Part 16

Care must be taken not to confound the formally declared attitude of the Republican Party with that of the Abolitionists. The exact position of many of the leading anti-slavery men of the period is not always easy to determine. Garrison and Phillips were, of course, Abolitionists. Sumner and Chase might be classed as belonging to either or both—Republicans and Abolitionists. "Yet," says Professor A. B. Hart, "two such conspicuous champions of anti-slavery as John Quincy Adams and Abraham Lincoln always said that they were not Abolitionists."[283]

Alluding to the extra-constitutional measures advocated by the Abolitionists, Mr. Lincoln in his speech at Quincy, Ill., October 13, 1858, said:

"If there be any man in the Republican Party who is impatient over the necessity springing from its (slavery's) actual presence, and is impatient of the constitutional guarantees thrown around it, and would act in disregard of these, he too is misplaced, standing with us. He will find his place somewhere else; for we have a due regard, so far as we are capable of understanding them, for all these things."[284]

So too with respect to armed invasions and the attempt of John Brown and his abettors to precipitate servile insurrection.

Mr. Lincoln, in his speech at Cooper Union, New York, February 27th, 1860, said:

"You charge that we stir up insurrections among your slaves. We deny it; and what is your proof? Harper's Ferry! John Brown!! John Brown was no Republican; and you have failed to implicate a single Republican in his Harper's Ferry enterprise."[285]... Continuing, he said: "John Brown's effort was peculiar. It was not a slave insurrection. It was an attempt by white men to get up a revolt among slaves, in which the slaves refused to participate. In fact, it was so absurd that the slaves, with all their ignorance, saw plainly enough it could not succeed. That affair, in its philosophy, corresponds with the many attempts, related in history, at the assassination of kings and emperors."[286]

SLAVERY A DOOMED INSTITUTION

If it be urged that Mr. Lincoln's oft-quoted words uttered before his nomination for the Presidency, that "The Government could not endure half slave and half free," were at war with his assurances and that Virginia was thus threatened in her "peculiar institution," yet it must be remembered that Mr. Lincoln, time and again before his election, disclaimed any such purpose and denied that his words were susceptible of any such construction.

Morse, in his _Biography of Lincoln_, says: "Again and again Mr. Lincoln called attention to the fact that he had expressed neither 'a doctrine' nor an 'invitation'; nor any 'purpose,' nor 'policy' whatsoever."[287]

To quote the language of Mr. Lincoln himself in meeting the charge in his debate with Stephen A. Douglas:

"In the passage I indicated no wish or purpose of my own. I simply expressed my expectations. Cannot the Judge perceive a distinction between a purpose and an expectation? I have often expressed an expectation to die, but I have never expressed a wish to die."[288]

Thomas Jefferson and other Virginia opponents of slavery had often made similar predictions. Even as a prophecy of emancipation, it involved no other suggestion than that slavery was an antiquated institution at war with the genius of our government and the spirit of the age and was doomed by forces world wide in their potency to ultimate extinction.

Footnote 275:

From Platform of National Republican Party, Chicago Convention, May, 1860.

Footnote 276:

From President Lincoln's Inaugural Address, March 4, 1861.

Footnote 277:

_Causes of the Civil War_, Chadwick, p. 143.

Footnote 278:

_Lincoln and Slavery_, Arnold, p. 695.

Footnote 279:

_Idem_, p. 695.

Footnote 280:

_Story on the Constitution_, Story, Vol. II, p. 670, Note 2.

Footnote 281:

_Rise and Fall of the Confederate Government_, Davis, Vol. I, p. 262.

Footnote 282:

Joint Resolutions adopted by Congress, July 22, 1861.

Footnote 283:

_Slavery and Abolition_, Hart, p. 175.

Footnote 284:

_Abraham Lincoln, Speeches, Letters and State Papers_, N. & H., Vol. I., p. 463.

Footnote 285:

_Abraham Lincoln, Speeches, Letters and State Papers_, N. & H., Vol. I., p. 607.

Footnote 286:

_Idem_, p. 609.

Footnote 287:

_Abraham Lincoln_, Morse, p. 123.

Footnote 288:

_Lincoln-Douglas Debates_, p. 59.

XXVIII

THE ATTITUDE OF CERTAIN NORTHERN STATES

The constitution of the United States provides: "2. A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

No person held to service or labor in one state, under the laws thereof, escaping into another state, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."[289]

ORIGIN OF THE FUGITIVE SLAVE LAW

The first of the foregoing clauses provides for the return of fugitives from justice, and the second, of fugitive slaves.

