The Civil War, also referred to as the War Between the States or in some sections of the country as the War of Northern Aggression, is considered by some as one of the pivotal moments in American history. For most historians, the war was the culmination of the unresolved and irreconcilable debate over slavery while others still contend that the primary issue that triggered the war was state’s rights. Instrumental in the lead-up to the conflict were the two Fugitive Slave Acts and the responses by both sides that have repercussions in today’s debates over immigration.
The reasons for the Civil War are still debated. Some people may recall that the debate over the Civil War was recently resurrected to some extent by retired General John Kelly, now President Trump’s Chief of Staff. While praising Confederate General Robert E. Lee, Kelly stated that loyalty to one’s state at that time was more important than to one’s country and that there were honorable people on both sides. He also stated that the failure to compromise on the issue of slavery led to the conflict1. Kelly’s opinions on the Civil War are not new and most historians commented that they are inaccurate and simplistic views that have long been debunked.
When our country was founded, a compromise was reached between the Southern slave states and the Northern free states over the abolition of the slave trade, but not necessarily over the issue of slavery itself. In fact, the word “slavery” is not even mentioned in the Constitution that was drafted in 1787.
At that time in our history, slaves constituted about 1/5 of the total population but comprised 40% of the Southern colonies. The slave economy enriched many Southern landowners and the region as a whole so agreeing to abolish slavery was a non-starter for the South.
As a conciliation to bring the Southern states into the union, it was agreed that slavery would not be outlawed but that the slave trade would be abolished in 1808. Abolitionists felt that slavery or this “peculiar institution,” a phrase that was popular in the first half of the 19th Century and which meant that slavery was distinct to the Southern states, would eventually diminish and die out. Southerners were comfortable with the compromise since they believed that breeding among the slaves already on their plantations would produce an abundant supply without the need for importing fresh bodies.
But the compromise went further by adding a provision to the Constitution that allowed the slave states to count a slave as three-fifths of a person for purposes of representation in the House of Representatives and the electoral college2. This led to formation of the two houses of Congress: the House of Representatives that was based on population, and the Senate that was comprised of 2 representatives from each state so that the smaller states could have an equal voice. But since the Northern states had larger populations, the South was still concerned about its loss of overall power and influence and wanted its slave population counted towards representation in the House of Representatives and the electoral college. The North opposed this but eventually relented by agreeing to the 3/5 clause, thus granting the South disproportionate power to its free white population. The clause was instrumental in the election of Thomas Jefferson who came from the slaveholding state of Virginia3.
The Fugitive Slave Clause to the Constitution
By the time delegates were meeting in Philadelphia in 1787, there were 5 states that had outlawed slavery: New Hampshire, Vermont, Massachusetts, Rhode Island and Connecticut, although slaveholders in those states were permitted to hold on to their slaves for a time. In the census of 1790, Vermont, Massachusetts and Maine were the only states with no slaves counted among its population4.
Because the Southern states feared that the Northern states would harbor escaped or fugitive slaves, their representatives were able to add a Fugitive Slave Clause to the U.S. Constitution 5. This provision stated that “no person held to service or labor” could become a freeman if they escaped to a free state. Students of this time might view Northern delegates to the Constitutional Convention as complicit in preserving slavery as secondary to the greater interest in forming the entity that became the United States of America? It certainly could be argued that the slaveholding states were in effect holding the Constitution hostage to their demands.
This provision was not popular among the Northern delegates but who nevertheless felt that a strong and united union was paramount over the slavery issue and hoped that time would eventually see the slavery issue resolve on its own. Obviously, this does not happen as the Southern economy became even more reliant on slave labor in the coming decades.
