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CHAPTER IX
PROSECUTIONS OF UNDERGROUND RAILROAD MEN
Pg. 254 -

     THE aversion to a law for the rendition of fugitive slaves that early manifested itself in the North was perhaps fore-shadowed 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 soe 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 Feb. 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

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     ¹. M. G. McDougall, Fugitive Slaves, pp. 17, 18.

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.

[Pg. 255] - GROUNDS OF ATTACK UPON 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.¹
     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 secur-

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     ¹. Statutes at Large, I, 302-305.

[Pg. 256]
ing 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.1  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.2  The question was presented in several subsequent cases of importance arising under the law of 1793, namely Jack vs. Hoppess, in 1845.5  From the reports of these cases one is not able to gather much in the way of direct statement showing what were the grounds

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     ¹. Professor Eugene Wambaugh, of the Law School of Harvard University, in a letter to the author, comments as follows on the source of the injustice wrought by the Fugitive Slave acts: "The difficulty lay in the initial assumption that a human being can be property.  Grant this assumption, and there follow many absurdities, among them the impossibility of framing a Fugitive Slave Law that shall be both logical and humane.  Human beings are entitled to a trial of the normal sort, especially in a case involving the liability of personal restraint.  Chattels, however, are entitled to no trial at all; and it a chattel be lost or stolen, the owner may retake it wherever he finds it, provided he commits no breach of the peace. (3 Blackstone's Commentaries, 4.)  If slaves had been treated as ordinary chattels, there could have been no trial as to the ownership of them, unless, indeed, there were a dispute between competing claimants.  There would have been, however, the fatal objection that thus a free man - black, mulatto, or white - might be enslaved without
a hearing.  Here, then, is a puzzle.  If the man is a slave, he is entitled to no trial at all.  If he is free, he is entitled to a trial of the most careful sort, surrounded with all the safeguards that have been thrown up by the law.  When there is such a dilemma, is it strange that there should be a compromise?  The Fugitive Slave Laws really were a compromise; for in so far as they provided for an abnormal and incomplete trial, a hearing before a United States Commissioner, simply to determine rights as between the supposed slave and the supposed master, they conceded the radical impossibility of following out logically the supposition that human beings can be chattels, and, in so far as they denied to the supposed slave the normal trial, they assumed in advance that he was a slave.  I need not vn-ite of the dilemma further.  A procedure intermediate between a formal trial and a total denial of justice was probably the only solution practicable in those days; but it was an illogical solution, and the only logical solution was emancipation." 
     ² 5 Sergeant and Rawle's Reports, 63.  See Appendix B, p. 368.
     ³ 14 Wendells Reports, 514.  See Appendix B, p. 368.
     ⁴ In the Circuit Court of the United States for the Southern District of New York. 2 Paine's Reports, 352.
     ⁵ 2 Western Law Journal, 282.

[Pg. 257] - DENIAL OF TRIAL BY JURY

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 . . .";¹ 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."²  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,³ 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

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     1 Amendments, Article VII.
     2 Ibid., Article V.
     3 12 Wendells Reports, 315-324.

[Pg. 258]
to seize the 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 1793.¹  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.²  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

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     ¹ 2 Pickering's Reports, 12. See Appendix B, p. 368.
     ² Amendments, Article IV ; 2 Pickering's Reports, 15, 16.