The attitude of certain Northern States with reference to these two provisions of the constitution was a subject of profound importance in the years immediately preceding the Civil War, and constituted one of the greatest grievances of the people of the slaveholding states.

At the time the constitution was adopted, slavery existed in every one of the thirteen states except Massachusetts, though in some others acts had been passed providing for its gradual abolition. It was deemed essential, therefore, to the peaceful relations of the several states as well as the legal rights of slaveholders that some provision should be inserted in the Federal Constitution dealing with the return of fugitive slaves as well as fugitives from justice. If a slave could, by passing from New York into Massachusetts, absolve himself from slavery with no remedy for the master except the grace of the latter state, in which the institution was not recognized, then not only were the rights of the slaveholding citizens of New York dependent upon the laws of Massachusetts, but such conditions would doubtless engender strife and reprisals between the different states of the Union.

The necessity, as well as the justice, of fugitive slave laws was recognized almost contemporaneously with the introduction of slavery into this country. Thus, in the Article of Confederation adopted in 1643, between the colonies of Plymouth, Massachusetts, Connecticut and New Haven, it was provided,

"If any servant runn away from his master into any other of these Confederated Jurisdiccons, that in such case upon the Certyficate of one Magistrate in the Jurisdiccon out of which the said servant fled, or upon other due proofe, the said servant shall be delivered either to his master or any other that pursues and brings such certyficate or proofe."[290]

Provisions of like character were incorporated in many of the treaties between the various colonies and the Indian tribes, and later between the United States Government and the Indians.

The Ordinance of 1784, as adopted by Congress, contained no provision for the return of fugitive slaves escaping into the territory northwest of the Ohio River, and as we have seen, the provision prohibiting slavery therein had been stricken out before its adoption.

On the 16th of March, 1785, Rufus King of Massachusetts presented a resolution amending the Ordinance of 1784, so as to prohibit slavery in the northwest territory, which resolution was referred to a committee consisting of King, William Howell and William Ellery; the last two members being from Rhode Island.

On the 6th of April, 1785, a report was presented from this committee to Congress, providing for an amendment of the existing ordinance, so as to exclude slavery from the northwest territory after the year 1800, "the resolution to be an article of compact" between the thirteen original states and those created out of the territory. The amendment so reported also made provision for the return to their masters of fugitive slaves escaping into the territory from any of the thirteen original states.[291]

No action was taken upon this report, but at the time the Ordinance of 1787 was under consideration, July 13th, 1787, a provision was inserted prohibiting slavery in the northwest territory along with a fugitive slave clause, by the unanimous vote of all the states present.[292]

FUGITIVE SLAVES AND THE CONSTITUTION

The same year, the Constitutional Convention, in session at Philadelphia, inserted a like fugitive slave clause in the Federal Constitution.

On the 12th of February, 1793, Congress passed an act providing the method for carrying into effect the section of the constitution relating to fugitives from justice and fugitive slaves. Both subjects are treated and provided for in the same act. It passed both houses of Congress by practically unanimous votes—Washington approving the bill with his signature.

RETURN OF FUGITIVE SLAVES

By this statute, the authorities of the several states were charged with the duty of executing the law with reference to the return of fugitives from justice.

With respect, however, to fugitive slaves, the authority and burden of dealing with their return was placed upon officers of the Federal Government as well as upon certain state officials. Despite the somewhat cumbrous character of the law, the return of fugitives from justice and of fugitive slaves was assured, and little controversy arose until some forty years after its enactment. But with the rise of the Abolitionists at the North difficulties in executing the law began to appear—especially as to fugitive slaves.

THE UNDERGROUND RAILROAD

William Lloyd Garrison began the publication of _The Liberator_ in 1831. The American Anti-Slavery Society was organized in 1833 and soon thereafter the Underground Railroad commenced its operations. Under the influence of these forces, not only was the execution of the law with reference to fugitive slaves in many of the Northern States greatly hindered but the slaves enticed or escaping from their masters became much more numerous. The irritating effects of these conditions upon Southern slaveholders were intensified by the suggestion that the law was fairly enforced as long as there were slaves in the so-called free states. In time, however, the Legislatures of many of the Northern States adopted state laws which were undoubtedly designed to defeat the execution of the Federal statute, and thus was added the sanction of states through their law-making bodies to the illegal attitude and acts of their citizens. This political action of these states not only aroused the indignation of slaveholders, but enlisted in their behalf the sympathies of their non-slaveholding fellow citizens. The attitude of the Abolitionists and the action of the Northern States above referred to were regarded by the people of Virginia as a violation of the constitutional rights of their state, as well as a wanton injury to the property interests of her slaveholding citizens. The Abolitionists, by every form of suggestion and appeal, incited and assisted slaves to desert their masters, while the Underground Railroad provided increasing facilities for accomplishing the result.

