§77. Character of the personal liberty laws.—The personal liberty laws were statutes passed in the Northern States whose object was to defeat in some measure the national Fugitive Slave Law. Often their ostensible purpose was to protect the free negroes from kidnappers, and to this end they secured for the alleged fugitive the privilege of the writ of habeas corpus, and the trial by jury. Sometimes, however, they frankly avowed their aim as a deliberate attempt to interfere with the execution of the United States statutes. In the following examination of these laws, they will be considered first chronologically, and afterward more minutely according to their subject matter. In previous chapters we have noticed many instances wherein fugitives have been befriended by individuals, or by organizations like the Antislavery Societies or the Underground Railroad. But the action of the State governments in the personal liberty bills, from the time the Fugitive Slave Act of 1793 began to be executed to the outbreak of the Civil War, showed that the dissatisfaction of the North was fundamental, and was not confined merely to the few in the van of the Antislavery movement.
Analysis.
§78. Acts passed before the Prigg decision (1793-1842).—Although the so-called personal liberty laws were not passed until about 1840, Indiana256 and Connecticut257 had before that time provided that on appeal fugitives might have a trial by jury. The Connecticut law, in contrast to the hostile spirit of later legislation, was entitled, "An Act for the fulfilment of the obligation of this State imposed by the Constitution of the United States in regard to persons held to service or labor in one State escaping into another, and to secure the right of trial by jury in the cases herein mentioned." Notwithstanding this preamble, the law provided for fining State officials who might take part in fugitive slave cases.
The first definite personal liberty laws were passed by Vermont258 and New York,259 in 1840, and were entitled Acts "to extend the right of trial by jury." They not only insured jury trial, but also provided attorneys to defend fugitives. This was the only law of the kind New York ever passed, and proved of little value, since it soon fell into disuse, and was almost forgotten.
§79. Acts passed between the Prigg decision and the second Fugitive Slave Law (1842-1850).—After the Prigg decision in 1842, wherein it was declared that the law must be executed through national powers only, and that State authorities could not be forced into action,260 a new class of statutes sprang up. The State legislatures seized the opportunity afforded them by Judge Story's opinion, to forbid State officers from performing the duties required of them by the law of 1793, and prohibited the use of State jails in fugitive slave cases. Such laws were passed in Massachusetts,261 Vermont,262 Pennsylvania,263 and Rhode Island.264 In 1844, Connecticut repealed her act of 1838, as being then unconstitutional, but retained the portion forbidding State officers to participate in the execution of the law.
§80. Acts occasioned by the law of 1850 (1850-1860).—The provisions of the law of 1850 roused yet more opposition in the North, and before 1856 many of the States had passed personal liberty bills. The new national law avoided the employment of State officers. This change in the statute brought about a corresponding alteration in the State legislation, and we therefore find the acts of this period differing somewhat from those of earlier years. They almost invariably prohibited the use of State jails, they often forbade State judges and officers to issue writs or to give assistance to the claimant, and punished severely the seizure of a free person with the intent to reduce him to slavery.
Should an alleged fugitive be arrested, the personal liberty acts were intended to secure him a trial surrounded by the usual legal safeguards. The identity of the person claimed was to be proved by two witnesses; or they gave him the right to a writ of habeas corpus; or they enjoined upon the court to which the writ was returnable a trial by jury. At the trial the prisoner must be defended by an attorney, frequently the State or county attorney, and a penalty was provided for false testimony. Any violation of these clauses by State officers was punished by penalties varying from five hundred dollars and six months in jail, as in Pennsylvania, to the maximum punishment in Vermont, of two thousand dollars' fine and ten years in prison.
Such acts were passed in Vermont,265 Connecticut,266 and Rhode Island,267 in Massachusetts,268 Michigan,269 and Maine.270 Later, laws were also enacted in Wisconsin,271 Kansas,272 Ohio,273 and Pennsylvania.274 Of the other Northern States, two only, New Jersey and California, gave any official sanction to the rendition of fugitives. In New Hampshire, New York, Indiana, Illinois, Iowa, and Minnesota, however, no full personal liberty laws were passed.275
§81. Massachusetts acts.—Let us now examine the purport of these acts in the various States. The general tenor and effect are best seen in Massachusetts, which may be selected as a typical State. In 1837, Massachusetts passed a law "to restore the trial by jury, on questions of personal freedom." This secured to the prisoner a writ of personal replevin, which was to be issued from and returnable to the Court of Common Pleas for the county in which the plaintiff was confined, and was to be issued fourteen days at least before the return day. If the prisoner were secreted, the court might send out a capias to take the body of the defendant. This act allowed an appeal to the Supreme Judicial Court.
