While White Americans often boasted of their “United States” during the early years of the Republic, African Americans knew that the country’s largest minority dissented from any claims of unity. Blacks knew that by fleeing from the Slave South to the Free North, they were entering a different county. As they entered the North in increasing numbers throughout the 1840s and 1850s, they exposed as a lie the claim that slavery was a benign institution. Columbia University American Studies Professor Andrew Delbanco offers a detailed history of the development of the fugitive slave crisis, the ways Congress tried to address it by increasing Federal intervention in the states, and the impact of the growing interference with local freedoms in the name of preserving slavery.
When slaves ran away, they brought the realities of slave life to the Northern communities through which they traveled. Delbanco writes that “Fugitives from slavery ripped open the screen behind which America tried to conceal the reality of life for black Americans, most of whom lived in the South, out of sight and out of mind for most people in the North.” While their numbers were small relative to the total number of enslaved blacks, their impact was enormous.
The fugitive slave crisis, and it was a crisis for fourscore years, resulted in an America splintered into several groups. There were the Blacks who either were fugitives themselves or who supported those who ran away. There were the slaveowners and large numbers of other Southern whites who saw the fugitives as thieves who stole themselves. There were those whites, mostly in the North, who assisted the fugitives. Then there were those Northern whites who sympathized with the escaped slaves but who believed that the laws compelled them to support the recapture of the escapees in order to preserve the Union.
The 1850 Fugitive Slave Law would sharpen the conflict that it was meant, as a “Compromise,” to calm. Delblanco writes that “the fugitive slave law was a vivid instance of the law of unintended consequences. It turned antebellum America upside down. In the North, after a fugitive was violently arrested in Boston and sent back to his master in Virginia, one New England industrialist, whose textile mills wove slave-grown cotton into cloth, remarked, “We went to bed one night old-fashioned, conservative, Compromise Union Whigs & waked up stark mad Abolitionists.”’ (p. 8)
“Before the fugitive slave law, northerners could pretend that slavery had nothing to do with them,” says Delbanco, “After the fugitive slave law, there was no evading their complicity.”
Professor Delbanco writes that the fugitive slave crisis led to a loss of comity in society. Comity is necessary for social coherence according to the great American historian Richard Hofstadter. Delbanco quotes Hofstadter:
Comity exists in a society to the degree that those enlisted in its contending interests have a basic minimal regard for each other: one party or interest seeks the defeat of an opposing interest on matters of policy, but at the same time seeks to avoid crushing the opposition, denying the legitimacy of its existence or its values, or inflicting upon it extreme and gratuitous humiliations beyond the substance of the gains that are being sought. The basic humanity of the opposition is not forgotten; civility is not abandoned; the sense that a community life must be carried on after the acerbic issues of the moment have been fought over and won is seldom very far
out of mind; an awareness that the opposition will someday be the government is always present. The reality and value of comity can best be appreciated when we contemplate a society in which it is almost completely lacking. (pp. 13-14).
Comity collapsed during the intensification of the fugitive slave crisis in the 1850s as Americans were forced to take sides every time a fugitive arrived in their community followed by slave catchers. Would the law established by a fatal compromise command their loyalties or would they answer humanity’s call and compromise the union with slaveholders?
The American Revolution set off a revolution in the laws of slavery in the North. While slaves were held in many Northern communities before 1775, the war led to a reconsideration of the institution by Patriots. My own small village of Westbury on Long Island voted to abolish slavery in 1776 and thereby became a haven for fugitives from other parts of the Island. When states in the North abolished slavery, they too became havens for the slaves to the South of them.
That this was considered a serious problem was evident in the inclusion of the Fugitive Slave Clause in the Constitution. A new nation would not have included such a clause if the powerful slaveholders of the South did not worry that these journeys to freedom threatened their fortunes as early as the 1780s. It also would not have been included unless they believed that some part of the Northern public had come to oppose the capture of the fugitives.
Here is the language of the Fugitive Slave Clause that Southern delegates to the Constitutional Convention fought for:
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.