Professor A. B. Hart, of Harvard University, says:

"The Underground Railroad was not a route but a network; not an organization, but a conspiracy of thousands of people banded together for the deliberate purpose of depriving their Southern neighbors of their property and of defying the Fugitive Slave Laws of the United States."[293]

With such a system in active operation, it only became necessary, in order to invest the whole movement with the dignity of state usurpation and wrong, for states to enact the so-called Personal Liberty Laws.

Footnote 289:

Constitution of the United States, Article IV, Sub-section 2.

Footnote 290:

_Plymouth Colony Records_, IX, p. 5, and _Fugitive Slaves_, Boston, 1891, McDougall, p. 7.

Footnote 291:

_History of the Ordinance of 1787_, American Antiquarian Society, new series, Vol. V, p. 315.

Footnote 292:

_Idem_, p. 335.

Footnote 293:

_Slavery and Abolition_, Hart, p. 228.

XXIX

THE ATTITUDE OF CERTAIN NORTHERN STATES (Concluded)

THE PERSONAL LIBERTY LAWS

Beginning in 1837, Massachusetts adopted the first of the so-called Personal Liberty Laws, which were followed by others of like import enacted by Vermont, New York and Connecticut. The ostensible object of these statutes was to protect free negroes, but as no such laws were necessary until the rise of the Abolitionists and the operations of the Underground Railroad, they were generally accepted as efforts on the part of these states to assist these agencies and defeat the clause of the constitution of the United States which provided for the return of fugitive slaves.

In 1842, the Supreme Court of the United States decided that so much of the Fugitive Slave Law of 1793 as authorized or required state officials to assist in executing the law was unconstitutional, and that upon Federal authorities must rest the whole burden.[294] This decision was followed by a new series of statutes in Massachusetts, Vermont, Pennsylvania, and Rhode Island.[295]

On the 18th of September, 1850, Congress passed another Fugitive Slave Law amending the act of 1793 so as to charge Federal officials with the whole duty of carrying into effect the clause in the constitution providing for the return of fugitive slaves, and to remedy the difficulties resulting from the action of the Abolitionists and the acts passed by certain states as above referred to. This aroused fresh antagonism to the constitution and the efforts of the Federal Government to carry the same into effect. The constitutionality of the new law was denied and though affirmed by the Supreme Court, its execution in the foregoing states was much embarrassed by a new series of state statutes. Laws of like import, with like results, were also enacted by Wisconsin, Michigan, Connecticut and Maine.

In some instances, the decision of the Supreme Court of the United States affirming the constitutionality of the statute was challenged by the legislative department of state governments, and the right of the former tribunal to fix the obligations of states and citizens with respect to the law strenuously denied.

Thus, in Wisconsin one Sherman M. Booth had been indicted in the Federal Court for a violation of the Fugitive Slave Law enacted by Congress, and, after trial and conviction, was sentenced for the offense. An application for a writ of habeas corpus was presented by Booth to the Supreme Court of Wisconsin and his release prayed for on the ground that the Federal statute was unconstitutional. The Supreme Court of Wisconsin took cognizance of the case and discharged the prisoner from the custody of the Federal authorities.[296]

An appeal was taken to the Supreme Court of the United States where the constitutionality of the Federal statute was affirmed, the judgment of the Supreme Court of Wisconsin reversed and Booth remanded to custody.[297] Thereupon, the General Assembly of Wisconsin on the 16th of March, 1859, adopted a series of resolutions in which, after denying the right of the United States Supreme Court to take cognizance of the above mentioned case, they declared:

"That the government, formed by the constitution of the United States, was not made the exclusive or final judge of the powers delegated to itself: but that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself as well of infractions as of the mode and measure of redress.

"That the principle and construction contended for by the party which now rules in the councils of the nation, that the General Government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers; that the several states which formed that instrument being sovereign and independent have the unquestionable right to judge of its infraction and that a positive defiance by those sovereignties of all unauthorized acts done or attempted to be done under color of that instrument is the right remedy."[298]

STATE DEFIANCE OF FUGITIVE SLAVE LAWS

These outspoken and persistent attempts of great states to repudiate their obligations to the constitution and to nullify the laws of Congress had a most reactionary influence upon slaveholders and their sympathizers in Virginia and the South and filled the minds of thoughtful men with the gravest forebodings for the peace and preservation of the Union.

