When the South Wasn't Such a Fan of States' Rights
Politico online -- January 23, 2015

Whenever I lecture to non-academic audiences about the Civil War era, someone is bound to insist that the South fought for states' rights rather than the long-term survival of slavery. In an extreme version of this view, Abraham Lincoln was not the Great Emancipator but a tyrant, the creator of the leviathan national state that essentially enslaved white Americans. This reading of the conflict is why a remarkable number of libertarians, self-proclaimed defenders of individual freedom, sympathize with the Old South, and why some even make excuses for slavery.

But this history omits one important part of antebellum history: When it came to enforcing and maintaining the peculiar institution against an increasingly anti-slavery North, the Old South was all too happy to forget its fear of federal power—a little-remembered fact in our modern retellings of the conflict.

The slavery exception to otherwise robust support for states' rights was a recurring feature of antebellum Southern politics. Southerners wrote into the Constitution a clause requiring the return of slaves who escaped from one state to another, and in 1793, only four years after George Washington assumed the presidency, they persuaded Congress to enact a law putting that clause into effect. Ironically, when it came to runaway slaves, the white South, usually vocal in defense of local rights, favored robust national action, while some northern states engaged in the nullification of federal law, enacting "personal liberty" laws that barred local officials from cooperating in the capture and return of fugitives.

The Old South also invoked federal power in other ways to strengthen slavery—for example, when it came to employing federal troops in the 1830s to remove Native Americans from southern lands ripe for cotton cultivation. The most striking example was the South's embrace of national power to capture and return fugitive slaves, especially as implemented in the Fugitive Slave Law of 1850. This law was the most robust expansion of federal authority over the states, and over individual Americans, of the antebellum era.

In the 1840s, as increasing numbers of slaves pursued freedom by running away to the North and a network of local groups, collectively known as the underground railroad, came into existence to assist them, southerners demanded national action. As part of the Compromise of 1850, which abolished the slave trade in the nation's capital and allowed territories recently acquired from Mexico to decide whether or not to allow slavery, Congress enacted the new, draconian fugitive slave law. The measure created a new category of federal officeholder, U.S. commissioners, authorized to hear cases of accused fugitives and issue certificates of removal, documents that could not be challenged in any court. The fugitive could neither claim a writ of habeas corpus nor testify at the hearing, whose sole purpose was to establish his or her identity. Federal marshals could deputize individuals to execute a commissioner's orders and, if necessary, call on the assistance of local officials and even bystanders.

The act included severe civil and criminal penalties for anyone who harbored fugitive slaves or interfered with their capture, as well as for local officials who failed to carry out a commissioner's order or from whom a fugitive escaped. No local law could interfere with the process; northern personal liberty laws were specifically mentioned in the act as examples of illegitimate "molestation" of the slaveowner. To forestall resistance, the federal government at its own expense could deliver the fugitive to his or her owner.

This law could hardly have been designed to arouse greater opposition in the North. It overrode numerous state and local laws and legal procedures and "commanded" individual citizens to assist, when called upon, in capturing runaways. It certainly did not reveal, on the part of slaveholders, sensitivity to states' rights. Southern political leaders insisted that northern compliance with the new law constituted the key test of the Compromise of 1850.

Anti-slavery activists predicted that the law would, in fact, strengthen their movement. The American and Foreign Anti-Slavery Society predicted that it would awaken northerners to the plight of fugitive slaves and change how the underground railroad operated. "Heretofore," it declared, "the fugitive has been aided in secret." Now, "men will strive who can most openly do him service." The infringement on northerners' liberties would inspire greater defiance. This is, indeed, what happened.

The first arrest under the Fugitive Slave Act of 1850 took place in New York—a city whose economic fortunes were closely tied to the cotton trade, and whose political establishment was decidedly prosouthern. On Sept. 26, 1850, eight days after President Millard Fillmore signed the measure, two deputy U.S. marshals arrested James Hamlet at his job as a porter in a local store. Hamlet had escaped from Baltimore two years earlier and settled in Williamsburg, a Brooklyn village with a small black population, along with his wife and three children, all born in Maryland.

The hearing before a U. S. commissioner took place the day after Hamlet's arrest. (The Hamlet case, the New York Tribune noted sardonically, exhibited "very little of the 'law's delay.'" One might add that it also exhibited little respect for individual rights.) The representatives of Hamlet's owner identified him as a slave. Hamlet, who insisted that he and his parents had been previously set free, was not, in accordance with the provisions of the new law, allowed to testify. The commissioner directed marshals to deliver Hamlet to Baltimore at the federal government's expense. Hamlet was handcuffed and hurried to a waiting steamboat. The day after his arrest he was back in Maryland, lodged in prison. His wife knew nothing of these events until after his departure.

Hamlet's story did not end there. His newly-reinstated owner announced that Hamlet's freedom could be purchased for eight hundred dollars. Two thousand members of New York's black organizations, "with a slight and visible sprinkling of white abolitionists," according to a local antislavery newspaper, gathered at the African Methodist Episcopal Zion Church to collect contributions. A week after his arrest, Hamlet was back in the city, a free man. Few apprehended fugitives were as fortunate. Fugitive slave renditions continued to take place in New York City and in many other parts of the North until the eve of the Civil War. Before 1850, many runaways had settled in the free states; after the passage of the new law most continued on to Canada, which refused to extradite them. They were joined by free blacks who were also in danger of being caught up in the new law's procedures. The spectacle of individuals fleeing to another country to enjoy freedom mocked the prevailing self-image of the United States as an asylum for those denied liberty in foreign lands.

