Were antebellum "Personal Liberty" and "Free Soil" laws in Northern states technically unconstitutional?

by waroverslavery

I've read many answers on this sub about the (il)legality of secession, the fallacy of claiming the south sought to defend "states rights" and so on, and have learned much from them. But there's a part of the narrative of sectional crisis about which I'm a little confused.

The 1850 Fugitive Slave Act, as I understand it, contributed heavily to the sectional crisis because it neutralized "personal liberty" or "free soil" laws that Northern states had implemented since the Revolution, where enslaved people who successfully escaped and reached Northern states could achieve free status.

What I'm confused about is how those laws were suffered to exist in the first place, given Article IV, Section 2, Clause 3 of the United States Constitution, which reads:

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 labor, but shall be delivered up on claim of the party to whom such service or labour may be due

I am not a historian and I'm certainly no Constitutional scholar, and I'm certainly no neo-confederate goofball who tosses around all sorts of incoherent accusations at the Yankees, and I'm struggling to understand how the Fugitive Slave Act (apart from its provision requiring citizens to aid and abbett slavers in their pursuits) was anything more than a restatement of this provision of the Constitution. How were personal liberty and free soil laws able to seemingly contradict this clause before 1850?

Thank you for any answers!

secessionisillegal

(1 / 2)

The Personal Liberty Laws were definitely unconstitutional whenever they directly butted up against the Constitution's Fugitive Slave Clause. However, lawyers are lawyers and found some unique constitutional ways to chip away at enforcement of the Fugitive Slave Act of 1793, and at the Fugitive Slave Act of 1850. Thomas D. Morris writes in Free Men All: The Personal Liberty Laws of the North, 1780-1861 that, while some Personal Liberty Laws "doubtless were of arguable constitutionality", most were written in such a way so that "even the most extreme [laws were] defensible on constitutional grounds". As Stanley W. Campbell writes in The Slave-Catchers: Enforcement of the Fugitive Slave Law, 1850-1860:

"The provisions of the statutes to safeguard personal liberty can be classified under eight headings:

(1) laws barring state officers from enforcing the Fugitive Slave Law;

(2) laws prohibiting the use of state jails to house fugitive slaves;

(3) laws preventing kidnapping free Negroes and removing fugitive slaves from the states without due process of law;

(4) laws extending the writ of habeas corpus to fugitive slaves;

(5) laws extending trial by jury to fugitive slave cases;

(6) laws requiring certain state officers to defend fugitive slaves;

(7) laws excluding federal officers enforcing the Fugitive Slave Law from prosecution under the personal liberty laws;

and (8) miscellaneous provisions."

Campbell writes that "few provisions in those statutes...contradicted the Constitution or the Fugitive Slave Law" although Campbell's (3), (4), and (5) would be rendered unconstitutional at the federal level with the Dred Scott v. Sandford decision in 1857.

Going back a bit, the earliest Personal Liberty Laws were essentially anti-kidnapping laws. No free person in the state could be taken into custody by a slave-catcher or by the state if the purpose was to remove them from the state to enslave them.

The Supreme Court struck down these types of laws in the unanimous 1843 decision Prigg v. Pennsylvania. However, the decision left a big gaping hole for the Northern states to exploit. The decision also said that it wouldn't necessarily be unconstitutional for a state to pass laws forbidding their state judges from issuing arrest warrants or other legal writs, such as "certificates of removal" from the state, that would aid in the enforcement of the Fugitive Slave Act of 1793:

"...whether state magistrates are bound to act under [their authority to issue writs, warrants, and certificates to enable the capture of runaway slaves]; none is entertained by this Court that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation."

Under that original 1793 Fugitive Slave Act, the enforcement of the federal law was at the state and county level. A slaveholder/slave catcher had to bring the case to the county courthouse where the person they were attempting to enslave was living. Thus, if a state passed a law forbidding county and state judges from issuing "certificates of removal" and such, this was an effective end-around to the enforcement of the act.

This is why a new Fugitive Slave Act at the federal level was lobbied for, and eventually passed in Congress. This 1850 law put the issue firmly in federal court, not state courts. And this prompted a new round of Personal Liberty Laws to be written, with a different set of non-cooperationist provisions, as Campbell lists above. For instance, the Massachusetts law forbade any state officer in aiding with the arrest of people accused of being "fugitive slaves". Nor could state property, such as local and county jails, be used in incarceration of such people. The Massachusetts law also required the suspension of the law license of any Massachusetts lawyer in the state who would act as counsel to a slave-catcher, and would not recognize the credentials of any out-of-state lawyers who came into the state to work any case on behalf of a slave-catcher.