[Pg. 259] - ARREST WITHOUT LEGAL PROCESS

on the ground that slaves were not parties to the Constitution, and that the amendment referred to had relation only to the parties.¹
     The question of arrest without warrant emerged later in several other cases; for example, Johnson vs.Tompkins (1833),² the matter of Peter, alias Lewis Martin (1837),³ Prigg vs. Pennsylvania (1842),⁴ and State vs.  Hoppess (1845).⁵  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.⁶  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."⁷
     For many years before Prigg's case various states in the North had considered it to be within the province of their

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     ¹ 2 Pickering's Reports, 19.
     ² In the Circuit Court of the United States for the Eastern District of Pennsylvania.  1 Baldwin's Circuit Court Reports, p. 571 et seq.  See Appendix B, p. 368. 
     ³ 2 Paine's Reports, 350.  See Appendix B, p. 369.
     ⁴ 16 Peters' Reports, 613.
     ⁵ 2 Western Law Journal, 282.  See Appendix B, p. 371.
     ⁶ 1 Baldwin's Circuit Court Reports, 571; Hurd, Law of Freedome and Bondage, Vol. II, p. 444.
     ⁷ 16 Peters' Reports, 613.

[Pg. 260]
legislative powers to enact laws dealing with the subject of fugitive slaves.  It would be beside our purpose to enter here 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.¹
     In Prigg's case² a statute of Pennsylvania, passed in 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

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     ¹ 12 Wendell's Reports, 311, 316-318.
     ² See Appendix B, p. 370.

[Pg. 261] - ANTAGONISM BETWEEN STATE AND FEDERAL LAWS

such authority was not prohibited to the states nor expressly granted "in terms" to Congress;¹  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;²  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;³  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.⁴  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.⁵
     As the friends of runaway slaves sometimes sought to oppose to the summary procedure of the federal law the

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     ¹ 16 Peters' Reports, 579.
     ² Ibid., 588-590
     ³ Ibid., 595.
     ⁴ Ibid., 602
     ⁵ Ibid., 612-617

[Pg. 262]
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.¹  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;²  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;³ 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.⁴  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.⁵

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     ¹ See Chap. II, pp. 28, 32.
     ² 2 Western Law Journal, 279-293.
     ³ Western Law Journal, 65-71; also, 3 McLean^s Reports, 530-538.
     ⁴ 5 Howard's Reports, 215 et seq.
     ⁵ 2 Western Law Journal, 281, 283 ; 3 McLean, 530

[Pg. 263] - LAW OF 1793 VERSUS ORDINANCE OF 1787

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.¹  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.²  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.³
     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,

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     ¹ 2 Western Law Journal, 288.
     ² 3 McLean's Reports, 532 ; 3 Western Law Journal, 65.
     ³ 5 Howard's Reports, 230, 231.

[Pg. 264]
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."¹  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.²
     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.³  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.⁴  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

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     ¹ 2 Paine's Reports, 354; 2 Western Law Journal, 282.
     ² Paine^s Reports, 354, 355; also, 2 Western Law Journal, 289.
     ³ See Section 3 of the act, Statutes at Large, I, 302-305.
     ⁴ 16 Peters' Reports, 598.

[Pg. 265] - EFFECT OF DECISION IN PRIGG CASE

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.¹  As the decision in the Prigg case carried the weight of great authority, and became a precedent for all future judgments,² 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.³ 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,  .  .  ."⁴  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

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     1 16 Peters' Reports, 608, 622.  See also Marion G. McDougall's Fugitive Slaves, pp. 108, 109.
     2 M. G. McDougall's Fugitive Slaves, p. 28.
     3 See Chap. IX, pp. 245, 246, and Chap. X, p. 337.
     4 Statutes at Large, IX, 462.

[Pg. 266]
imposed by the old.  A fine not to exceed a thousand dollars and imprisonment not to exceed six months constituted the punishment 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 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 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 1850.¹  But the language of the new law no more denied this right than 

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     ¹ Henry W. Rogers, Editor, Constitutional History of the United States as seen in the Development of American Law, Lecture III, by George W. Biddle, p. 152.

