Déjà vu—ICE Reactance Echoes Fugitive Slave Law Divisions

U.S. Marshall and a slave catcher attempt to capture a Black woman and child under the Fugitive Slave Act.

The infamous Fugitive Slave Act was passed by Congress on September 18, 1850.  It was one part of a larger Compromise of 1850 meant to ease tensions between slave and free states.  It did not work.  In fact attempts at enforcement of the law enraged many northerners who would otherwise have been content to let slavery be out of sight and mind in the South.

A Fugitive Slave Law had been in the Federal statutes since 1793.  It was an enforcement provision for Article 4, Section 2 of the Constitution, which required the return of runaway slaves and was passed at a time when slavery was still legal in most states on both sides of the Mason-Dixon Line.  But one by one northern states had abandoned slavery.  Within the next decade the last slaves in some gradual emancipation plans would be freed.  Many northern states had fairly sizable populations of Free Blacks.  Southern states, however, with the introduction of a wide spread cotton economy were more dependent on slavery than ever and the end of the international slave trade had cut off a supply of fresh bodies from Africa and the Caribbean. 

Slavery was not only disappearing in the North, public opinion was swinging against it, particularly in New England and those states carved from the old Northwest Territories that were heavily settled by the New England diaspora.  Many states had taken actions to blunt the enforcement of the 1793 law.  Several had enacted Personal Liberty Laws by which a captured Negro could demand a jury trial where the claimant would have to prove that he or she was legal owner.  This was to prevent free Blacks in the North from being kidnapped and taken south to be sold into slavery—a common practice among slave chasers.  Other laws forbad state and local officials from rendering assistance to slave chasers or the use of local jails to hold them.  This practice was upheld by an 1842 Supreme Court decision, Prigg v. Pennsylvania, which essentially gutted enforcement of the 1793 law in much of the North.

Beyond legal barriers, there was growing popular resistance to slavery which manifested itself in the network of the Underground Railroad which actively assisted fleeing slaves to reach either Canada or settle in relatively safe portions of the North under assumed identities.  In several cities citizens actively interfered with slave catchers.  All of this, of course, infuriated the South.

The Underground Railroad abetting and harboring escaped slaves on their flight to freedom was a manifestation of growing opposition to slavery and slave catchers in the north.

Other issues were also inflaming North/South tensions, principally whether slavery would be extended in the vast territories obtained in the Mexican War.  The South wanted all of the land opened to slavery—or failing that something like an extension of the Missouri Compromise line that would allow territories to the south of the same or similar line eventually be admitted to the Union as slave states.  They even hoped to possibly divide Texas into two or more states and break off southern California somewhere north of Los Angeles.  That would give the South and slave holding border states control of the Senate, and by extension the Federal government itself.  

Northerners, on the other hand, wanted to exclude slavery from all newly organized territories and keep Texas and California unified, with the understanding that California would enter the Union as a free state, balancing slave holding Texas.

Kentucky Whig Henry Clay tried to engineer another great compromise but this time failed.

President Zachary Taylor, a hero of the Mexican War and himself a Louisiana planter and slave holder, stood with the North in opposing the extension of slavery.  His Whig Party was unraveling over the issue.  Senator Henry Clay of Kentucky, a borderer state Whig who had long dreamed of the Presidency, set out to craft a compromise early in the year.  But with the president of his own party in opposition, the compromise fell apart in the Senate.

When the new session of Congress convened in March Democrat Stephen Douglas of Illinois and Massachusetts Whig Daniel Webster—Clay’s long-time rival for party leadership—advanced a modified version of Clay’s compromise proposals.  It varied from Clay’s failed version mostly in the disposal of the thorny issue of Texas.  The new version was mostly crafted by Douglas and incorporated the Democratic platform principle of Popular Sovereignty—that residents of Territories should be able to decide by voting whether or not slavery would be allowed—for the two proposed Territories carved from Texas claims—Utah and New Mexico.  Mormon controlled Utah would definitely opt to be a free territory, and everyone knew that it was unlikely that sparsely populated New Mexico, which was totally unsuitable to a plantation economy, would elect to allow slavery.  California would be admitted to the Union undivided as a free state.

New Englanders turned on their long-time political hero Daniel Webster for agreeing to include a tough Fugitive Slave Law in a new compromise to "save the Union."

Debate was fierce.  Most northern Whigs led by William Steward of New York were bitterly opposed because the package did not include Wilmot Proviso, a long sought provision that would have permanently banned slavery from territory acquired as a result of the Mexican War.  Even though no new slave Territories or States were created, the application of the principle of Popular Sovereignty left the possibility open in the future.  They were also outraged by the inclusion of the Fugitive Slave Act.