President Buchanan in his message to Congress, December, 1860, refers to the action of the states in nullifying the Fugitive Slave Law enacted by Congress, as "the most palpable violation of constitutional duty which has yet been committed."

Governor Banks in his address before the Legislature of Massachusetts which assembled on the first Wednesday in January, 1861, referring to the statute enacted in that state antagonistic to the act of Congress for the return of fugitive slaves, and the consequent imputation which it brought upon the loyalty of Massachusetts to the Union and its constitution, said:

"It is because in the face of her just claims to high honor I do not love to hear unjust reproaches passed upon her fame—that I say as I do, in the presence of God and with a heart filled with responsibilities that must rest upon every American citizen in these distempered times, I cannot but regard the maintenance of a statute, although it may be within the extremest limits of constitutional power, which is so unnecessary to the public weal and so detrimental to the public peace as an inexcusable public wrong. I hope by common consent it may be removed from the statute book and such guarantees as individual freedom demands be sought in new legislation."[299]

CONGRESS ON STATE INTERFERENCE

Congress, in February, 1861, adopted the report of the Committee of Thirty-three of which Thomas Corwin of Ohio was chairman, which after reciting "that all attempts on the part of the Legislatures of any of the states to obstruct or hinder the recovery," of fugitive slaves, "are in derogation of the constitution ... and dangerous to the peace of the Union," resolved

"That the several states be respectfully requested to cause their statutes to be revised, with a view to ascertain if any of them are in conflict with or tend to embarrass or hinder the execution of the laws of the United States ... for the delivery up of persons held to labour by the laws of any state and escaping therefrom; and the Senate and House of Representatives earnestly request that all enactments having such tendency be forthwith repealed as required by a just sense of constitutional obligations and by a due regard for the peace of the Republic."[300]

President Lincoln in his inaugural address, referring to the clause of the constitution providing for the return of fugitive slaves, and the contention as to whether the same should be executed by Federal or state officials, said: "If the slave is to be surrendered, it can be of little consequence to him or to others by which authority it is done. And should any one in any case be content that his oath should go unkept on a merely unsubstantial controversy as to how it shall be kept?"

RHODE ISLAND ALONE ACCEDES

Despite these considerations, Rhode Island alone repealed the obnoxious statutes, and great leaders of the Republican Party frankly confessed that the constitution and the law would not be respected in certain of the Northern States. Salmon P. Chase, speaking in the Peace Conference at Washington, in February, 1861, alluding to the provision of the constitution for the return of fugitive slaves, said: "The people of the free states, however, who believe that slave-holding is wrong cannot and will not aid in the reclamation, and the stipulation becomes therefore a dead letter."[301]

Of the Personal Liberty Laws Mr. George Lunt of Boston in his work, _Origin of the Late War_, says: "They constitute an extreme exemplification of the broadest claim to state sovereignty, and put the states which authorized them in direct hostility to the United States. They were not one whit more defensible than the Rebellion itself to which they had such a principal part in preparing the minds of the seceding states."[302]

FUGITIVES FROM JUSTICE

Closely associated with the controversies growing out of the return of fugitive slaves and the action of certain Northern States, in defeating the provision of the constitution in regard thereto, was the attitude of many of the same states with respect to the provision for the return of the fugitives from justice. A few notable instances will suffice to illustrate the subject and its profound influence in arraying Southern States, as states, against certain of their Northern sisters.

NON-COMPLIANCE WITH CONSTITUTION

In 1837 the Governor of Georgia made requisition upon the Governor of Maine for the return to the former state of the captain of a ship charged with aiding and abetting a slave to desert his master. The Governor of Maine refused to comply with the requisition, alleging that the laws of that state did not recognize slavery or the offense complained of as an indictable one. Thereupon the Legislature of Georgia petitioned Congress to enact some law to compel state authorities to comply with this provision of the Federal Constitution. No action, however, was taken by Congress, nor was the slave or his abductor ever carried back to Georgia.[303]

In 1841 the Governor of Virginia made requisition upon the Governor of New York for the return of two men indicted in the former state for aiding and enticing slaves to leave their masters. William H. Seward was at that time Governor of New York. He refused to honor the requisition, alleging that the offense for which the parties were indicted was not one deemed criminal by the laws of New York or the nations of the world. A long and peace-destroying controversy in which the Legislatures of the two states became involved followed; but the fugitives were never returned, and the people of Virginia felt that the highest law officer of a sister state had been recreant to his obligations to the Federal Constitution and reckless of the rights of their state.