H/t to Eric Foner, author of the book, Gateway to Freedom: The Hidden History of the Underground Railroad (all citations listed as “Foner” refer to this book) and current events for inspiring today’s post.
First, some history. The fugitive slave clause of the Constitution came about at the behest of the SC delegation:
On August 28 the convention considered the fugitives from justice clause. Butler and Charles Pinckney attempted to amend this provision “to require fugitive slaves and servants to be delivered up like criminals.” Roger Sherman sarcastically countered that he “saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.” James Wilson objected that this would cost the free states money. Significantly, this opposition came from two delegates who usually sided with the South. Butler wisely “withdrew his proposition in order that some particular provision might be made apart from this article.”57… …Immediately after this vote [on a commerce-related issue], Butler reintroduced the fugitive slave clause. Without debate or recorded vote, it too passed. 61 The last bargain over slavery had been made. The northerners who had opposed the fugitive slave provision only a day before were now silent. Source: The Covenant with Death and How It Was Made, Part 2
It is all too often assumed that northern states objected to any of the several slave clauses in the Constitution on the basis of morality, while southern states insisted on their inclusion if they were to support the new Constitution. The reality is that major concessions were made on the issue of slavery, because eradicating slavery was not a priority for northern delegates.
This final compromise over the wording of the fugitive slave clause was an entirely appropriate way to end discussion of slavery at the convention. Throughout the convention, the delegates had fought over the place of slavery in the Constitution. A few delegates had expressed moral qualms over slavery, but most of the criticism had been political and economic. Northerners opposed representation for slavery because it would give the South a political advantage; Virginians opposed the slave trade, at least in part, because it would undermine the value of their excess slaves. The initial reaction to the fugitive slave clause typified this. When Pierce Butler and Charles Pinckney first proposed it, James Wilson complained, “This would oblige the Executive of the State to do it, at public expense.” 66 The costs Wilson worried about were more financial than moral…
…Indeed, the slave states had obtained significant concessions. Through the three-fifths clause they gained extra representation in Congress. Through the electoral college their votes for President were far more potent than the votes of northerners. The prohibition on export taxes favored the products of slave labor. The slave trade clause guaranteed their right to import new slaves for at least twenty years. The domestic violence clause guaranteed them federal aid if they should need it to suppress a slave rebellion. The limited nature of federal power and the cumbersome amendment process guaranteed that, as long as they remained in the Union, their system of labor and race relations would remain free from national interference. On every issue at the convention, slaveowners had won major concessions from the rest of the nation, and with the exception of the commerce clause, they had given up very little to win these concessions. The northern delegates had been eager for a stronger Union with a national court system and a unified commercial system. Although some had expressed concern over the justice or safety of slavery, in the end they were able to justify their compromises and ignore their qualms. Source: The Covenant with Death and How It Was Made, Part 2
Although enshrined in the Constitution, the fugitive slave clause was highly ambiguous in terms of the mechanisms of enforcement. Conflict was created between the newly-ratified Constitution and state laws that had been on the books prior to ratification. Several states allowed for gradual emancipation of slaves (e.g. CT enacted a gradual emancipation law that freed children born to enslaved women after March 1, 1784; adults were not freed, and even the children had to reach adult age before gaining their full freedom). In PA, a gradual emancipation law was passed and included a clause that required owners to register their living slaves; if the slave was not registered, they would become automatically free. After a slave, freed under PA law, was kidnapped and taken to VA as a fugitive slave (under VA law), the Fugitive Slave Act of 1793 was enacted.
Designed to spell out more clearly how fugitive slaves could be recovered, it also firmly established the “extraterritoriality” of slavery; a state could abolish slavery but was still bound to respect the laws of states which did not. On the other hand, the act left room for states to enact their own, additional procedures to rendition proceedings which could make them slightly more equitable.
The brief 1793 enactment consisted of four sections, the first two of which dealt with fugitives from justice. The portion relating to slaves provided that an owner or his agent could seize a runaway and bring him or her before any judge or magistrate with “proof” (the nature unspecified – it could be a written document or simply the word of the claimant) of slave status, whereupon the official would issue a certificate of removal. Any person who interfered with the process became liable to a lawsuit by the owner…
…The law made rendition essentially a private matter, identifying little role for the state or federal governments. It put the onus on the owner to track down and apprehend the fugitive, frequently a difficult and expensive process. On the other hand, it offered no procedural protections allowing free blacks to avoid being seized as slaves – there was no mention of the accused fugitive having the right to a lawyer or a jury trial, or even to speak on his own behalf. Source: Foner, p. 39
The enforcement of the 1793 Act in northern states was sporadic, but its very existence gave rise to anti-slavery societies and the beginnings of the Underground Railroad. In addition, many states enacted “personal freedom laws” to counteract the 1793 law. Some of the personal freedom laws allowed for trial by jury and the appointment of attorneys for fugitives; some states forbade state authorities from cooperating or participating in the capture and return of slaves. However, it also opened the door for white supremacists to start removing black Americans from the north, whether fugitive or free. In New York, Richard Riker, the first district attorney of New York County, was a noted member of the “Kidnapping Club”:
Slave catchers knew that New York was fertile ground, and they prowled the city streets with the law on their side. The U.S. Constitution protected the right of slave owners to reclaim runaways, and the 1793 Fugitive Slave Law established the procedure. It required little more than a hearing before a U.S. judge or a local magistrate, and some paperwork. Those who interfered were subject to a $500 fine.