Fugitive Slave Act of 1793
The constitutional provision designed to placate powerful Southern slaveholders by inhibiting slaves from escaping and crossing into free states and gaining at least de facto freedom in many cases apparently did not go far enough. In 1793, the first Fugitive Slave Act under the new government was passed. This act was essentially one of forced extradition since it allowed the slaveholder or agent to find and arrest fugitives and compelled the state to which a slave had escaped to return that individual to its owner. Any person who harbored or aided a fugitive faced a fine of $500, not an inconsequential sum in those days. Once arrested, the slave had to be brought before a judge or magistrate of that state and prove ownership of the alleged slave.
The free states, however, took steps to circumvent the law by passing “personal liberty” laws allowing the escaped slaves due process in its courts and granting them a jury trial. Some of the states required corroborative proof of slave ownership, adding an extra layer to the process. Over the following decades, enforcement of the Slave Act was sparse and minimal, which enraged the Southern states.
Many of the Northern states also passed legislation that forbid its own state officials from assisting in the capture of fugitives or to incarcerate them in state jails. We can see parallels in some measure in the current sanctuary city laws in California as well as in other states that prohibit local or state officials from assisting federal authorities in agencies like ICE (Immigration and Customs Enforcement) in the roundup of undocumented aliens. Indeed, cities and states with such laws may have received a history lesson from these antebellum measures that resisted federal laws that were viewed as unjust and unconstitutional.
The Fugitive Slave Act of 1793 also prompted the formation of the Underground Railroad, a network or system of secret routes and individuals who aided escaped slaves to freedom in free states and Canada. It is estimated that thousands of escaped slaves benefited from this network between 1800 and 1860, although the routes were primarily run by Northern African-Americans with the assistance of some white abolitionists since many were still reluctant to defy federal law6
Pennsylvania v. Prigg
The South’s dissatisfaction with the North’s noncompliance with the Fugitive Slave Act culminated in a 1842 ruling from U.S. Supreme Court. This decision determined that the personal liberty laws that gave fugitives the right to a jury trial in the free states to which they had escaped were unconstitutional since they were designed to circumvent the Fugitive Slave Clause embodied within the Constitution7.
Prigg concerned two Pennsylvania state laws that prohibited the removal of fugitive slaves by a slave owner by violence or force from the state for the purpose of re-enslaving them. The case centered around a black female slave who had moved with her owner to Pennsylvania in 1832. Eventually, the owner granted the slave all but total emancipation. After the slave owner’s death, however, the owner’s heirs wanted her returned to Maryland and sent an agent named Prigg to arrest her. By law, the agent had to bring the fugitive before a state magistrate and obtain certificates for removal, which the judge refused to issue. Despite the refusal, Prigg returned the fugitive to Maryland and Pennsylvania authorities convicted Prigg of kidnapping.
After losing his appeal before the Pennsylvania supreme court, Prigg argued before the U.S. Supreme Court that the state laws were an unconstitutional restriction on the guarantee of extradition found in Article 4, Section 2 of the U.S. Constitution and the Fugitive Slave Act of 1793. The court agreed primarily on the basis that federal law superseded state law on this issue, especially since it involved property rights. But Justice Story, who delivered the opinion, added the caveat that any laws passed by Southern states to recapture fugitives in the free states were to be enforced only by federal officials and could, in essence, be ignored by state officials or magistrates in the free states.
The Prigg ruling was confirmed by later court decisions in 1847 and 1859 that recognized the legitimacy of the Fugitive Slave Act as well as the property rights of slave owners8. Southern slaveholders, however, were not satisfied with the ruling and continued to press for stricter laws on the rendition of escaped slaves.
Fugitive Slave Act of 1850
Because the prior fugitive slave act was largely ineffective and frustrating to Southern slaveholders who were threatening with calls for secession from the Union, Congress passed the Fugitive Slave Act of 1850 (“Act”) as part of the Compromise of 1850 initiated by Senator Henry Clay of Kentucky. The compromise included abolishing the slave trade in D.C. and allowing the territories acquired from Mexico the right of self-determination to be slave holding or free.