The Fugitive Slave Clause is notable for not naming what the fugitive was escaping from. There is no mention of “slavery” in it. In fact, the word “slavery” would not appear in the Constitution until the ratification of the 13th Amendment in 1865. But Southerners knew what they had fought for. Charles Cotesworth Pinckney of South Carolina told his constituents, “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.
While the Fugitive Slave Clause seemed to place the new national government on the side of the slave catcher, it was not self-enabling and it required an act of Congress to be effective. In 1792 Congress passed a bill authorizing slave owners to seek the return of fugitives in federal or state court.
Although the passage of this legislation was a victory for Southern whites, it hardly resolved the problem. Delbanco writes:
What obligations, exactly, were prescribed by the phrase “shall be delivered up”? Delivered by whom? To what authority—local, state, or federal—did a slave owner have recourse if his slaves crossed the border onto free soil? Along with such theoretical and procedural questions, there were practical ones too. The new federal government simply did not have the resources to enforce the law. It had neither clear jurisdiction nor sufficient personnel to impose penalties on those who violated it, and so the interstate pursuit of fugitive slaves remained essentially a private business. But recovering slaves through private effort was easier said than done. Sending an agent on one’s own to pursue a fugitive could be expensive, with no guarantee of success, and counting on citizens in a free state to volunteer for the work of human repossession was too much to expect, or, depending on one’s view of the morality of the matter, too little. (p. 21)
Legal fixes in 1801 and 1817 failed to solve the problem of weak enforcement of the Fugitive Slave Clause. When a fugitve was brought by slave catchers before a Northern judge for return to slavery, or when a slave owner demanded the help of local law enforcement in securing his human property, the judge, lawyer, or cop would often suffer a crisis of conscience. Would that officer of the law or the courts follow the dictates of a law they found abhorrent? If they disobeyed it, did they jeopardize the future of republican govenrment?
The recapture of fugitives was constantly in the faces of Northerners. Charles Dickens wrote that in 1841 during his tour of the United States the daily newspapers of the North were filled with ads from slave owners seeking the capture of African Americans who had escaped from them. Ads in a New York newspaper contained harrowing descriptions of the self-emancipated:
Ran away, a negro woman and two children. A few days before she went off, I burnt her with a hot iron, on the left side of her face. I tried to make the letter “M.”
Fifty dollars reward for the negro Jim Blake. Has a piece cut out of each ear, and the middle finger of the left hand cut off to the second joint.
Ran away, a negro named Arthur. Has a considerable scar across his breast and each arm, made by a knife; loves to talk much of the goodness of God.
Could a religious Northerner have read these descriptions of mutilated humanity written by the mutilators and not have it change his view of slave society in the South.
If the fugitive slave had a major impact on how Northerners thought about slavery, the influence was out of proportion to the number who ran away. Delbanco says that there is no truly accurate count of the numbers of runaways, but by any measure it was but a small percentage of the three to four million enslaved people living in the United States in the 1840s and 1850s.
One estimate is that only about 1,000 fugitives made the trek to the North each year on average. Delbanco thinks that this estimate is probably low in counting the total number of escapees for several reasons. One is that escaped slaves who were quickly recaptured were unlikely to be counted. Another is that some slave owners may have been reluctant to publicize their losses because it would diminish their standing in the white community as men who did not know how to control “their” slaves. Modern estimates are that roughly 50,000 blacks tried to escape from their owners annually. Many of these left only for a short period to try to avoid being sold away from their families or tortured and returned after negotiations with their owners or after capture by slave patrols. The modern estimate of those making it to the North is about 5,000 on average every year. In 1850 some newspapers said that roughly 100,000 fugitive slaves were living in the North. All of these estimates should be taken with a grain of salt, but whether the number of successful escapes was 1,000 or 5,000 per year, it is clear that fewer than 3% of the enslaved were living as fugitives by the time of the Civil War.
Slaves had learned that escape was extremely difficult and that the punishment for the recaptured was likely to include torture and mutilation. The image of the unsuccessful escapee being torn apart by bloodhounds haunted the enslaved.
Escape also meant leaving behind family. Not only would the escapee be deprived of the company of a parent, a spouse, or a child, he or she knew that the left-behind family members might themselves suffer violent retribution.
