Chap. I.

decision, though it had been sometimes disapproved, continued to be law.

For the purpose of giving effect to the clause, two Acts had been passed, divided by a long interval of time-the first in 1793, the second (drawn by Mr. Mason of Virginia, and supported by Mr. Webster, and adopted as one of the series of measures known as Mr. Clay's Compromise) in 1850.

The general purport of these Acts was to authorize in every case the claimant of an alleged fugitive to seize and remove him to the State from whence he came. Authority to remove was obtained from a Judge of a Circuit or District Court of the United States, or (under Mr. Mason's Act) from a Commissioner chosen by the claimant out of a certain number holding their appointments under the Circuit Courts. All the necessary evidence might, under that Act, be given either by depositions or by affidavit at the option of the claimant; the Commissioner's fee was 10 dollars if he granted the authority, 5 dollars if he refused it; he might issue to any person whom he thought fit a warrant for the arrest of the alleged fugitive, and the holder of the warrant was entitled to summon the posse comitatus to aid in executing it.

These provisions, which appear plainly designed to make slave-catching in the Free States a business profitable to petty officials and such private persons as chose to engage in it, had at first the effect intended; but in achieving their ulterior object, in rendering an obnoxious law independent of that support which all laws derive from public sentiment and enabling it to make head against an adverse current of opinion, they failed, as it was inevitable that they should. Their very rigour, and the tragical incidents which sometimes attended the execution by peace-officers of what a Judge of the Supreme Court' did not scruple to call 1 Mr. Justice Grier. Greeley's American Conflict, p. 217.

"a most dangerous and disgusting duty," exasperated Chap. I. popular feeling against the law itself, and helped to defeat its purpose. But for this the Federal Government was not to blame. A law which the bulk of the community believe to be immoral and detest as inhuman can be enforced by nothing short of despotic and overwhelming power; and this is eminently true where, as in the case of slave-catching, the detection, pursuit, seizure, and removal of the runaway-in a word, the whole process from beginning to end-is liable to be thwarted in a hundred ways without open resistance. These obstacles were augmented, indeed, in many of the Free States by State enactments, framed to make the execution of the Act as difficult and troublesome as possible, and to deter persons from taking part in it— enactments which were commonly and justly regarded as unconstitutional. The real loss, however, sustained by the Slave States from these causes does not appear to have been considerable; and of this but little was probably due to the action of the State Legislatures, none to the Federal Congress. All that the latter could do, and more than it ought to have done, it did.o

1 There is a summary of these laws in the American Annual Cyclopædia for 1861, under the heading "Personal Liberty Laws."

2 During the discussions of the "Peace Conference" in 1861, the present Chief Justice of the Supreme Court spoke as follows on this subject (February 26th):

"Aside from the Territorial question-the question of Slavery outside of Slave States-I know of but one serious difficulty. I refer to the question concerning fugitives from service. The clause in the Constitution concerning this class of persons is regarded by almost all men, North and South, as a stipulation for the surrender to their masters of slaves escaping into Free States. The people of the Free States, however, who believe that slave-holding is wrong, cannot and will not aid in reclamation, and the stipulation becomes therefore a dead letter. You complain of bad faith; and the complaint is retorted by denunciations of the cruelty which would drag back to bondage the poor slave who has escaped from it. You, thinking slavery right, claim the fulfilment of the stipulation; we, thinking slavery wrong, cannot fulfil the stipulation without consciousness of participation in wrong. Here is a real diffi

Chap. I.

III. On the score of the Tariff the South had two complaints to urge, which should be kept distinct from one another. The Congress of the United States is by the Constitution prohibited from imposing export duties, but it has authority to tax imports, provided the taxation be uniform and no preference be given by any regulation of commerce or revenue to the ports of one

culty; but it seems to me not insuperable. It will not do for us to say to you, in justification of non-performance, The stipulation is immoral, and therefore we cannot execute it;' for you deny the immorality, and we cannot assume to judge for you. On the other hand, you ought not to exact from us the literal performance of the stipulation when you know that we cannot perform it without conscious culpability. A true solution of the difficulty seems to be attainable by regarding it as a simple case where a contract, from changed circumstances, cannot be fulfilled exactly as made. A court of equity in such a case decrees execution as near as may be. It requires the party who cannot perform to make a compensation for non-performance. Why cannot the same principle be applied to the rendition of fugitives from service? We cannot surrender-but we can compensate. Why not, then, avoid all difficulties on all sides, and show respectively good faith and good will, by providing and accepting compensation where masters reclaim escaping servants and prove their right of reclamation under the Constitution? Instead of a judgment for rendition, let there be a judgment for compensation, determined by the true value of the services, and let the same judgment assure freedom to the fugitive. The cost to the National Treasury would be as nothing in comparison with the evils of discord and strife. All parties would be gainers."-Chittenden's Debates and Proceedings of the Peace Conference, p. 430.