In 1842, the Latimer case276 occurred. This so aroused public sentiment that a great petition, signed by sixty-five thousand people, was sent to the legislature, asking for a new personal liberty law. On the basis of the Prigg decision, a law was enacted which forbade State magistrates to issue certificates or take cognizance of the law of 1793, and withheld the use of State jails for the imprisonment of fugitives.277
In 1851, in the Shadrach case,278 there was opportunity for testing the value of this law. The fugitive was not indeed confined in any jail, but there was little difficulty in providing a place of detention, and the court-house was secured. In this year, acting upon a clause in the Governor's message, which treated of the new Fugitive Slave Law of 1850, a committee in the legislature made a report, accompanied by resolutions and a bill further to protect personal liberty; but no law was passed, and there the matter rested until 1855.279
After the Sims280 and Burns281 cases, in which the court-houses were again used in the place of jails, the heat of public indignation led to petitions to the legislature asking for a more stringent personal liberty law. A joint committee prepared a bill, which was passed, but was vetoed by Governor Gardner, who had been advised by the Attorney General that some of the clauses were unconstitutional. But so strong was the influence in its favor that it was passed over the veto by a two-thirds vote.282 The feeling that it was probably unconstitutional, however, must have strengthened in the next three years: for in 1858283 we find another act which amended the act of 1855. This limited some provisions, and repealed the following sections: the tenth, which required that any person who should give a certificate that a person claimed as a fugitive was a slave should forfeit any State office he might hold; the eleventh, which forbade any person acting as attorney for a claimant to appear as counsel or attorney in the State courts; the twelfth, which made a violation of the preceding section sufficient ground for the impeachment of any officer of the Commonwealth; the thirteenth, which forbade any United States officer empowered to give certificate or issue warrants from holding a State office; and the fourteenth, which made liable to removal any person holding a State judicial office who should also hold the office of Commissioner.
Review of the Acts by States.
§82. Review of the acts by States.—Of the other New England States, Maine had no personal liberty law until 1855.284 Two years after, however, in 1857,285 a portion of an act declaring free all slaves brought by their masters into that State was devoted to a provision "to punish any attempt to exercise authority over them."
In New Hampshire, one of the laws of 1857286 enacted that every person holding any person as a slave for any length of time, under any pretence, should be deemed guilty of felony; but provided that this should not apply to United States officers executing any legal process.
Vermont, by an act in 1840,287 extended to fugitives the right of trial by jury, but after three years this was repealed,288 only to be renewed in 1850.289
Connecticut, as has been noticed, had no personal liberty law. Rhode Island first passed such an act in 1848.290 This forbade State officers to take cognizance of fugitive slave cases, and the use of State jails. Another statute, in 1854,291 extended these provisions so as to apply to the national law of 1850.
The act of 1840 was the only Personal Liberty Law of New York.292 Pennsylvania, some seven years later, forbade the use of jails, and punished State officers for participating in fugitive slave cases.293 It also enacted a regulation of the same character as late as 1860.
Ohio made but one provision on the subject, and that lasted but a year. Her jails were closed to suspected slaves in 1857,294 but in 1858 this law was repealed.295
Michigan passed such an act in 1855,296 with the usual clauses on the use of jails and jury trial, and imposed a fine on false testimony against the defendant.
In 1858 Wisconsin and Kansas also passed similar acts.297
§83. Effect of the personal liberty laws.—Since the avowed purpose of these laws was to obstruct the execution of one of the United States statutes, national and State legislation were thus brought into direct conflict; but the Fugitive Slave Law was held constitutional by the Supreme Court, and any attempt to prevent its enforcement by positive means, however righteous from an ethical standpoint, must be considered an infraction of the Constitution, and of the common understanding between the States, on which the Union was founded.298 The provisions denying the use of State institutions and officers, though distinctly unfriendly, were not unconstitutional. Many of the Abolitionists, however, held the national law to be unconstitutional, and at the same time morally so repugnant that it ought never to be executed.299 The State laws were brought up by South Carolina, in her declaration of the causes of secession, as one of the chief grievances against the North; and President Buchanan, in his Message of 1860,300 said they were "the most palpable violations of constitutional duty which had yet been committed." They must certainly be classed in principle with the Nullification Ordinance of 1832. Indeed, the legislature of Wisconsin, after the Supreme Court had overridden the decision of the State courts in the case of Ableman v. Booth that the national law was contrary to the national Constitution, passed some resolutions in which a "positive defiance is urged as the 'rightful remedy'" against such legislation.301