If a captive admitted to being an escaped slave, his or her fate was sealed. If not, the judge or magistrate made a determination, often relying on a vague description: “He is about 5 feet 10 inches high, about 30 years of age, very dark complexion … large whiskers, and a sharp face.” Most hearings were over quickly, and captives could be on a southbound ship before family or friends knew they were missing.
…names (and those of informers, black or white) were circulated by the New York Committee of Vigilance, a mostly black organization formed in 1836. It focused much of its effort on the men who made slave catching a thriving business in the city: Boudinot and Nash, both New York policemen, and City Recorder Richard Riker, the local magistrate who usually ruled in their favor. Local abolitionists called this threesome the Kidnapping Club. Source:Before Solomon Northup: Fighting Slave Catchers in New York
The relative ineffectiveness (as long as you weren’t a fugitive slave or a free person sent back/into slavery) of the 1793 Act, as well as the efforts in some northern states to ameliorate its impact, infuriated slave states. In 1850, a stronger fugitive slave act was enacted:
Part of Henry Clay’s famed Compromise of 1850—a group of bills that helped quiet early calls for Southern secession—this new law forcibly compelled citizens to assist in the capture of runaway slaves. It also denied slaves the right to a jury trial and increased the penalty for interfering with the rendition process to $1,000 and six months in jail.
In order to ensure the statute was enforced, the 1850 law also placed control of individual cases in the hands of federal commissioners. These agents were paid more for returning a suspected slave than for freeing them, leading many to argue the law was biased in favor of Southern slaveholders. Source: Fugitive Slave Acts
At this point (if you’re still reading!), you must be wondering why I’m providing this historical overview.
Less than 25 miles from my home, this is why.
A 14-year-old boy nearly lost his life after being shot at while trying to stop at a home in Rochester Hills, Mich., to ask for directions to school: https://t.co/1Yj6ze9rOi pic.twitter.com/eqw2lYmQfI
— The Root (@TheRoot) April 15, 2018
And this is why; is this really that much different from an 1850s rendition of a freedman?
@Starbucks The police were called because these men hadn’t ordered anything. They were waiting for a friend to show up, who did as they were taken out in handcuffs for doing nothing. All the other white ppl are wondering why it’s never happened to us when we do the same thing. pic.twitter.com/0U4Pzs55Ci
— Melissa DePino (@missydepino) April 12, 2018
It’s because we need memorials like this…
— Bee Rowlatt (@BeeRowlatt) April 16, 2018
…but still don’t understand enough to describe them like this:
@CNNTravel @CNNPolitics @CNN: your headline for @niaCNN ‘s article on the lynching museum was terrible. I’d bet two dollars a white editor came up with that nonsense. 😑 No worries, I gotchu: pic.twitter.com/gIzYrwiNqR
— Big Sister CheckUpOnIt (@KHough09) April 9, 2018
And with dehumanization being at the center of our history, it’s because in 2018, articles like this still need to be written…
“White fear is a powerful force. Once in the bloodstream it can make calm black customers look scary. It can even make little black boys look scary. Ask Tamir Rice—well, you can’t literally ask him because he’s dead.” — @Toure https://t.co/PjosXe1Bge
— The Daily Beast (@thedailybeast) April 17, 2018
…or tweetstorms like this.
The only thing shocking to me about the racism of @Starbucks employees is how shocked people are by it.
Y’all have no idea how many hurdles black people have to jump over just to get through a day.
And this starts so young. So much of our lives are stolen due to racism
— Ijeoma Oluo (@IjeomaOluo) April 16, 2018
Trayvon Martin would be 23 now, and yet how many more names have we learned to say? And how many have we never heard?
The Not Forgotten Tee contains the names of just 152 of the black men, women, and children who have been killed by police since 2015. You may recognize some of them, and others you may not. But we should know their names and we should say their names. They are not forgotten. pic.twitter.com/eEUrHyB1oA
— Do Better (@dobetterbox) April 10, 2018
White people, start here.
Dear White People (@JSim07): I want you to answer 3 questions before you call the cops on black people. 1. Am I in danger? 2. Are these people or person doing anything other than being black in public? 3. Is my fear at all justified? Asking these questions could save our lives.
— DanielleMoodie-Mills (@DeeTwoCents) April 15, 2018
Or maybe here.
Yes. Or the time I broke down from the constant micro aggressions & was told maybe I couldn’t handle the job but a white woman who cried (bc my email was “abrupt”) was coddled and allowed the day to recover. https://t.co/pFNGm0WeET
— Nichole ✨✨✨ (@tnwhiskeywoman) April 17, 2018
Let’s talk…but most of all, let’s listen.
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