[Pg. 267] - OBJECTIONABLE FEATURES OF LAW OF 1850

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.1  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

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     ¹ Section 3 of the law of 1793 provided that "the person to whom such labour or service may be due, his agent or attorney, is hereby empowered to seize and arrest such fugitive from labour, and to take him or her before any judge of the circuit or district courts of the United States, . . . within the state, or before any magistrate of a county (etc. ) . . . wherein such seizure . . . shall be made, and upon proof to the satisfaction of such judge or magistrate . . . it shall be the duty of such judge or magistrate to give a certificate thereof . . . which shall be a sufficient warrant for removing the said fugitive . . . to the state or territory from which he or she fled."
     Section 6 of the act of 1850 provides that "the person or persons to whom such service or labour may be due, or his, her, or their agent or attorney . . may pursue and reclaim such fugitive person, either by procuring a warrant . . . or by seizing and arresting such fugitive, where the same can be done without process, and by taking, or causing such person to be taken, forthwith before such court, judge or commissioner, whose duty it shall be to hear and determine the case ... in a summary manner; and upon satisfactory proof . . . to make out and deliver to such claimant, his or her agent or attorney, a certificate . . . with authority . . to use such reasonable force . . . as may be necessary . . . to take and remove such fugitive person back to the State or Territory whence he or she may have escaped as
aforesaid."

[Pg. 268]
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;¹ the authority of a claimant or his agent to arrest without legal process;² the opposition alleged to exist between the law and the Ordinance of 1787;³ and the power said to be improperly exercised by Congress in legislating upon the subject of fugitive slaves.⁴  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.⁵
     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

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     ¹ Sims' case, tried before the Supreme Judicial Court of Massachusetts, March term, 1851.  See 7 Cushing's Reports, 310.
     Miller vs. McQuerry, tried before the Circuit Court of the United States, in Ohio, 1853.  See 5 McLean's Reports, 481-484.
     Ex parte Simeon Bushnell, etc., tried before the Supreme Court of Ohio, May, 1859.  See 9 Ohio State Reports, 170.
     ² Norris vs. Newton et al., tried before the Circuit Court of the United States, in Indiana, May term, 1850.  See 5 McLean's Reports, 98.
     Ex parte Simeon Bushnell, etc. See 9 Ohio State Reports, 174.
     United States vs. Buck, tried before the District Court of the United States for the Eastern District of Pennsylvania, 1860.  See 8 American Law Register, 543.
     ³ Booth's case, tried before the Supreme Court of Wisconsin, June term, 1854.  See 3 Wisconsin Reports, 3.
     Ex parte Simeon Bushnell, and ex parte Charles Langston, tried before the Supreme Court of Ohio, May, 1859.  See 9 Ohio State Reports, 111, 114-117, 124, 186.
     ⁴ Sims' case.  See 7 Cushing's Reports, 290.  Booth's case. See 3 Wisconsin
Reports.
     ⁵ For the text of the Slave Laws, see Appendix A, pp. 359-366.

[Pg. 269] - POWER OF COMMISSIONERS QUESTIONED

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.¹
     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.²  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

---------------
     ¹ Marion G. McDougall, Fugitive Slaves, pp. 43 and 44, with the references there given; Wilson, Rise and Fall of the Slave Power, Vol. II, pp. 304, 305.  See Appendix B, p. 372.
     ² 7 Cushing's Reports, 287.  The constitutional requirement will he found in Article III, Section 1, of the Constitution of the United States.

[Pg. 270]
Circuit Court of the United States in Ohio in 1853;¹ in Booth's case, argued in the Supreme Court of Wisconsin in 1854;² 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;³  and in the case ex parte Simeon Bushnell, argued and determined in the Supreme Court of Ohio in 1859.⁴  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.⁵  In ex parte Robinson, Judge McLean admitted

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     1 5 McLean's Reports, 481.                9 Ohio State Reports, 176
     2 3 Wisconsin Reports, 39.                  3 Wisconsin Reports, 64.
     3 6 McLean's Reports, 359

[Pg. 271] - REMUNERATION OF COMMISSIONERS

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.¹
     The uncertainly 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 issuers 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.²  Such objection was raised in McQuerrys case, and was answered by Judge McLean.

