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CHAPTER II. The Law of the Land.
    The Early Compromises of the Constitution—Pennsylvania’s Move Toward Abolition—The Act of 1826—The Prigg Case—Border Troubles—The Fugitive Slave Law of 1850—Wrongs of Escaped Slaves and Rights of Their Owners.

It is entirely unnecessary for the purposes of this particular story to enlarge upon, or to review at length, the long debate, the innumerable compromises, the many makeshifts and the unending controversies which attended the discussion of the slavery question from the agitation and adoption of the Federal Constitution to the enactment of the Fugitive Slave Law of 1850—and which then left it utterly unsettled. It is, however, important that a few plain landmarks of the law be kept in sight to guide one who would fitly study the general history of the times and fairly estimate the significance of the local events to be narrated.

The union of the States was only effected by the adoption of Art. IV; the general purpose of which was to require each State to give full faith and credit to the public acts and records of other States. The exact language of its section 3 was:

“No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”

No union could have been effected without this agreement. Whether that federation was a contract from which any party to it could retire, for a violation of it by other parties thereto, need not be discussed here. The affirmative of that[Pg 6] proposition was not the creed of any particular party or section. It was originally maintained by New England Federalists; it was later defended by Southern Democrats; it was at last decided adversely in battle and by the sword. While there is now general acquiescence in the result, the final decision was not the prevailing doctrine of the people of the United States in 1851.

Under the Constitution the Right to Reclaim the fugitive slave was no more unmistakable than the Duty to Return him. The Law of the Land gave to each State the right to regulate its own domestic institutions; and that right was expressly recognized and guaranteed even by the Republican party and by Abraham Lincoln long after the outbreak of the Civil War. The slavery questions upon which political parties differed up to 1851 were not disputes as to the rights of slave owners and slaves in Slave States; nor as to the rights of slave owners against their escaped slaves in Free States, but as to the extension of slavery and the status of the institution in the National territories.

The prevailing popular misapprehension on this subject may be easily pardoned when it is observed that so eminent an authority as Oswald Garrison Villard, in his recent excellent biography of John Brown, says the Fugitive Slave Law of 1850 “made legal in the North the rendition of negroes who had found their way to Free States.” That proposition was recognized by all political parties from 1793 to 1863.

DICKINSON GORSUCH.
DANGEROUSLY WOUNDED IN THE RIOT

The Fugitive Slave Act of 1793 was passed in strict conformity with the Constitution of the United States; and it impressed upon the executive authorities of the several States the duty of arrest, and upon their magistrates the obligation to hear and commit the fugitives for return. That act was generally recognized as just in its essence and object. As late as 1850 even the Free Soil party assented to the legal principle it involved. In execution, however, its processes were greatly abused; unlawful seizures, unwarranted[Pg 7] reclamations and ruthless kidnappings were common occurrences in the lower parts of the Border States along the line of Slavery and Freedom. Pennsylvania, after respectful hearing of the Maryland Commissioners and due consideration for their suggestions, enacted the Act of 1826, which made the State Courts the arbiters of claims to fugitives; forbade justices to exercise these powers; and, in the line of Pennsylvania’s movements since 1780 to extinguish slavery and protect free persons, it made the free-born children of escaped slaves citizens of Pennsylvania and put them under its protection.

This legislation accorded with judicial decisions of the highest court in Pennsylvania. In Commonwealth v. Halloway, 2 S. & R., 305 (1816), Mary, a negro slave of James Course of Maryland, absconded from her master and came to Philadelphia, where, after she had resided for about two years, her child Eliza was born. It was held that under the Act of March 1, 1780, which Pennsylvania passed “for the gradual abolition of slavery,” this child, born as she was, was entitled to freedom; that the provision of the Federal Constitution for the return of a slave from one state “escaping into another,” did not apply to the free-born child of a fugitive, and that even under the Constitution of the United States the child Eliza was born free. Justice Gibson filed a concurring opinion, at the conclusion of which he said: “Whether this case is to be considered a hard one or not will depend much upon the temper with which the mind may contemplate the positive and artificial rights of the master over the mother, on the one hand, or on the other the natural rights of her child.”

After the Act of 1826 the border troubles, especially between York and Lancaster Counties, Pennsylvania, and Cecil, Harford and Baltimore Counties, Maryland, were much intensified. Mason and Dixon line was the imaginary demarcation between two wholly antagonistic social and political[Pg 8] orders. The same person might be a Maryland slave under Maryland law and a Pennsylvania freeman under Pennsylvania law. Owners and agents, armed with Maryland authority to reclaim property, made theirs by Maryland law, were felonious kidnappers in Pennsylvania. The anomalous condition of affairs and the legal difficulties arising out of it are best illustrated by actual facts. A slave woman escaped from her owner, James S. Mitchell, of Cecil County, Maryland, in 1845. During her absence, as a fugitive from his service, she had given birth in New Jersey to an illegitimate child. Through the instrumentality of agents, residing in Pennsylvania, Mitchell apprehended the woman, who together with the child, had been delivered to him at Elkton, in Cecil County. The woman was taken in Pennsylvania by George P. Alberti and James Frisby. These agents, themselves fearing to incur possible responsibilities, had repeatedly refused to take the child with the mother; until finally overcome by the entreaties of the mother herself, they yielded to their feelings of benevolence, and assumed the risk. They were arrested for kidnapping; evidence to show their motives in including the child in the return was excluded, and they were sentenced to long terms in the penitentiary—for permitting it to accompany the mother, whose own recapture and return by them were admittedly lawful. The state of the record of the case was such that it could not be appealed to the United States Supreme Court. Mitchell himself, who had not even been in Pennsylvania, was indicted here for kidnapping the child and was subject to seven years in the penitentiary. The Governor of Pennsylvania issued, and the Governor of Maryland declined to honor, a requisition for him. There were many other cases of which this was a type.