Slaves breaking free of bondage nearly always lived near the border with the North. It is no coincidence that Harriet Tubman and Frederick Douglass lived in Maryland. An intelligent and fit slave might be able to slip from Maryland to Pennsylvania or Kentucky to Ohio, but almost no one was able to escape from Alabama or Mississippi.
South Carolina Senator Hammond called the fugitive slave problem a “very small business.” If this was true, why were Southern whites willing to rend the country asunder over it?
By the 1840s, fugitives were forming the core of the growing abolition movement in the North. No one was a stronger spokesperson for ending slavery than the man with stripes on his back, or the woman whose child was sold away from her. Nothing confronted the noncommittal Christian with vaguely anti-slavery views with the consequences of his opinions like a slave catcher on his street. The existential decision to join the Underground Railroad or join a mob trying to free an African American being rendered over to slavery meant that one’s opinions had been translated into a form of direct action in opposition to slavery and to the laws of the Federal government.
For white Southerners, Northern resistance to the recapture of slaves on Free territory was a sign of the evil designs Northerners had on the South. When slaves ran away, many Southern whites attributed their act not to resistance to repression but to the machinations of Northerners hoping to ruin the economy of the South.
Fugitives were also an unwelcome reminder to slave owners that some their assumptions about slavery were just plain wrong. Delbanco quotes one plantation mistress as saying that “my own negroes are as happy as I am-happier.” (p. 39) That illusion was hard to maintain when a slave ran away.
And, of course, if the Southern claim that slavery was beneficial for the slave and that runaways were victims of Yankee propaganda, why didn’t those blacks who successfully made it to the North try to return to enslavement voluntarily?
Southern whites blamed the fugitive crisis on everything but the nature of slavery. Delbanco writes that;
In 1851, a prominent Louisiana physician announced his discovery of a disease peculiar to Negroes, to which he gave the name “drapetomania”—a compound word that joined the Greek words for runaway (drapetes) and madness (mania)—a mental disorder that “induces the negro to run away from service.” This condition, he wrote, “is as much a disease of the mind as any other species of mental alienation, and much more curable, as a general rule.” The cure was simple enough: teach all slaves “the great primary truth, that a Negro is a slave by nature.” Every slave owner must continually remind his slaves of their slavishness and help them conform to their own nature by keeping them away from stimulants such as intoxicating liquors or foolish ideas and by limiting their social contact even with other slaves, lest their impressionable minds become infected with childish fantasies of freedom. (p. 40)
By 1850, the fugitive slave issue had become, in the words of John C. Calhoun, “the gravest and most vital of all questions.” A relatively small number of runaways had created a situation that Calhoun thought imperiled the nation.
In response to the pseudo-science and proto-psychologizing being done in the South, Lincoln seemed to sum up the anti-slavery analysis of the fugitive phenomenon. He said that “People of any color seldom run, unless there be something to run from.”
The fugitive slave issue was sharpened by the uncertain status of slaves brought to the North by owners on business or pleasure trips. Did taking a slave from Virginia to Philadelphia make the slave free? Was a slave who ran away while in New York City a freedwoman?
This was not a new problem. George Washington had confronted it when he brought slaves from home to the capital in Philadelphia. The law in Pennsylvania freed any slave who resided in the state for more than six months. Washington would send his slaves out of the state just before they reached the six month mark, and then have them return to start a new six month period.
Delbanco next turns to the case law on fugitive slaves, the personal liberty laws and other efforts to expand and restrict the power to catch slaves in free territory. By the 1850s, Southern slave owners could complain that their property rights in humans was not respected in the North while Northerners groused that their states were now open to the importation of slaves.
I wonder if this deep dive into the law might dissuade some readers from trying out this new book. About a quarter of the book discusses legal doctrine and it gets pretty heavy at times. I have to admit that the book’s narrative slowed as it delved ever deeper into the jurisprudence of human bondage. As a lawyer I appreciated the attention to the laws, but I think it may be over-involved for some readers.