---------------
     ¹ 6 McLean's Reports, 359, 360.
     ². Hurd, Law of Freedom  and Bondage, Vol. II, p. 747.

[Pg. 272]
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 cases 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."¹
     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 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."²  The severer penalties of the law of 1850 had

---------------
     ¹ 5 McLean's Reports, 481.
     ² 1 Blachford's Circuit Court Reports, 636.

[Pg. 273] - PENALTIES FOR AIDING FUGITIVES

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 following 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.¹
     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.

---------------
     ¹ 4 Washington's Circuit Court Reports, 327-331.

[Pg. 274]
Tomkins, a case belonging to the year 1833.¹  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.²
     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

---------------
     ¹ 4 Baldwin's Circuit Court Reports, 571-605.
     ² Washington's Circuit Court Reports, 327-331

[Pg. 275] - PENALTIES FOR AIDING FUGITIVES

a verdict for the claimant of $1,200 in damages on two counts.¹  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 1847.²
     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 & 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 $2,752.  In the first trial the journey failed to agree.  At the succeeding term of court, however, a verdict for the value of the slaves was found for the plaintiff.³
     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 captive were now taken, was at

---------------
     ¹ 2 McLean's Reports, 612.
     ². 5 Howard's Reports, 215-232; see also Schuckers, Life and Public Services of S. P. Chase, 53-66; Warden, Private Life and Public Services of S. P. Chase, 296-298.
     ³. 4 McLean's Reports, 402-426.

[Pg. 276]
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.¹
     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 give 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."²
     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

---------------
     ¹ 5 McLean's Reports, 92-106.
     ² 2 Wallace Jr.'s Reports, 324-326

[Pg. 277] - PENALTIES FOR AIDING FUGITIVES

the District Court of the United States of 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 $1,00 in attorney's 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.¹
     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, 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.²

---------------
     ¹ 6 McLean's Reports, 259-273.  Mr. Sloane's account of the case will be found in The Firelands Pioneer for July, 1888, pp. 46-49.  A copy of the certificate of the clerk of court there given is here reproduced: -
     "Louis F. Weimer vs. Rush R. Sloane.  United States District of Ohio, in debt.

[Pg. 278]
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 1852.¹
     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 barn 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. Clark'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

---------------
     10 Law Reporter, 395 ; s. c. 5 Western Law Journal, 206; 7 Federal Cases, 1093; for the third trial (1849), see 5 McLean's Reports, 64; s. c. 7 Western
Law Journal, 222; 7 Federal Cases, 1095.  See also The Firelands Pioneer, July, 1888, pp. 41,42.
     ¹ 5 Illinois Reports, 498-618; 14 Howard's Reports, 13, 14.

[Pg. 279] - PENALTIES FOR AIDING FUGITIVES

had little weight with the jury, for it gave a verdict for the claimant and assessed his damages at $1,500.¹
     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.²
     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 Distinct 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.³  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

---------------
     ¹ 4 McLean's Reports, 504-515
     ² 2 Wallace, Jr.'s Reports, 313, 317-323
     ³ 21 Howard's Reports, 510; The Fugitive Slave Law in Wisconsin, with Reference to Nullification Sentiment, by Vroman Mason, p. 134.

[Pg. 280]
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.¹  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

---------------
     ¹ Smedley, Underground Railroad, pp. 107, 108 ; 2 Wallace Jr.'s Reports, 159.

[Pg. 281] - CHRISTIANA CASE, 1854

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 Grier 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.¹
     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

---------------
     1 Still's Underground Railroad Records, pp. 348-368; Smedley, Underground Railroad, pp. 107-130; 2 Wallace Jr.'s Reports, pp. 134-206;
M. G. McDougall, Fugitive Slaves, pp. 50, 51; Wilson, Rise and Fall of the
Slave Power, Vol. H, pp. 328, 329.