Among other ways, this complicated efforts at enforcement because there wasn't a federal jail or other federal building available in every town to be used to incarcerate an accused person. Since the local jail couldn't be used, the slave-catcher might need to transport the accused person halfway across the state to the nearest federal facility. This could often give an abolitionist mob time to rescue a person through mob justice.

Regardless, the state of Wisconsin did bring a case to challenge the constitutionality of the Fugitive Slave Act of 1850. Though "bring" isn't the right word. In 1854, a mob led by abolitionist newspaper publisher Sherman Booth had freed Joshua Glover from the custody of federal law enforcement, which led to Booth's arrest for violating the Fugitive Slave Act. Through a series of cases filed in state court, Booth's arrest was deemed invalid. The Wisconsin Supreme Court upheld this decision, and took the drastic step of "nullifying" the Fugitive Slave Act, deciding it was unconstitutional under the U.S. Constitution. Not only that, but they refused to submit the court case to the U.S. Supreme Court for further review, delaying the Supreme Court from hearing the case for several years.

A separate case was then brought into federal court, which took until 1859 to reach the U.S. Supreme Court. The unanimous decision in Ableman v. Booth overturned the Wisconsin court decision, saying that all provisions in the Fugitive Slave Act were constitutional. The feds actually didn't pass a prison sentence against Booth, but levied him with several applicable fines for breaking the Fugitive Slave Law. He refused to pay them, so he was re-incarcerated, this time in a federal facility.

Still, this was only one Personal Liberty Law that was struck down in one state, and each of the states had worded theirs a bit differently, with different provisions, so that it was possible to still delay enforcement of the Fugitive Slave Act in those states until the Supreme Court made separate rulings against those others.

But the big accomplishment of the Personal Liberty Laws is that they swayed public opinion in the North. The organization and power of the Republican Party in Wisconsin, for instance, was very much helped by the Booth decision. The federal government had to resort to rather heavy-handed measures at the time in order to bypass the non-cooperationist Personal Liberty Laws.

The most high-profile case was the Anthony Burns case in Boston in 1854, where President Franklin Pierce sent U.S. Army military officers into the city in order to resist any attempt to free Burns. Burns was marched out of Boston under federal military guard and into slavery in front of streets lined with thousands of people dressed in black and hanging American flags upside down. Amos A. Lawrence became an abolition activist after witnessing the event, writing: "[W]e went to bed one night old fashioned, conservative, Compromise Union Whigs & waked up stark mad Abolitionists." George S. Hilliard, who had been a Conservative Whig until then, wrote: "When it was all over, and I was left alone in my office, I put my face in my hands and wept. I could do nothing less." Henry David Thoreau wrote Slavery in Massachusetts as a protest against the Anthony Burns case, accusing Massachusetts of having become a slave state.

The event was instrumental in the collapse of Pierce's and the Democratic Party's support in the North (though his signing of the Kansas-Nebraska Act was certainly more important). That fall, the Democrats lost a whopping 75 of 153 seats they held in the U.S. House, costing them their majority. The Know-Nothings and the state parties that coalesced into the Republican Party two years later went from holding no seats to holding 93 seats, enabling them to form a coalition majority with the (collapsing) Whigs in opposition.

Headline-grabbing cases continued to be trumpeted in the Northern press regularly, whenever the federal law usurped Northern states' Personal Liberty Laws with dramatic effects. The Dred Scott case might be best remembered today, because of the associated Supreme Court ruling. In Wisconsin, Sherman Booth became a celebrated political prisoner once incarcerated by the U.S. federal government. President James Buchanan ended up paying Booth's fines, though not technically commuting his sentence or offering a pardon, which allowed Booth to go free in the very last days of Buchanan's presidency. As James McPherson writes in Battle Cry of Freedom: The Civil War Era, 1848-1865, an even more inflammatory case occurred in Ohio:

"The most poignant of these cases involved Margaret Garner, who in January 1856 escaped with her husband and four children from Kentucky to Ohio. When a posse was about to capture them, Margaret seized a kitchen knife, slit the throat of one daughter, and tried to kill her other children rather than see them returned to slavery. The state of Ohio requested jurisdiction over Garner to try her for manslaughter, but a federal judge overruled state officials and ordered the Garners returned to their owner. That worthy gentleman promptly sold them down the river to New Orleans. On the way there one of Margaret's other children achieved the emancipation she had sought for him, by drowning after a steamboat collision."