Fugitive Slaves, the Higher Law, and the Coming of the Civil War

New York Senator and future Secretary of State William Seward proclaimed in 1850 that a "higher law than the Constitution" required opposition to slavery. That same year, Congress passed the Fugitive Slave Law as part of the Compromise of 1850. Controversies over this law led to intense dramas played out in communities and federal courts across the North during the 1850s. In Fugitive Justice, law professor Steven Lubet traces the history of three trials arising from the Fugitive Slave Law to argue that the courtroom battles both reflected and widened sectional fissures and helped cause the Civil War. In particular, he insightfully examines how the fugitive slave trials impelled abolitionist lawyers and others to gradually embrace Seward's "higher law" doctrine over adherence to positive and constitutional law.

While several historians have written microhistories of particular fugitive slave rescues and trials, Lubet has produced the first general history of the Fugitive Slave Law in over forty years.¹ He begins by tracing the history of fugitive slave legislation from the Constitutional Convention to 1850. The inclusion of a Fugitive Slave Clause in the Constitution, relatively uncontroversial at the time, responded to a 1772 British decision that had alarmed Southerners by asserting that a slave did not carry his servile status with him into free territory. Ironically, Lubet notes, the Fugitive Slave Clause empowered slaves, by transforming them into "de facto political actors, able to throw the machinery of government into motion, and often into confusion, simply by crossing the boundary between one jurisdiction and another" (p. 20). By fleeing the South, fugitives not only sought personal liberty, but also placed the issue of slavery squarely on the nation's agenda. He thus joins other recent historians in emphasizing the historical agency of enslaved people and the inherently political nature of their decisions to oppose slavery. By the 1830s, many Northern states had enacted personal liberty laws, primarily to protect free blacks from being returned to the South as fugitives. In 1842, though, the Supreme Court ruled Pennsylvania's personal liberty law unconstitutional and broadly authorized slaveholders to recapture fugitives in Northern states and return them to the South without judicial process. In response, Northern states forbade their law enforcement and judicial officials from participating in the recapture of slaves, a real difficulty for slave catchers in an era with almost no federal jails and few federal marshals.

Southerners demanded an invigorated Fugitive Slave Law in 1850, which required Northerners to participate actively in the return of escaped slaves. The law denied slaves a jury trial, the right to a writ of habeas corpus, and the right to testify in their own behalf. A federal judge or commissioner would render verdicts on whether to return a fugitive. In addition, a commissioner could demand that any Northerner participate in a fugitive-hunting posse. Northerners who aided a fugitive slave faced stiff penalties, including imprisonment for up to six months and a fine of up to $1,000. The controversy over the Fugitive Slave Law proved particularly toxic for sectional relations because of the role fugitives played in Southerners' fears over the weakening of slavery in the Upper South, the central place of escaped slaves in abolitionist propaganda, and Northerners' increasing resentment of Southern encroachments on cherished liberties. According to Lubet, the law thus ensured that the great compromise would only aggravate the sectional crisis "by thrusting the problems of slavery deeply into the North, while convincing Southerners that they would never obtain willing cooperation in the free states" (p. 325).

Throughout the 1850s, as Lubet demonstrates, one fugitive slave case after another gripped the country, continual irritants in the nation's festering sectional wounds. He focuses on three central cases, though he also detours into other fugitive slave incidents. (Curiously, he fails to mention one of the most explosive cases involving a slave rescue, the imprisonment in 1855 of Philadelphia abolitionist Passmore Williamson following his role in freeing Jane Johnson and...