[Pg. 282]
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;¹ 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     the U. R. R. that my services would be freely give."²  John Jolliffe, another lawyer of Cincinnati, less known than the antislavery advocates already mentioned, was sometimes associated with Chase and Hayes in pleading the cause of fugitives.³  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 vent 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 1862.⁴  In November, 1852, the legal firm of William H. west and James Walker, of Bellefontaine, Ohio, attempted to release from custody several

---------------
     ¹. Wilson, Rise and Fall of the Slave Power, Vol. I, p. 477.
     ². Letter of Mr. Hayes, Fremont, O., Aug. 4, 1892.
     ³. Reminiscences of Levi Coffin, pp. 548, 549.
     ⁴. Rhodes, History of the United States, Vol. II, p. 364.  The others representing the rescuers were Franklin T. Backus and Seneca O. Griswold.  See bJ. R. Shiperd's History of the Oberlin-Wellington Rescue,p. 14.

[Pg. 283] - COUNSEL FOR FUGITIVE SLAVES

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.¹
     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 1793.²  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. Davis 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.³
     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 Lovejoy, 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 Gushing, of Will County, on a similar charge, and together with John M. Wilson he immediately volunteered to conduct the new case.⁴  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,

---------------
     ¹ Conversion with Judge William H. West, Bellefontaine, O., Aug. 11, 1894.
     ² M. G. McDougall, Fugitive Slaves, p. 35.
     ³ Ibid., pp. 44, 46, 47.
     ⁴ G. H. Woodruff, History of Will County, Illinois, p. 264.

[Pg. 284] -
O. C. Gray and J. O. Glover appeared voluntarily as counsel for the negro.¹  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, Larnard and Arnold.²  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.³
     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."⁴  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

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     ¹ The Ottawa Republican, Nov. 9, 1891. The hearing occurred Oct. 20, 1859.
     ² The Pontiac (HI.) Sentinel, 1891-1892.
     ³ The Tabor (la.) Beacon, 1890-1891, Chap. XXI of a series of articles by the Rev. John Todd, on "The Early Settlement and Growth of Western Iowa."
     ⁴ Underground Railroad Records, p. 367.

[Pg. 285] - LAST CASE UNDER SLAVE LAW OF 1850

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."¹
     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.²
     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 pro-

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     ¹ Smedley, Underground Railroad, p. 359.
     ² This case is given by Mr. Noah Brooks, in his Washington in Lincoln's Time, 1895, pp. 197, 198.

[Pg. 286]
posing, in his message of Dec. 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, Mar. 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.¹  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.”²  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.

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     ¹ Wilson, Rise and Fall of the Slave Power, Vol. Ill, p. 395.
     2 Congressional Globe, Thirty-seventh Congress, First Session, 1356.

[Pg. 287] - PROCLAMATION OF EMANCIPATION

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, 1868, should be “thence-forth 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: -
     “There was committed to the jail in Warren County, Kentucky, as runaway slave, on the 29th September, 1862, a negro man calling himself Jo Miner.  He says he is free, but has nothing to show to establish the fact.  He is about thirty-five years of age, very dark copper color, about five feet eight inches high, and will weigh one hundred and fifty pounds.  The owner can come forward, prove property, and pay charges, or he will be dealt with as the law requires.

     March 16, 1863.  1 m."¹

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     ¹ Liberator, May 1, 1863.  Extract from the Frankfort Commonwealth, quoted by M. G. McDougall, Fugitive Slaves, p. 80.

[Pg. 288] - REPEAL OF THE FUGITIVE SLAVE LAWS

     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."¹  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

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     ¹ Congressional Globe, Thirty-eighth Congress, First Session, 2913.  See also M. G. McDougall, Fugitive Slaves, p. 85.

[Pg. 289]
judicially declared in the decision of Prigg's case to be self-executing was not cancelled until Dec. 18, 1865, when the Secretary of State proclaimed the adoption of the Thirteenth Amendment to the Constitution by the requisite number of states.

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