The fugitive slave crisis was irresolvable through law. Delbanco writes that the “problem of whether ‘residence on free soil made a man free, or whether those states were bound to give judicial recognition to the status created by the laws of the slave states’ proved impossible to resolve until the Civil War settled it once and for all.” Rather than settle the issue, the court cases and legislative forays simply kept the pot boiling with ever increasing amounts of fuel as the fight dragged on.
Many New Englanders who had been lukewarm on the issue in the 1830s, were boiling hot by the 1850s as they saw the insistence by slave owners on reclaiming their slaves on the streets of Boston as an affront to the right of a locality to outlaw slavery within its jurisdiction. In what sense was Massachusetts a Free State if a black man on its streets was still a slave subject to recapture?
New England’s Neo-Puritans, Delbanco says, came to see this as a sinful state of matters. Southern whites responded that the judgement against slavery was an example of Puritanical fanaticism and hypocrisy. New England support for the escapee was emblematic of the region’s intolerant arrogance in the eyes of the slaveholding South.
What Southern whites seemed blind to was the immense embarrassment that the reclamation of fugitive slaves imposed on Northerners. It was their local and state institutions, police and courts in particular, that were called into play when a refugee from slavery was clapped into iron for return to the South. These Northerners thought of their society as the emblem of free government that should inspire the world. Yet not only was slavery allowed in some parts of the United States, but every local government, even those without laws recognizing slavery, could be called upon to participate in the maintenance of slavery through the recapture of escapees.
Anti-slavery magistrates in anti-slavery states were required to perform legal services that kept their fellow human beings in bondage. The torn consciences of the Northerners required by the law to contradict the dictates of conscience garnered no sympathy from the slave owners who controlled Southern politics. The anger of Northern voters who opposed the use of their tax money to imprison slaves for deportation to the South was dismissed as mere hypocrisy by white Southerners.
The fugitive slave crisis drove the sections apart as North and South became more and more distinct in attitude on the subject. Delbanco says that “Of all the evidence supporting Emerson’s claim that the American nation was in fact two nations, most compelling was the exodus of slaves from one to the other.” For all of their problems in the North, and they had many, Black people did not seek freedom by heading South.
While we know a great deal about the lives of those few fugitives who made it to the lecture circuit or whose narratives were published, most of the escapees are lost to history. We have some general information who they were:
More than 80 percent of fugitives appear to have been male. His age was somewhere between the late teens and mid-thirties. He was likely to have been sold, sometimes repeatedly. In the case of slaves who were hired out (in Virginia, on the eve of the Civil War, some 10 percent of its 250,000 slaves were hired out), he might have chafed against the requirement that he relinquish most of what he earned. Probably he lived in or near a town or city, knew other slaves who had fled, and might have faced the impending sale of family, friends, or himself. (pp. 107-108}
Delbanco does not assume that the most sensible course in 1850 was for the North to eschew compromise on the Fugitive Slave Act. It is not clear to him that if disunion came a decade before 1861 that the Northern public would have met secession with military resolve. An independent Confederacy, unharmed by war, might also have been a decidedly expansionist Slave Holders’ Empire, able to make war on Mexico and annex islands in the Caribbean. Delbanco writes that “Only by imagining what might have happened if compromise had failed can we begin to understand those, like Webster, who acted in the present based on their best guess of what would happen in the future.” (p. 251)
Many Northerners viewed Senator Daniel Webster as a disgrace after he spoke in favor of compromise and against the conscience of his section. William Seward’s wife, raised an anti-slavery Quaker, said that the word compromise made her nauseous when it was applied to fugitive slaves. But, for many in the North, it was seeing blacks arrested in their towns and cities that led them to oppose slavery and made them willing to risk death in a civil war to restrict the power of slave owners.
The first capture of a black person occurred just eight days after the 1850 Fugitive Slave Act went into effect. James Hamlet was picked up in a workplace raid in Brooklyn where he had been living without incident for two years. When Hamlet was taken into court he tried to contest his legalized kidnapping by saying that his mother was a free woman. However, the law blocked fugitives from testifying. He was shipped to a slave prison in Maryland. Before he was sold south, his church, the AME Zion Church of Brooklyn, raised money to free him through purchase. A large crowd celebrated his arrival back in New York. AME Zion is still a major congregation in Brooklyn.
