The problem of runaways plagued American slave societies since the seventeenth century and was not solved until the abolition of slavery itself during the civil war. Statutes of the colonial period dealing with indentured servants and slaves contained extensive provisions providing for punishment of runaways. Those relating to black slaves became increasingly severe over time, culminating in various eighteenth-century provisions permitting death, whipping, branding, outlawry, castration, dismemberment, and ear-slitting for runaways and compensation by the colony to masters of "outlying" slaves who were killed.
Provisions for interjurisdictional rendition of fugitives began with the fugitive-servant provisions of the New England Confederation (1643), but until 1787 rendition was a matter of comity between the colonies/states. The northwest ordinance (1787) contained a fugitive slave/ servant clause. The Constitution contained a clause providing that a "Person held to Service or Labour" shall not be freed when he absconds into another state, "but shall be delivered up." The use of the passive voice and the location of the clause in Article IV blurred responsibility for its enforcement, which caused protracted constitutional controversies in the 1840s and 1850s.
In 1793, Congress enacted the first Fugitive Slave Act, which provided that any slave holder or his "agent or attorney" could seize an alleged runaway, take him before a federal judge or local magistrate, prove title to the slave by affidavit or oral testimony, and get a certificate of rendition entitling him to take the slave back to the master's domicile. The constitutionality of the statute was repeatedly upheld by eminent authority: implicitly in joseph story'sCommentaries on the Constitution of the United States (1833); explicitly by Chief Justice William Tilghman of the Pennsylvania Supreme Court in Wright v. Deacon (1819) and Chief Justice Isaac Parker of the Massachusetts Supreme Judicial Court in Commonwealth v. Griffin (1823). Early abolitionist societies worked to prevent free blacks from being kidnapped through the instrumentality of the 1793 act and provided counsel to alleged fugitives. Abolitionists challenged the statute on the grounds that Congress exceeded its powers in forcing state officials to participate in federal rendition proceedings, in permitting rendition from territories as well as states, and in interfering with the rights of the states to protect their free citizens.
Before 1843, a few states enacted personal liberty laws that provided various procedural safeguards, such as habeas corpus or trial by jury, to alleged fugitives. The slave states resented these and challenged their constitutionality in prigg v. pennsylvania (1842). Speaking for a majority of the Court, Justice Joseph Story held that: the fugitive slave clause of the Constitution was an essential compromise necessary to ratification of the Constitution by the southern states; the 1793 act was constitutional; the master had a right of recapture of a runaway slave, derived either from the common law or from the fugitive slave clause; and the Pennsylvania personal liberty law was unconstitutional because it infringed on masters' rights protected by the federal statute. In an obiter dictum, Story stated that the federal government could not constitutionally oblige state officials to participate in enforcement of the act.
Insubstantial as this suggestion was, northern states after 1842 enacted new personal liberty laws prohibiting state officials from participating in enforcement of the federal statute and prohibiting the use of state facilities such as jails for detaining runaways. Abolitionists then mounted a more sophisticated, wide-ranging attack on the constitutionality of the 1793 statute, alleging that it violated the Fifth Amendment's due process clause and the fourth amendment ' ssearches and seizures clause.
Congress, as part of the compromise of 1850, enacted a new Fugitive Slave Act, which was an extension of the 1793 Act, not a replacement for it. It contained these novel features: owners and agents were authorized to seize alleged fugitives with or without legal process; certificates of rendition could be granted by federal commissioners as well as federal judges; any adult male could be drafted into a posse to assist in capture and rendition; obstruction of the act was punishable by a fine of $1,000; the commissioner's fee was $5 if he determined that the black was not a runaway, but $10 if he awarded the certificate of rendition, prompting an abolitionist's remark that the statute set the price of a Carolina Negro at $1,000 and a Yankee soul at $5.
Residents of the free states objected vehemently to the new statute. Throughout the 1850s, dramatic rescues and recaptures of runaways provided real-life drama to accompany the sensational success of the serialized, book, and stage versions of Uncle Tom's Cabin, with its melodramatic runaway scene. Federal authorities and northern conservatives responded to abolitionist challenges and to rescues of fugitives by affirming the constitutionality of the 1850 Act (Chief Justice lemuel shaw of the Massachusetts Supreme Judicial Court in In re Sims, 1851) and by demanding that resistance to enforcement of the measure be prosecuted as treason. Two efforts at doing so, however (resulting from the Jerry rescue, Syracuse, New York, 1851, and the Oberlin-Wellington rescue, northern Ohio, 1858), ended in inglorious failure for the prosecution. In general, however, the northern states attempted to comply with the statute, and most blacks seized as fugitives under the act were sent into slavery.
In a dictum in ableman v. booth (1859) Chief Justice roger b. taney declared the 1850 statute constitutional, but the question was soon to be mooted. After the outbreak of the Civil War, the policies of some Union commanders discouraged the return of runaways who fled behind Union lines. Congress partially repealed the Fugitive Slave Acts in 1862 and then fully in 1864. The whole issue, and the fugitive slave clause of the Constitution, became dead letters with the abolition of slavery in 1864–1865.
William M. Wiecek
Campbell, Stanley W. 1968 The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850–1860. Chapel Hill: University of North Carolina Press.
Hyman, Harold M. and Wiecek, William M. 1982 Equal Justice under Law: Constitutional Development, 1835–1875. New York: Harper & Row.