THE FUGITIVE SLAVE LAW.

REMARKS IN THE SENATE OF THE UNITED STATES, AUGUST 19, 1850.

I HAPPEN to have on my table, at this moment, Mr. President, a little pamphlet, of which this is, I think, the second number, entitled, "The United States Postal Guide," and which contains a paragraph which I would venture to recommend to the attention of the Senator from Virginia, (Mr. Mason.) It is in these words:

“FUGITIVE SLAVES. In an action brought in the United States District Court of the Southern District of Iowa, by Ruell Daggs, of Clark county, Missouri, plaintiff, against Elihu Frazier and four other defendants, for harboring, concealing, and preventing the arrest of plaintiff's slaves, who had absconded into Iowa, the jury found a verdict for the plaintiffs of $2,900.

"A similar trial had before Judge McLean, in the Circuit Court of the United States, by John Norris, of Kentucky, against eight residents of Michigan. The number of slaves was four, and the damages given by the jury $2,856."

Now, Sir, here we have the result of the latest judicial proceedings on the subject before us. Here we have a record of the most recent decisions which have taken place in two of the free States of this Union. And it seems to me that here is quite sufficient evidence to show that, whatever insurmountable obstacles there may be in a trial by jury to the recovery of the fugitive slaves themselves, there is no such insurmountable obstacle to the recovery of the most ample and exemplary damages against those who have aided in their escape. I think this will serve, to some extent, as an answer to the suggestions of the Senator from Virginia. It will prove, at any rate, that the South is not so entirely without remedy or redress for the wrongs of which she complains, even as the law now stands. For myself, Sir, without intending to detain the Senate at any

length, I cannot help expressing my hearty concurrence in the amendment proposed by the Senator from New Jersey, (Mr. Dayton.) I understand that it is the same proposition which was laid on the table of the Senate, some weeks ago, by my distinguished predecessor in this seat, (Mr. Webster,) and which was prepared and proposed by him after a careful consultation with one of the judges of the Supreme Court, (Mr. Justice McLean,) whose decisions in cases of this kind have always, I believe, been satisfactory to the country." I hold it to be a just and reasonable provision, and one which ought to form a part of any bill which shall be passed for this purpose. The Senator from Georgia seemed to go upon the idea that there is but one question to be decided with regard to a person claimed as a fugitive from labor; and that is the question whether he belongs to, or owes labor or service to, the party who claims him. But it seems to me that there is another and a preliminary question, and that is, whether he is a fugitive at all; whether he belongs or owes service to anybody? It must always be a question whether such a person be your slave, or whether he be our freeman? Now, whether he be your slave might be a question very proper to be tried by a jury of the vicinage, and to be decided on the spot where the professed owner resides; but whether he be our freeman would seem to be a question which, upon the very same principle, should be tried where he is seized, and where the immediate liberty which he enjoys is about to be taken away from him.

MR. BUTLER. Will the Senator allow me to ask the question fairly, so as to put it before the country, whether the Senator knows of a single instance where a citizen has claimed a person as a slave who was not his own, or where one has so claimed a person while acting as an agent for the owner?

MR. WINTHROP. Mr. President, if I understand aright the history of this very law of 1793, which we are now engaged in amending, I think the Senator from South Carolina will be answered if I briefly recite that history. As I understand the matter, that law originated on this wise. In the year 1788 or 1789, a free negro, residing in the State of Pennsylvania, named

*Webster's Works, Little & Brown's ed. 1851, vol. v. pp. 373, 374.

John, was kidnapped by three white men from the State of Virginia. These three white men were indicted for the crime; and as they had fled to the State of Virginia, they were demanded by Governor Mifflin, of Pennsylvania, under the instigation of the abolition society of that State, over which, if I mistake not, Benjamin Franklin about that time presided. The Governor of Virginia, whose name I do not remember,* decided that there was no law for carrying into effect that clause of the Federal Constitution just then going into operation, under which fugitives from justice were to be surrendered. He therefore refused to deliver up the three white men, indicted as having kidnapped a free negro. Governor Mifflin, soon after, communicated these facts to General Washington, then President of the United States, who communicated them to Congress, and upon this communication the law of 1793 was based. That law provides, first, for the return of fugitives from justice, and then for the return of fugitives from service or labor. And the brief history which I have thus given of its origin, will in some degree account for the fact, that these two incongruous matters are mingled together in the same bill.