Blacks in the city celebrated Hamlet’s return, and took a lesson in fear from his capture. Harriet Jacobs wrote that “every colored person kept their eyes wide open, [and] examined the newspapers . . . to see what Southerners had put up at the hotels.” (p. 265).
The advent of the Fugitive Slave Law led many African Americans and abolitionists to reconsider their traditionally pacifist views on opposition to opposition to slavery. If a black was approached by a slave catcher, should he or she go meekly or treat the capturer as a kidnapper. Some began to preach that it was morally permissible to kill or injure a slave catcher to avoid enslavement.
After all of the struggle to pass the Fugitive Slave Act, you might wonder how effective the new law was. It certainly was effective in producing strife and hatred, as well as fear in Black communities. The year in which the most Blacks fell into the hands of slave catchers was 1851. That year 67 African Americans living in the North were captured. 59 of those men and women were sent back to slavery. Three were released and five were rescued by anti-slavery activists. And that was the best year for slave catchers.
Meanwhile, lukewarm abolitionists became militants, pledged to sacrifice their lives to stop the recapture of fugitives on Northern soil. The law captured few slaves but created thousands of anti-slavery militants.
The ineffectiveness of the new law strengthened the arguments of the Firebrands in the South who argued that the United States had become two countries and needed to break in half.
Emerson called the Fugitive Slave law “a university to the people” in the wrongs of slavery. If the slave owners could force Northern public officials to violate their own consciences in enforcing the law, then their power over the North was immense. When some elected officials resigned rather than enforce the hateful law, Northern voters felt deprived of the services of good men because of the demands of slave owners. When Tom Kane resigned his public office rather than enforce the Fugitive Slave Act, his own father, who opposed slavery but believed in the law, sentenced his son to a year in jail. (p. 294)
Oblivious to the pain the act caused to black fugitives and white magistrates, Southern whites were incessantly critical of the Free States for refusing to assist with enslavement. Delbanco writes:
After the Civil War, Alexander Stephens, who had served as vice president of the Confederacy, wrote in his journal to much the same effect: “slavery was without doubt the occasion of secession,” and “out of it arose the breach of compact, for instance, on the part of several Northern States in refusing to comply with Constitutional obligations as to rendition of fugitives from service, a course betraying total disregard for all constitutional barriers and guarantees.” For both sides in the conflict, the fugitive slave clause of the Constitution and the notorious law by which the compromisers of 1850 had tried to enforce it only proved the futility of trying to meet the other side halfway. The final breakdown of comity—of a society in which “contending interests have a basic minimal regard for each other”—was at hand. (p. 348).
Conclusion:
This was a book that explored aspects of the decades leading up to the Civil War that I was not familiar with. The legal history was particularly new to me. While I found that fascinating, I am sure that others may not be as entranced with legal and legislative history.
A shortcoming of the book is the lack of a sustained focus on the fugitives themselves. I understand the severe limitations in sources for what the escaped slaves said and did, but the absences was felt nonetheless.
I think that this is an important book for looking at the ways that the actions of virtually unknown people, in this case fugitive slaves, can create circumstances that lead to historic changes. Delbanco writes:
THERE IS AN APHORISM attributed to Mark Twain (though no evidence exists that he ever said it) that while history does not repeat itself, it does rhyme. The fugitive slave story is a rhyming story. It is impossible to follow it without hearing echoes in our own time. It is about the breakup of the two major political parties in antebellum America. It is about the rise of what might be called the first Black Lives Matter movement, as black people in the North protested the outrage of slavery and stormed the jails where runaway slaves were held. It is about the establishment of “sanctuary cities” where fugitives—the undocumented immigrants of their time—sought safe haven. It is about the transfer of the states’ rights principle from the right to the left as a means of defense against a predatory central government. It is about a political realignment that culminated in the election of a president with a minority of the popular vote. It takes place at a time when insult and invective became the currency of public discourse. And most of all, it reminds us at every turn of how enduring the devastating effects of America’s original accommodation with slavery were—and are—on the lives of black Americans. (p. 13)
I think that this book provides insights into the 1850s and the modern era that are both a warning and a promise.