At anti-slavery public meetings, speakers, black and white, invoked the heritage of the American Revolution to justify violent resistance to an unjust law. An abolitionist in New Bedford, Massachusetts, called on fugitives to "practice the art of using firearms" so that they could shoot slave catchers. Such rhetoric often amounted to little more than bravado, but in some parts of the North, efforts to assist fugitives did take a decidedly violent turn. Dramatic attempts to rescue runaway slaves punctuated the 1850s—one study counts over 80 such confrontations. In October 1850, hundreds of armed blacks gathered at a jail in Detroit where a fugitive was being held. The frightened owner quickly agreed to allow his freedom to be purchased.

In September 1851, a predominantly black crowd in Christiana, Pennsylvania, routed a group of slave catchers that included a federal marshal and a Maryland owner, who were attempting to apprehend four fugitives. The crowd was led by William Parker, a runaway slave at whose home two of the fugitives were hiding. The slaveowner died in the affray, Parker and the fugitives fled to Canada and the administration of Millard Fillmore obtained indictments for treason—a capital crime—against 41 men, the largest such mass indictment in American history. Pursuing the case proved almost impossible in an area with strong antislavery sentiment. Only one person, a white miller who claimed to have been an innocent bystander, was brought to trial. After deliberating for only 15 minutes, the jury returned a verdict of not guilty.

Boston, a center of abolitionism, witnessed several confrontations over the rendition of fugitives. In February 1851, a slaveowner arrived in the city seeking to retrieve Shadrach Minkins, who had escaped from Virginia in 1850 and found a job in a Boston coffee house. Two deputy U.S. marshals arrested Minkins, the first fugitive seized in New England under the new law. But as the hearing before a U. S. commissioner progressed, a crowd of men led by the black abolitionist Lewis Hayden entered the courtroom "like a black squall" and carried Minkins off. Eight, including Hayden, were put on trial for taking part in the rescue, but none was convicted. Minkins ended up in Montreal.

Sometimes, Boston's activists failed, most dramatically in 1854, when Anthony Burns, a 21-year-old fugitive slave from Richmond, was apprehended and brought before Edward G. Loring, a prominent jurist acting as U.S. commissioner. Hundreds of persons gathered at the courthouse, but guards repulsed a rescue attempt. Following the letter of the law, Loring ordered Burns returned to slavery. It took some 1,600 men—police, militia units and three companies of federal infantry and marines—to march Burns to a waiting ship. The case was a powerful illustration of the use of federal power in the interests of slaveholders, but it also reinforced antislavery sentiment. A new Massachusetts personal liberty law, enacted in 1855 over the governor's veto, barred state and local officials from assisting in renditions, granted accused fugitives a jury trial and required any state judge who accepted appointment as a federal commissioner to resign from the bench. Loring himself was dismissed from a position at Harvard Law School and four years later removed from his judgeship, although President James Buchanan then appointed him to the federal judiciary, where he served until his death in 1877. Anthony Burns proved to be the last person remanded to slavery from anywhere in New England. But in other parts of the country, the Fugitive Slave Law continued to be enforced until the outbreak of the Civil War.

Southerners had little sympathy for northern resistance to the federal law. Even though few fugitive slaves reached the North from South Carolina (the state most vocal in asserting its right to nullify federal law), the longest paragraph in the state's "Declaration of the Immediate Causes" of secession of December 1860 related to northern obstruction of the rendition of fugitives. "An increasing hostility on the part of the non-slaveholding states to the institution of slavery," the document maintained, had led the free states to render "useless" the fugitive slave clause, without which the Constitution would never have been ratified. With the North having "broken" the constitutional compact, South Carolina, in turn, was "released from her obligation" to it.

Even though it became a dead letter as the Civil War progressed, the Fugitive Slave Law was not repealed until 1864, over a year after Lincoln issued the Emancipation Proclamation. During Reconstruction, it enjoyed an ironic afterlife when Lyman Trumbull, chair of the Senate Judiciary Committee, used the infamous 1850 statute as a model for the Civil Rights Act of 1866, which extended to black Americans many of the rights previously enjoyed exclusively by whites. To do so, Trumbull drew on the 1850 law's enforcement mechanisms and the way it superimposed federal power on state law in order to establish a national responsibility for securing a constitutionally-protected right (in 1850 the right to retrieve fugitive slaves, in 1866 the right of blacks to liberty, recently secured in the Thirteenth Amendment). "The act that was passed that time for the purpose of punishing persons who should aid Negroes to freedom," Trumbull declared, "is now to be applied ... to the punishment of those who shall undertake to keep them in slavery." Thus, as Rep. James Wilson of Iowa put it, in the aftermath of the Civil War Congress turned "the arsenal of slavery upon itself," wielding "the weapons which slavery has placed in our hands ... in the holy cause of liberty."

That the Fugitive Slave law served as a blueprint for the Civil Rights Act suggests in a nutshell the lesson of this chapter of history. Neither federal power nor states' rights exist in a vacuum. Both can be threats to the liberties of citizens and both can be modes of protecting them. It all depends on the uses to which federal and state power are put. And interpretations of the constitution can be strategic tools as much as unwavering ideologies. The point is not that constitutional doctrines have no meaning, but that constitutional consistency is no match for political and social self-interest.

The same might be said for views of history. It would be more accurate to acknowledge that slavery was the fundamental cause of the Civil War—a point made straightforwardly by Abraham Lincoln in his great second inaugural address. But for those conservatives and libertarians of today who trace their intellectual lineage to the Old South's supposed commitment to states' rights, it's inconvenient to remember the region's motivation as the preservation of slavery. So I expect to continue to see that lone raised hand, in the back of the lecture hall, ready to protest that the war was all about states' rights—despite what the historical record shows.