This new legislation also compelled citizens to aid in the capture of escaped slaves and increased the penalties for harboring and interfering with the rendition process with a jail sentence of up to 6-months and a fine of $1000. Violators were also to pay $1000 to the claimant, or slaveholder, for each fugitive lost as a result of the violator’s actions. Newly created federal officials, or commissioners, were given the power to hear and decide individual cases of fugitive claims and to issue certificates of removal. Testimony from fugitive slaves was prohibited and commissioners could rely solely on the claimant’s affidavit certified from a court in the state from which the fugitive escaped as satisfactory evidence of escape, identity of the slave, and the agent’s authority to capture and remand the fugitive. Lack of an affidavit was not a bar to a claim. According to later historians, the Act was viewed as the most powerful exercise of federal authority in the country before the Civil War9.
Although the incidence of slaves who actually escaped to the north was estimated to be around 100,000 between 1800 and 1860, a relatively small number out of a slave population of 3.2 million, the Act had significant symbolic value. Regardless of the actual number, Southerners were concerned that more slaves were escaping and that abolitionist fervor was increasing. Most escapes were from the border states like Maryland and Delaware so that the price of replacing able-bodied slaves there became economically unfeasible. As a result, slavery was becoming less important in these states, a matter of much concern to Southerners who saw their power and influence over national policy diminishing.
Reaction to the passage of the Fugitive Slave Act of 1850 was even more pronounced than that over its predecessor. States refused to enforce its measures and it is estimated that no more than 330 escaped slaves were remanded over the years leading to the outbreak of the Civil War 10 years later10.
These acts of civil disobedience were practiced by individuals as well as the states in what would later be used by the Southern states as a justification for secession.
The Looming Civil War
Passage of the Act seemed to radicalize large segments of the Northern population. In Troy, Syracuse and Boston, crowds overpowered courthouses where fugitives were jailed and led them off to Canada.
In 1855, Wisconsin went so far as to declare the Fugitive Slave Act unconstitutional. Although Abelman v. Booth, supra, directly overturned the Wisconsin court’s nullification ruling, the state supreme court refused to file the mandate upholding the Fugitive Slave Act.
Other Northern states that had attempted to nullify the 1793 Fugitive Slave Act continued with its efforts to ignore and openly defy its reiteration in 1850. Examples included Vermont that passed a Habeas Corpus Act in 1851 that directly contradicted the Act by requiring hearings for fugitive slaves and a jury trial before extradition and barred state officials from cooperating with federal officials or complying with the Act in any capacity11 Passage of the Vermont law reportedly sent President Millard Fillmore into a rage who threatened military action to enforce the law. Prescient comments from observers of that day lamented that this conduct by the states would one day lead to dissolution of the Union.
In Massachusetts, prosecutors were unable to obtain any convictions for violating the Act due to jury nullification. Other states passed laws that exempted state officials from liability for aiding escaped slaves using the caveat in Prigg that allowed states to forbid state officials from enforcing the Fugitive Slave Acts or use state jails to incarcerate them12.
Not surprisingly, Southerners were outraged by the defiance, pointing out that Northern states were not only encouraging and assisting hundreds if not thousands of slaves to escape, but were also inciting to resurrection those who remained, though the only significant slave-related insurrection on American soil involved John Brown who tried to instigate a slave revolt in 1859 by storming and taking over Harper’ Ferry, a federal arsenal in Virginia.
In any event, Southerners saw the writing on the wall. Unable to rely on the federal model when it suited their needs, the South felt it had little choice but to once again assert states’ rights on its own behalf. Previously in 1828, Vice-President John C. Calhoun had declared that states could nullify the recently passed Tariff Act that raised taxes on imported goods and which inured to the benefit of Northern industries to the South’s detriment. His theory was based on the concept that federal authority derived from the consent of the states so that any state could nullify any federal law if they considered it unconstitutional13 Likewise, the North adopted states’ rights and the theory of nullification when it suited its interests but abandoned it when the Southern states began seceding.
