. John Dean, a prominent lawyer of
Washington, D.C., displayed noteworthy zeal in the interest
of his client, a supposed fugitive. The affair occurred in
June, 1862, and came within the cognizance of the United
States courts. Mr. Dean, who had just obtained the discharge
of the colored man from arrest, interfered to prevent
his seizure a second time as the slave of a Virginian. The
claimant, aided by other persons, sought to detain the black
until a civil officer should arrive to take him into custody,
but the attorney's surprising play at fisticuffs defeated the
efforts of the assailing party and the black got away. He
soon enlisted in one of the colored regiments then forming
in Washington, and it is to be surmised that all question
concerning his status was put to rest by this step. Mr.
Dean was indicted for aiding in the escape of a fugitive
slave, and although the affair is said to have caused great
excitement in the Capital, especially in the two Houses of
Congress, it never reached a legal decision, but lapsed through
the progress of events that led rapidly to the Emancipation
Proclamation and the repeal of the Fugitive Slave laws.[90]

In the crisis that was reached with the beginning of the
new decade, the question of the rendition of fugitives from
service was by no means lost sight of. As in 1850, so in
1860 a measure for the more effective protection of slave
property appears to have been a necessary condition in any
plan of compromise that was to gain Southern support.
President Buchanan sought to meet the situation by proposing,

in his message of December 4, 1860, the adoption of
"explanatory" amendments to the Constitution recognizing
the master's right of recovery and the validity of the Fugitive
Slave Law; he also recommended a declaration against the
so-called personal liberty laws of the states as unconstitutional,
and therefore void. This produced, within three
months, in the House, a crop of more than twenty resolutions
relative to fugitive slaves; the deliberations of that body
issued at length, March 1, 1861, in the passage of a bill to
make more effective the law of 1850. The new measure
provided for an appeal to the Circuit Court of the United
States, where cases were to be tried by jury. But in the
Senate this bill never got beyond the first reading.

That the people of the Northern states would have
acquiesced in a new law for the surrender of runaway
negroes was certainly not to be expected. Both the law of
1793 and that of 1850 had been systematically evaded as well
as frequently denounced, and now memorials were being
sent to Congress praying for the repeal of the despised legislation.[91]
A bill for this purpose was introduced into the
House by Mr. Blake, of Ohio, in 1860, but was smothered
by the attempt to amend the existing law. A similar
measure was introduced into the Senate in December, 1861,
by Mr. Howe, of Wisconsin, who prefaced its presentation
by declaring that the Fugitive Slave Law "has had its day.
As a party act it has done its work. It probably has done
as much mischief as any other one act that was ever passed
by the national legislature. It has embittered against each
other two great sections of the country."[92] The bill was
referred to a committee, where it was kept for some time,
and at length was reported adversely in February, 1863.

In the meantime slavery was subjected to a series of destructive
attacks in Congress, despite the views of some, who
held that the institution was under constitutional protection.
The passions and exigencies of the War, together with the
humane motives from which the anti-slavery movement had
sprung, did not leave these assaults without justification.

In August, 1861, a law was enacted providing for the
emancipation of negroes employed in military service against
the government; in April, 1862, slavery was abolished in
the District of Columbia; in May, army officers were forbidden
to restore fugitives to their owners; in June slavery
was prohibited in the territories; and in July an act was
passed granting freedom to fugitives from disloyal masters
that could find refuge with the Union forces.

In the train of these measures, and in September of the
same year in which most of them were enacted, President
Lincoln issued his proclamation of warning to the South declaring
that all persons held as slaves in the states continuing
in rebellion on the 1st of January, 1863, should be "thenceforth
and forever free." When the warning was carried into
effect on the first day of the new year by the famous Proclamation
of Emancipation, ownership of slave property in the
border states was not abolished. The loyalty of these states
was their protection against interference. As the Fugitive
Slave Law was not yet repealed opportunity was still afforded
to civil officers to enforce its provisions both north and south
of Mason and Dixon's line. North of the line there was,
however, no disposition to enforce the law. South of it
wandering negroes were sometimes arrested by the civil
authorities for the purpose of being returned to their masters.
The following advertisement, printed two months and
a half after the final proclamation went into effect, illustrates
the method pursued in dealing with supposed fugitives:—

Although the proposition to repeal the Fugitive Slave Law
of 1850 had been made in Congress in 1860, and repeated in
1861 and 1862, no definite and conclusive action was taken
until 1864. During the session of 1863-1864 five bills were
introduced into the House looking toward the repeal of the
law. In the discussion of the subject the probable effect of
revocation upon the border states was frequently dwelt upon,
and it was urged by many members that the loyal slave states
would consider repeal as "insult and outrage." Mr. Mallory,
of Kentucky, was one of those that took this view. He therefore
demanded that the law "be permitted to remain on the
statute-book," urging, "If you say it will be a dead letter, so
much less excuse have you for repealing it, and so much more
certainly is the insult and wrong to Kentucky gratuitous."
In reply to this and other arguments the need of enlisting
negro soldiers was pressed on the attention of the House, and
it was said by Mr. Hubbard, of Connecticut, "You cannot
draft black men into the field while your marshals are chasing
women and children in the woods of Ohio with a view to
render them back into bondage. The moral sense of the
nation, ay, of the world, would revolt at it."[94] The conclusion
that slavery was already doomed to utter destruction could
not be avoided. The House therefore decided to throw away
the empty guarantee of the institution, and June 13 the
vote on the bill for repeal was taken. It resulted in the
measure being carried by a vote of 82 to 57. When the bill
from the House came before the Senate the question of repeal
was already under consideration, and, indeed, had been for
three months and a half. Nevertheless, the House measure
was at once referred to committee and was reported back June
15. It was then discussed by the Senate for several days and
voted on on June 23, the result being a vote of 27 in favor
of repeal to 12 against it. Two days later President Lincoln
affixed his signature to the bill, and the Fugitive Slave laws
were thereby annulled June 25, 1864. The constitutional
provision for the recovery of runaways, which had been

judicially declared in the decision of Prigg's case to be self-executing
was not cancelled until December 18, 1865, when
the Secretary of State proclaimed the adoption of the
Thirteenth Amendment to the Constitution by the requisite
number of states.