11/27/13 - the most horrendous law in u.s. history

In today's selection -- from Millard Fillmore by Paul Finkelman. The Congress of the United States -- the very Congress created by the wonderful and epoch-making Constitution of the United States -- is nevertheless capable of creating truly horrendous laws. The most oppressive law in United States history was arguably the Fugitive Slave Act of 1850, crafted by Henry Clay as a compromise between North and South when it was in fact a capitulation to the South, it was marshaled through Congress by Senator Stephen Douglas, and was vigorously enforced by Millard Fillmore, the president many regard as the worst in our history. It led directly to the demise of the American Whig party and the first shots of the American Civil War:

"The Fugitive Slave Act of 1850 was one of the most repressive and unfair statutes ever adopted by the United States. It was also a law that created, for the first time, a national system of law enforcement. In the wake of Prigg v. Pennsylvania, state officials throughout the North had refused to enforce the Fugitive Slave Act of 1793, and a number of states passed legislation prohibiting their judges from hearing fugitive slave cases and prohibiting federal officials or private slave catchers from using state jails to secure alleged fugitive slaves. Southerners complained, with some legitimacy, that these new personal liberty laws made it impossible for them to exercise their constitutional right to recover fugitive slaves. ...

"Under the law federal marshals could be fined $1,000 if they failed to 'use all proper means to diligently' execute the law. Marshals and commissioners were empowered to call on the state militia and the United States Army, and to create a federal posse to enforce the law. The statute gratuitously declared that 'all good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law' although there was no clear remedy if citizens refused to help enforce the law. If these measures failed, however, and marshals were unable to prevent a rescue by a mob, they could be held personally liable for the value of any slave who escaped their custody. No other federal law had ever provided such penalties for officers who were unable to implement a law.

"Anyone who aided or harbored a fugitive slave or interfered with the rendition process, for whatever reason, was subject to a $1,000 fine and six months in jail. In addition, they were subject to civil damages of $1,000 to be paid to the owner of a slave for each slave who was not recovered. Many northerners found these provisions particularly obnoxious because, if literally enforced, a farmer could be fined, sued, or jailed for giving a cup of water to a black person walking down the road. The harsh penalties and the minimal standards of proof could force northern whites to assume that all blacks they saw were fugitives, even though in 1850 there were more than 150,000 free blacks living in the North. The new law not only imperiled the liberty of free blacks but also undermined their relationships with their white neighbors. Even a free black in the North might be reluctant to hire another black for fear the person was a fugitive, and the very act of hiring could be a violation of the law. ...

"These provisions punished free people -- white and black -- if they helped fugitives. Even more obnoxious were the procedures for returning a slave. Under the law, the alleged slave would get a summary hearing before a federal judge or commissioner. The court was precluded from even considering a writ of habeas corpus. This was the first time the U.S. Congress had suspended the privilege of the writ of habeas corpus, and it was done in violation of the constitutional provision holding that 'The Privilege of the Writ of Habeas Corpus shall not be suspended' except in response to an invasion or rebellion."

"The law required that a commissioner or judge 'hear and determine the case' in 'a summary manner,' without a jury. The claimant had only to present 'satisfactory proof' that the person claimed was a fugitive slave, and this could be done by 'deposition or affidavit, in writing, to be taken and certified' before any judge or magistrate in the home state of the slave owner. The potential for fraud, or even mistaken identity, was huge. A master could send his agent to a city in the North to bring back a slave the agent had never seen before. The agent might seize any black person who fit the description in the 'deposition or affidavit,' bring the individual before a judge, and demand the right to remove the person as a fugitive slave.

"The most outrageous and unfair aspect of the law involved the testimony of the alleged fugitive. According to the law, 'In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence.' Under this law someone could be dragged south as a slave and never be allowed to offer his or her own voice as evidence that he or she was free. ...

"The outrageousness of the testimony provision was matched by the offensiveness of the provision for paying the commissioners and judges who heard these cases. If a judge ruled against the claimant, thus setting the alleged slave free, the judge was entitled to a five-dollar fee. If the judge ruled for the master, he got a ten-dollar fee. Most northerners viewed this as a blatant attempt to bribe the courts. ...

"A northern white could be fined, jailed, and sued for helping a black person who he mistakenly thought was free, but a southerner would face no sanction for seizing a free black and fraudulently or mistakenly claiming him or her as a slave."


Paul Finkelman


Millard Fillmore


Times Books


Copyright 2011 by Paul Finkelman


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