Fugitive Slaves (1619-1865). Marion Gleason McDougall
principle thus apparently established by custom was overthrown by a succession of legal decisions, culminating in the famous Somersett Case. It was first decided by Thomas Grahame, judge in the Admiralty Court, Glasgow, that a certain negro who had been brought into Great Britain must be liberated, on the ground that a guiltless human being taken into that country must be free.41 In 1762 occurred another similar case. A bill had been filed in equity by an administrator to recover money given by his intestate to a negro brought to England as a slave. The suit was dismissed by Lord Northington, who said that as soon as a man set foot on English ground he was free.42
The Somersett case came ten years later. The circumstances were as follows. A Mr. Stewart, accompanied by his slave Somersett, left Boston on the 1st of October, 1769, and went to London, where he kept his slave until October 1, 1771. Then Somersett ran away, but his owner soon secured him and had him placed on board a vessel bound for Jamaica, probably with the intention of selling him as a slave. A writ of habeas corpus was then served upon the captain of the ship, and on the hearing Lord Mansfield decided that Somersett must be discharged. In England, he said, slavery could exist only by positive law; and in default of such law there was no legal machinery for depriving a man of his liberty on the ground that he was a slave. The importance of the case for the colonies lay not in the assertion of the principle that slavery depended on positive law, for the American statute-books were full of positive law on slavery; the precedent thus established determined the future course of England against the delivery of fugitives, whether from her colonies or from other countries.43
§ 13. International regulations under the Articles of Confederation (1781–1788).—When, on March 1, 1781, the Articles of Confederation went into effect, the only action taken by the United States on the subject of fugitives had been the negotiation of a treaty with the Delaware Indians, August 7, 1778, by which the parties bound themselves not "to protect in their respective States criminal fugitives, servants, or slaves, but the same to apprehend, secure, and deliver."44 In seven of the eight other treaties negotiated with Indian tribes from 1784 to 1786, clauses were introduced for the return of black prisoners, or of "negroes and other property."45 The States affected were chiefly Southern; but the article on the same subject in the Treaty of Peace in 1782 and 1783, was intended as much to protect the slaveholders of New York as those of Virginia. It was distinctly agreed that the British should not carry away "any negroes or other property."46 The failure to abide by this agreement led to reclamation by the American government, but no indemnity was ever secured.47
English Law. Northwest Ordinance.
§ 14. Ordinance for the Northwest Territory.—Since all the thirteen colonies recognized slavery, the Revolution made no difference in any previous intercolonial practice as to the delivery of slaves; in framing the Articles of Confederation no clause on the subject was thought necessary. The precedent of the New England Confederation was forgotten or ignored. But the action of the States of Vermont, Pennsylvania, Massachusetts, Connecticut, and Rhode Island, in taking steps toward immediate or gradual emancipation, from 1777 to 1784, brought up a new question—the status of fugitives in free regions. Before the change of conditions in the States was completely understood, the same question had arisen in the Western territories. Jefferson, in 1784, proposed to draw a north and south line through the mouth of the Kanawha, west of which there should be no slavery after 1800.48 The next year a Northern man proposed a similar limitation in the territory north of the Ohio, and added a clause for the return of fugitive slaves to the original slave States.49 Neither of these two propositions was carried, but the principles both of exclusion of slavery and of the return of fugitives appear in the Northwest Ordinance of 1787, the first legislation by Congress looking toward the surrender of fugitives by any Territory or State. In providing a government for the new Territory, it was enacted, July 13, 1787, that "any person escaping into the same from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid."50 The fugitive clause seems to have provoked no discussion, but to have been accepted as a reasonable condition of the limitation of slavery.
Fugitive Question in Constitutional Conventions.
§ 15. The Fugitive question in the Constitutional Conventions.—While the Northwest Ordinance was passing through Congress, the Philadelphia Convention was framing a new Constitution, and the return of fugitives was again eagerly insisted upon by the slave States. The necessity of some positive stipulation that fugitives should be returned was felt to be even more necessary in a Constitution meant permanently to bind together a free and a slaveholding section. The only debate of which we have a record occurred August 28, 1787. Mr. Butler of North Carolina pressed the point in behalf of the Southern States. To his first proposition, "that fugitive slaves and servants be delivered up like criminals,"51 Mr. Wilson objected; he saw no reason for obliging the state to arrest fugitives at public expense, while Mr. Sherman saw no more propriety in the public seizing and surrendering a slave or servant than a horse.52 Mr. Butler therefore withdrew the proposition. He soon introduced a more particular provision, which was accepted and inserted in the Constitution, as follows:—
"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."53
In the various Constitutional Conventions, there was little discussion upon the matter. The Southern States in general considered the clause sufficient to protect their property. General Charles C. Pinckney, in South Carolina, said: "We have obtained the right to recover our slaves in whatever part of America they may take refuge, which is a right we have not had before. In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could, but on the whole I do not think them bad."54 In North Carolina, Mr. Iredell explained to the Convention that the Northern delegates, owing to their peculiar scruples on the subject of slavery, did not choose the word "slave" to be mentioned; but since the present laws were so prejudicial to the inhabitants of the Southern States, some such clause was necessary.55 In Virginia, Mr. Grayson discussed the provision giving Congress exclusive legislation over ten square miles surrounding the capital. It seemed to him that, unless the ten miles square be considered a State, "persons bound to labor who shall escape thereto will not be given up. For they are only to be delivered up after they shall have escaped into a State."56 This objection, though perfectly good at the time, was later overcome by the adoption by Congress of the laws of Maryland for the regulation of the District of Columbia, whereby it was made slave territory. Mr. Mason did not think the clause provided sufficiently for the protection of their slaves,57 but Mr. Madison urged its adoption, as a better security than anything they then had.58
In the North, there was apparently no discussion upon this article. Everywhere, however, it was thought that without such a clause the Southern States would not consent to the Union, and, in a spirit of compromise, the provision was accepted.
CHAPTER II.
LEGISLATION FROM 1789 TO 1850.
§ 16. Effect of the fugitive slave clause in the Constitution.—By obtaining in the Constitution the insertion of a clause requiring the return of fugitives, a great step for the advancement of the interests of slavery had been taken. For this embodiment in the Constitution ever afterward formed a basis for the slaveholder's argument that the Constitution recognized and defended slavery, and was a justification to Northern men in their support of the later fugitive slave laws.
Although the clause did not in terms apply to the Territories, the Ordinance of 1787 was, on August 7, 1789, confirmed in terms