On the other hand Southern firebrands led by John C. Calhoun were just as voraciously opposed because they did not get the division of California or any new slave holding Territories.  They also had to give up the continuation of the slave trade in the District of Columbia, although slavery itself would be preserved there.

South Carolina's John C. Calhoun led the firebrands in opposition to the compromise because it didn't guarantee the extension of slavery.

Numerous alternative plans were advanced and beaten back.  Douglas and Webster, with the support of Clay, had to stitch together a Senate majority from northern Democrats, moderate southern Democrats, and southern Whigs.  The opposition was split between to extremes, northern Whigs on one hand, and southern firebrands on the other.

The compromise got a boost when Taylor died suddenly and his Vice President Millard Fillmore ascended to the White House.  Fillmore was one of Webster’s few Northern Whig allies and supported the compromise.  Douglas split the original omnibus bill into five separate bills from an, and carefully crafted narrow majorities for each, with each bill getting support from a slightly different combination of forces.  It was precarious, but it worked.

Rising Democratic star and leading proponent of Popular Sovereignty Stephen A. Douglas devised the plan to split the compromise into separate parts and build different majorities in support of each.

The bills, passed independently between September 9 and 20 and quickly signed into law by President Fillmore included:

• The admission of California as a free state.
• The abolition of the slave trade in the District of Columbia.
• The organization Territory of New Mexico (including present-day Arizona) and the Territory of Utah under the rule of popular sovereignty.
• The enactment of Fugitive Slave Act requiring all U.S. citizens to assist in the return of runaway slaves.
• Texas ceding of much of its western land claims in exchange for of $10 million to pay off its national debt.

Douglas and Webster thought they had crafted a compromise which saved the union.  Instead, they reaped the whirlwind, especially because of the onerous provisions of the Fugitive Slave Act.

The Act made any Federal Marshal or other official who did not arrest an alleged runaway slave liable to a fine of $1,000. Local law enforcement was required to arrest anyone suspected of being a runaway slave on no more evidence than a claimant’s sworn testimony of ownership. The suspected slave could not ask for a jury trial or testify on his or her own behalf. Anyone aiding a runaway slave by providing food or shelter was subject to a six month imprisonment and a $1,000 fine. Officers who captured a fugitive slave were entitled to a bonus or promotion for their work. Slave owners only needed to supply an affidavit to a Federal Marshal to capture an escaped slave and since a suspected slave was not eligible for a trial to prove his status, many free blacks could be conscripted into slavery. 

Outrage in the North, particularly in New England was fierce.  Daniel Webster, the political hero of the region for more than 40 years, was excoriated as a traitor.  The hand of Abolitionists, a previously despised minority, was greatly strengthened.  Some Abolitionists even contemplated northern secession from the union in response to the Act and the still open possibility of the extension of slavery into new territories.  Even Ralph Waldo Emerson flirted with the idea. 

Abolitionists sometimes published warnings interfering with slave chasers, a source of outrage in the South.

Citizens of Boston and other towns organized to oppose slave catchers and interfere with their work in every way possible.  Handbills were circulated warning free Blacks that the local police were cooperating with slave catchers under the law.

Politically, the enactment of the Fugitive Slave Law spelled the end of the Whigs as a national party.  Northern Whigs swung to the new Free Soil Party and four years later into the new Republican Party alongside anti-slavery northern Democrats.  Southern Whigs were re-absorbed into the Democratic Party from which most of them had originated.  Democrats were riven by sectional conflicts themselves.

Whatever “peace” might have been bought fell apart four years later as the future of Kansas turned on the principle of Popular Sovereignty leading to a local civil war as slave holders and Free Soilers rushed to the territory to attempt to control the Territorial Government.

Anti-ICE protestors echo the outrage against the Fugitive Slave Law.

From a modern perspective, it is useful to compare the provisions of the Fugitive Slave Act to and the current bitter divisions over local and state cooperation with ICE raids, enforcement, and detention.  There are many parallels including the refusal of many cities and states to allow their law enforcement agencies to cooperate with ICE raids and sweeps.   Meanwhile those who have assisted immigrants and asylum seekers crossing the dangerous Southwest deserts have been arrested and prosecuted for felonies.  Churches offer sanctuary to endangered immigrants, an echo of the defiant Underground Railroad.  Some armed “volunteers” have taken up patrolling the borders.

Donald Trump has made the deportation of millions of undocumented immigrants and the erection of an impenetrable boarder wall the center piece of his Presidency.  Meanwhile many Americans have been revolted and repelled by the ugly rhetoric.  Regional and philosophic divisions are sharper than ever.  His de facto allies among White Nationalist and supremacists and neo-Nazis are now publicly encouraging violence against opponents and hare even threatened assassination and rebellion should they lose.

The more things change, the more they stay the same.