Fugitive Slavery

AuthorWilliam M. Wiecek

Page 1159

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'S Commentaries 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...

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