On the other hand, there were unquestionably well-authenticated cases of slaves returned in violation of their legal claims and of free negroes brutally kidnapped and remorselessly[Pg 9] sold to slavery without a fair hearing and adjudication of their rights. The offenders were often protected by legal technicalities, obstructions or difficulties, and by friendly jurisdictions North or South.

A case pregnant with great legal and political consequences finally arose under the conflicting claims of Maryland and Harford County on one side and Pennsylvania and York County on the other. It reached the Supreme Court of the United States and the contest was a momentous battle in the campaign of pro- and anti-slavery agitation. Lawyers will find it fully reported in 16 Peters, U. S., 539 (1842):

Edward Prigg, a citizen of Harford County, Maryland, together with Nathan S. Bemis, Jacob Forward and Stephen Lewis, Jr., were indicted in York County, Pennsylvania, O. and T., for kidnapping an alleged free child of Margaret Morgan, in violation of the Pennsylvania law of 1826, which made it a felony, punishable with from seven to twenty-one years imprisonment at hard labor, to carry off, sell or detain a free negro from Pennsylvania. Prigg was the agent—and the others his assistants—of Margaret Ashmore, owner of Margaret Morgan, who escaped from her and fled to Pennsylvania in 1832. Her children, taken back to Maryland by Prigg, were born in Pennsylvania—one of them more than a year after she escaped. Under Pennsylvania law they were free; under Maryland law and the common law principle that “the brood follows the dam” they were slaves.[A] To avert the disastrous results that always follow a conflict of laws between neighbors, Pennsylvania and Maryland agreed that the facts should be the subject of a special verdict, so that after Prigg’s conviction and sentence his case might be heard and the issue it involved be determined by the highest Federal Court of final jurisdiction and of last resort.

[Pg 10]The United States Supreme Court held that the Federal Constitution self-executed its provisions; that the owner of a fugitive slave could retake him wherever found; and that the National government—not the State governments—must support and enforce this right; that the Fugitive Slave Law of 1793 recognized this and left nothing on the subject to State regulation. But the Court doubted whether State magistrates or officials were bound to perform any duty imposed upon them in this respect by a Federal law; and the State statute under which Prigg was indicted was held to be unconstitutional and void.

In the discussion Meredith and Hambley appeared for Prigg, and virtually for Maryland. For the Commonwealth of Pennsylvania appeared Attorney General Ovid F. Johnson (under Governor D. P. Porter); and he frankly stated that the real and substantial parties to the controversy were Maryland and Pennsylvania, whose officials came into that high Court “to terminate disputes and contentions which were arising and had for years arisen along the border line between them on this subject of the escape and delivering up of fugitive slaves. Neither party sought the defeat or the humiliation of the other. It was for the triumph of the law they presented themselves before the Court. They were engaged under an imperative sense of duty in the work of peace; and he hoped he would be pardoned if he added of patriotism also.”

Story, of Massachusetts, delivered the Court’s opinion. He had been appointed by Madison, served a long time on the bench and was a jurist of high renown; but Taney, C. J., while concurring in the judgment, expressly dissented from the doctrine that the State authorities were “prohibited from interfering for the purpose of protecting the rights of the master and aiding him in the recovery of his property.” He thought the contrary to be not only the right, but the duty of the State. The Federal Constitution meant this when[Pg 11] it declared “the fugitive shall be given up.” He predicted that if the State officials under the State laws could not arrest the fugitive, “the territory of the State must soon become an open pathway for the fugitives escaping from other States.” Justices Baldwin and Thompson concurred with Taney; Wayne with Story, and also Daniel, filing opinions. McLean held that Congress might prescribe the duty of State officers. All seven Justices expressed separate opinions.

Taney’s forecast was right. Maryland and Pennsylvania—especially the southeastern counties of this State—soon became an open pathway for the fugitive slaves. Their track was lighted from many a window in the households of the Chester Valley; and two main lines of the Underground Railroad ran through Lancaster County, close to where the two lines of the great steam railway which traverses it from east to west are now located.

Acquiescing in this decision Pennsylvania, in 1847, repealed the provisions of the Act of 1826 repugnant to the Federal Constitution; and remanded the whole subject to Congress. Like legislation in other States left the slaveholders stripped of the remedies they claimed under the Constitution. Hence the Fugitive Slave Law of 1850, with its more drastic processes, manifold deputies marshal, “posse comitatus” of the bystanders, penalties for obstruction of processes and many other provisions—which if they had been tolerable under the conditions prevailing long after 1793, had now become odious to the largely increased and rapidly increasing number of persons who were opposed to all forms of slavery, regardless of its constitutional protection or right at law.

For this class Lancaster County’s then representative in Congress, Thaddeus Stevens, was the boldest and most aggressive spokesman. When, in 1851, he denounced every form of human slavery he was so far in advance of his party (Whig[Pg 12] then and Republican ten years later) that in 1861 a Republican Congress, Charles Francis Adams, of Massachusetts, the first Free Soil Candidate for Vice President, heading the “Ayes,” by an overwhelming vote declared that all attempts of the States to override or obstruct the Fugitive Slave Law were unconstitutional and “dangerous to the peace of the union”; that all enactments to that end should be repealed and there was no authority outside of a State wherein then existed a right “to interfere with slaves or slavery in such States, in disregard of the rights of their owners or the peace of society.”

AN OLD SOUTHERN COOK.
SLAVE AND SERVANT IN THE GORSUCH FAMILY. MORE THAN 100 YEARS OLD.



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