On the amount of the loss suffered by escapes the following passage occurs in the Introduction to the American Census Returns of 1860:

"The number of slaves who escaped from their masters in 1860 is not only much less in proportion than in 1850, but greatly reduced numerically. The greatest increase of escapes appears to have occurred in Mississippi, Missouri, and Virginia, while the decrease is most marked in Delaware, Georgia, Louisiana, Maryland, and Tennessee.

"That the complaint of insecurity to slave property by the escape of this class of persons into the Free States, and their recovery impeded, whereby its value has been lessened, is the result of misapprehension, is evident not only from the small number who have been lost to their owners, but from the fact that up to the present time the number of escapes has been gradually diminishing to such an extent that the whole annual loss to the Southern States, from this cause, bears less proportion

State over those of another. It had been the uniform practice, in exercise of this power, to raise by import duties nearly the whole (I believe, about seven-eighths) of the supplies necessary for the public expenditure of the Union, leaving the State Governments to provide for their public expenditure by direct taxation. This practice, it was alleged, was disadvantageous not so much

to the amount of capital involved, than the daily variations which in ordinary times occur in the fluctuations of State or Government securities in the city of New York alone.

"From the tables annexed, it appears that while there escaped from their masters 1,011 slaves in 1850, or one in each 3,165 held in bondage (being about th of 1 per cent), during the census year ending June 1, 1860, out of 3,949,557 slaves, there escaped only 803, being 1 to about 5,000, or at the rate of th of 1 per cent. Small and inconsiderable as this number appears, it is not pretended that all missing in the Border States, much less any considerable number escaping from their owners in the more Southern regions, escaped into the Free States; and when we consider that, in the Border States, not 500 escaped out of more than 1,000,000 slaves in 1860, while near 600 escaped in 1850 out of 910,000, and that at the two periods near 800 are reported to have escaped from the more Southern slave-holding States, the fact becomes evident that the escape of this class of persons, while rapidly decreasing in ratio in the Border Slave States, occurs independent of proximity to a free population, being, in the nature of things, incident to the relation of master and slave.

"It will scarcely be alleged that these returns are not reliable, being, as they are, made by the persons directly interested, who would be no more likely to err in the number lost than in those retained. Fortunately, however, other means exist of proving the correctness of the results ascertained, by noting the increase of the free coloured population, which, with all its artificial accretions, is proven by the census to be less than 13 per cent. in the last ten years in the Free States, whereas the slaves have increased 23 per cent., presenting a natural augmentation altogether conclusive against much loss by escapes; the natural increase being equal to that of the most favoured nations, irrespective of immigration, and greater than that of any country in Europe for the same period, and this in spite of the 20,000 manumissions which are believed to have occurred in the past ten years. An additional evidence of the slave population having been attended from year to year, up to the present time, with fewer vicissitudes, is further furnished by the fact that the free coloured population, which from 1820 to 1830 increased at the rate of 36 per cent., in 1840 exhibited but 204 per cent. increase, gradually declining to 1860, when the increase throughout the United States was but 1 per cent. per annum."

Chap. I.

Chap. I.

to the consumer of the imported goods as to the producer of the exports which paid for them. These consisted chiefly of raw products, while the imports were chiefly manufactured goods; and of the former the great bulk had until recently come from the South, the official returns for 1840 giving to the South in round numbers 78,000,000 dollars (of which more than 61,000,000 dollars represented raw cotton), to the West 18,000,000 dollars, and to the East somewhat less than 5,400,000 dollars.1 Immigration, the extension of the Western railways, with the abolition of protective duties in England, and the generally increased demand for food in Europe, had indeed, within the twenty years ensuing, tripled the exports from the West: they stood in 1860 at 61,000,000 dollars in round numbers, and those of the East at 26,000,000 dollars, but the South exported in that year not less than 229,000,000 dollars. The South then, it was urged, in this way alone paid more than her share of the general charges of the Union. But the tariff, it was added-and on this the chief stress was laid-had been made to serve, not only for revenue, but for protection; and the Southerners complained, with justice, that they were compelled to pay higher prices for all the things they wanted most, in order that the mill-owners and iron-masters of the Northern and Middle States might be enabled to manufacture goods at a profit. To this it was answered, as it has often been answered elsewhere, that the encouragement of native industry was for the benefit of the whole nation, and that those who had to pay for it ought to resign themselves to the sacrifice. The controversy is one with which we are familiar, and it had in America no special character beyond what it owed to its connection with the slavery question, to the peculiar structure of the Union, and the local distribution of the great branches of industry.

1 American Annual Cyclopædia for 1861, p. 100.