I

It seems then, Mr. President, that, at the very outset of the history of this Government, a case like that respecting which the Senator from South Carolina inquires, did actually occur, and that it gave occasion to the passage of the very statute which is now, for the first time, about to be amended. cannot answer as to other cases. There may, or may not, have been others. It is said that they are not very likely to happen, and I admit that it is so. But as long as there is danger that they will occur, as long as there is a possibility that they may occur, so long will there be opposition to the seizure and abduction of supposed fugitives in the summary and irresponsible manner provided for in this bill. And this leads me, Sir, to say one word more. I believe, in all sincerity, that more fugitives from labor and service would be recaptured and recovered by their owners under a law providing for a trial by jury, than under the law of 1793, or under the law which the Senator from Virginia has now submitted to our considerBeverly Randolph.

ation. And why would it be so? Because all laws depend in no small degree for their efficiency upon the public sentiment of the State or the community in which they are to be executed. If there be a strong sense of the injustice and oppressiveness of any particular provision, whether of this law or of any other, there will always be more or less of opposition to its execution. On the other hand, if provisions should be inserted in this bill like those proposed by the Senator from New Jersey, which cannot but accord with the sense of justice, and the strong preconceived opinion of right, of the communities in which this law is to have its main operation and effect, I believe it would in most cases be faithfully carried out, and that more fugitives from labor would be returned to their masters under its operation, than have been returned within the last half century. That is my own honest opinion.

At any rate, Sir, I shall vote for the amendment offered by the Senator from New Jersey, as right and just in itself, whatever may be its effect. I am in favor of recognizing the right of trial by jury in all cases where a question of personal liberty is concerned. I hope the amendment will be adopted. But if not, I shall offer one myself, which shall at least provide that the writ of Habeas Corpus may be allowed in cases of this kind, and that the certificates of these commissioners shall not prevent a review of the question by some more responsible magistrate than is provided for in this bill.

MR. MASON. I took some little interest in learning the facts of the case just adverted to by the honorable Senator from Massachusetts. I understood the Senator to reply to the question of my friend from South Carolina, which was, whether he ever knew of any instance in which a man claimed as a slave by a claimant from a slave State was found to be a free man and not a slave; and the Senator, by way of adducing a case, instanced that out of which this law of 1793 grew. The history of that law I understand, I think, as well as the honorable Senator from Massachusetts; and it is this: Three men, from the State of Virginia, went into the State of Pennsylvania, and carried off a negro, and brought him to the State of Virginia. And they were indicted in Pennsylvania for "kidnapping," as it is called. A demand was made by the Governor of Pennsylvania upon the Governor of Virginia for the restoration, or rather the surrendering, of these three men as fugitives from justice, the offence charged being that they had committed a felony, in taking off this negro who was alleged to be free. Now, I want to know from the Senator from Massachusetts where he learns that the negro thus taken in Pennsylvania was a free man and not a slave?

MR. WINTHROP. I will answer the honorable Senator from Virginia with great pleasure. In the first place, Sir, our rule of presumption in Massachusetts is precisely opposite to that which I believe generally prevails in Virginia. We hold that every colored person is a freeman until he is proved to be a slave. Now, there is no proof or allegation anywhere that this kidnapped negro was not free,- and the very indictment found against those who seized him and sold him, would seem to settle the question that he was free. I stated, however, in the second place, that he was a freeman, upon the evidence of a report which was made to the Legislature of Massachusetts some years ago, by a committee which had investigated the facts, and which describes him as "a free negro, named John." I do not understand, moreover, that in any of the proceedings connected with this case, or in any of the papers communicated to Congress at the time, the suggestion was anywhere made that this man was a slave; but, on the contrary, I understand that those papers everywhere speak of him as a freeman.* In regard to this point, however, I am ready to be corrected.

But, Sir, as I am called up again upon this subject, I cannot resist the opportunity of giving one more answer to the inquiry of my honorable friend from South Carolina, (Mr. Butler.) His question in substance is, where is there an instance of a free person being seized as a slave? Now, Sir, he must allow me to remind him and I assure him that I do so in no mere spirit of crimination or reproach-that such a thing may happen even under the express laws of his own State. It is well known, and I believe that the Senator from South Carolina himself has on some occasion expressed his regret at the fact,that the State of South Carolina, and other slaveholding States, have laws upon their statute-books under which free persons of color, coming from Boston or New York or Philadelphia, or any other of the commercial cities of the Union, in Northern vessels, and arriving in Southern ports, may be seized, without any charge of crime, and without any examination except to ascertain the color of their skin, may be carried on shore and im

*American State Papers, vol. xx. pp. 38-43.