The Northern states’ defiance of federal supremacy in passing personal liberty laws and other conduct in refusing to enforce the Fugitive Slave Acts was cited by the Southern states as a justification for its secession from the Union. For some historians, this confirmed the assertion that the Civil War was not fought over slavery but over state sovereignty and President Lincoln’s desire to keep the Union intact14.
For most historians and students of the Civil War, though, there is plenty of evidence from the seceding states in its various proclamations of secession that firmly establishes that their position was firmly identified with slavery:
“Our position is thoroughly identified with the institution of slavery–the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce to the earth.These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin”15.
Texas was openly blatant in its defense of secession by including the theory of white supremacy:”We hold as undeniable truths that the government of the various States, and of the confederacy itself, were established by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior race, and in that condition only could their existence be rendered beneficial or tolerable”16.
Congress repealed both of the Fugitive Slave Acts on June 28, 1864.
Passage of the Fugitive Slave Acts managed to placate the South for 68 years from at least 1793 when the first Fugitive Slave Act was passed but its relationship and connection to the North was always tenuous. Historians may differ on what actions, if any, could have prevented the Civil War but the Fugitive Slave Acts certainly exacerbated the tensions over the irreconcilable issue of slavery and exposed the conflicts between federal authority and states’ rights.
- Maggie Astor, John Kelly Pins Civil War on ‘Lack of Ability to Compromise’: New York Times, October 31, 2017 https://www.nytimes.com/2017/10/31/us/john-kelly-civil-war.html
- Article 1, Section 2, modified by 14th Amendment, Section 2
- Finkelman, Paul, The Union Wasn’t Worth the Three-Fifths Compromise on Slavery: New York Times, February 27, 2013., https://www.nytimes.com/roomfordebate/2013/02/26/the-constitutions-immoral-compromise/the-union-wasnt-worth-the-three-fifths-compromise-on-slavery
- Litwack, Leon F, North of Slavery: The Negro in the Free States, 1790-1860. Chicago: The University of Chicago Press, 1961
- Article IV, Section 2, Clause 3
- Henry Louis Gates, Jr.,: Who Really Ran the Underground Railroad? The Root, PBS.org., http://www.pbs.org/wnet/african-americans-many-rivers-to-cross/history/who-really-ran-the-underground-railroad/
- Pennsylvania v. Prigg (1842) 41 U.S. 539
- Jones v. Van Zandt (1847) 46 U.S. 5; Ableman v. Booth (1859) 62 U.S. 506
- Eric Foner: What the Fugitive Slave Act Teaches Us About How States Can Resist Oppressive Federal Power; The Nation, February 8, 2017., https://www.thenation.com/article/what-the-fugitive-slave-act-teaches/
- Pinsker, Matthew, Fugitive Slave Acts, History.com. 2009., http://www.history.com/topics/black-history/fugitive-slave-acts
- The Vermont Independent: The Nullification Precedent: How Vermont Can Block Overreaching Federal Power. December 27, 2016., http://www.vermontindependent.org/the-nullification-precedent-how-vermont-can-block-overreaching-federal-power-history/
- Thomas R. Eddlem: Abelman v. Booth: How State Nullification Can Defy Tyrannical Government; New American, May 10, 2013., https://www.thenewamerican.com/culture/history/item/15355-ableman-v-booth-how-state-nullification-can-defy-tyrannical-government
- Historical Highlights: The Tariff of Abominations:The Effects. US House of Representatives, History;Art & Archives, April 22, 1828
- Paul Craig Roberts: How Do We Know the So-Called Civil War Was Not Over Slavery; Institute for Political Economy, August 23, 2017
- Confederate States of America–Mississippi Secession; A Declaration of the Immediate Causes Which Induce and Justify the Secession of the State of Mississippi from the Federal Union
- Declaration of Causes: February 2, 1861-A Declaration of the Causes Which Impel the State of Texas to Secede from the Federal Union