Habeas Corpus, the Fugitive Slave Law, and Executive Authority

Last month, President Donald Trump issued an executive order prohibiting the entry of refugees or visa holders from seven Middle Eastern nations. It went into effect while some foreign nationals were in transit, thus they arrived in a different America than the one they had expected. Among these were two Iraqis, detained at Kennedy Airport on January 27, 2017. Their lawyers filed writs of habeas corpus the following morning, hoping to have their clients released.[1] They were not alone. According to the director of the International Refugee Assistance Project, Becca Heller, “we’ve gotten reports of people being detained all over the country…. They’re literally pouring in by the minute.”[2] For many Americans this executive order has raised questions about the role of executive power in a political system that reveres checks and balances, how this will affect refugees from war torn regions, and about our nation’s core identity as a country of immigrants.

Although our twenty-first century context is much different, the implementation of habeas corpus to rescue a detainee from state or federal custody harkens back to the enslaved people detained under the Fugitive Slave Law of 1850. This law was intended to protect slaveholders’ property interests and reinforce a pro-slavery interpretation of the U.S. Constitution. It mandated that in fugitive slave cases where the alleged fugitive was taken into custody in a free state, normal judicial processes were not in force—there was no opportunity for appeal, no jury was present, the alleged owner (i.e. “slave claimant”) was not required to have a warrant, and the appointed slave commissioner had significant leeway in determining what constituted adequate evidence of enslavement. Even more controversially, the act stated that the commissioner was entitled to a ten-dollar fee if he found for the claimant, and only a five-dollar fee if he found for the alleged fugitive. It was a system that encouraged corruption.[3]

Like President Trump’s executive order, the Fugitive Slave Law unleashed a torrent of controversy. Blacks across the nation, whether free or enslaved, knew that this legislation would make it more difficult for fugitives to remain safe in the North, and it would also make it easier for kidnappers to abduct free Northern blacks and sell them into slavery. Proslavery Americans were ecstatic about its passage, since it marshaled the power of the federal government to protect slaveholders’ property rights. Many white Northerners were appalled by the fact that what they believed to be normal judicial processes could simply be swept away. Lewis Tappan noted that “the heart of every antislavery individual will deeply sympathize with the panting fugitive…. In every way in which it can be viewed, it is a disgrace to the nation, an act of extreme cruelty, and can be viewed as an experiment on the part of the Slave Power to see how much the Free States will bear.”[4] In Massachusetts, a group of citizens stated that “the foundations of our government are shaken, and unless the work of destruction shall be stayed, we may soon see that great union, our honor and safety abroad and at home, broken into weak, discordant and shattered fragments.”[5] Much like recent conversations about executive authority, and our obligation to refugees and legal immigrants, the Fugitive Slave Law had a polarizing effect on political discourse.

Although the use of habeas corpus has evolved over the past 160 years, it remains an example of our shared conviction that all persons are born free and cannot be deprived of that freedom without due process. Then, as now, a writ of habeas corpus was used to uncover why a person was being restrained or incarcerated; in the antebellum period, “upon the presentation of a prima facie case for issuing the writ, it would be directed to the person detaining another, commanding him to bring the person detained before the judge and to state the reasons for depriving him of his freedom.”[6] Counsel could request a writ, but it was issued by a judge who directed it to the state official responsible for the alleged fugitive’s arrest. Due process is a right enshrined in the 5^th Amendment to the U.S. Constitution, and habeas corpus was one mechanism for protecting this right.

In the antebellum South, however, there was no presumption that all persons were born free, and indeed African Americans were presumed to be slaves unless they could prove otherwise. Northern states, however, began to pass personal liberty laws in the early nineteenth century as a way to prevent the kidnapping of free blacks. No federal anti-kidnapping law existed, so this power remained with the states. Personal liberty laws became even more significant after 1850. For instance, in 1855 the Massachusetts legislature passed a stringent personal liberty law that not only guaranteed the alleged fugitive a writ of habeas corpus and the right to a jury trial, but also promised serious punishment for anyone who took into custody a free person. The slave claimant could not seek counsel from local citizens. Although the Fugitive Slave Law allowed a mere affidavit by the claimant, at the commissioner’s discretion, this state law went further to require “at least two credible witnesses.”[7] Its passage initiated a prolonged struggle in the Massachusetts statehouse between conservatives and moderates, each jockeying for power to either repeal the law altogether or amend it to ease the burden on slaveholders. In March 1858 the law was amended, but the right to the writ remained.[8]

Similar situations played out in other Northern states, particularly in New England and the mid-Atlantic, which saw a number of high profile fugitive slave cases during the 1850s, and some prior to the new law’s passage, such as the Supreme Court case Prigg v. Pennsylvania (1842).[9] There are also less well-known cases where a writ was applied, such as that of Archy Lee in San Francisco in 1858 and Charley Fisher in Kansas in 1859.[10] The courts were caught between the property rights of slaveholders and a guarantee of due process for those who might be legally free. Antislavery resistance to an unjust law came, in these situations, through legal means.

Before the Civil War, states could issue writs to rescue fugitives from federal custody, and national courts could not intervene at the state level.[11] This was, much to the chagrin of white Southerners, a states’ rights argument that contravened slavery instead of supporting the peculiar institution (the irony of this should not be lost on us today). From the antislavery perspective, free states should be able “to legislate on this subject for the preservation of their own peace and the protection of their own soil from insult and aggression,” to quote two attorneys who argued the Prigg v. Pennsylvania case.[12] This contest between federal and state power continued in other fugitive cases, including the prominent case of Joshua Glover in Wisconsin, where the territorial Supreme Court ignored a writ of error from the U.S. Supreme Court and even ruled that the Fugitive Slave Law was unconstitutional. Their decision was overturned in Ableman v. Booth (1859), when Chief Justice Roger Taney asserted that state courts did not have authority over federal courts.[13] States may have had the right to protect their citizens, but Congress and the Supreme Court also had responsibilities to slaveholders. Therein lay the rub.

The world of the 1850s is strikingly different from the world of 2017. Today we face challenges that would be unfamiliar to antebellum Americans who did not experience the 9/11 terrorist attack, nor had they seen their nation survive a civil war and two world wars. The current administration’s immigration restrictions are predicated on the argument that they will protect us from terrorism, a justification decidedly unlike the property-rights argument used to justify the Fugitive Slave Law. Still, both then and now, those seeking to help detainees turned first to habeas corpus. Today we ask ourselves many of the same questions our nineteenth-century counterparts did. What are the limits of federal power? How freely should we accept immigrants and refugees, whether they be escaping slavery, or escaping war and persecution? What do we owe our allegiance to, human law or a higher law? Americans do not agree on the answers to these questions, nor did they in the 1850s. There is no doubt that the judicial system—and its defense of the Constitution—will play a central role in shaping the outcome.

 

[1] Brooke Seipel, “Refugees Detailed at US Airports After Trump Exec Order,” The Hill, accessed January 28, 2017, http://thehill.com/blogs/blog-briefing-room/news/316656-refugees-detained-at-us-airports-following-refugee-ban. This writ is available on Scribd, accessed January 29, 2017, https://www.scribd.com/document/337777796/1-Complaint?content=10079&campaign=Skimbit%2C+Ltd.&ad_group=&keyword=ft500noi&source=impactradius&medium=affiliate&irgwc=1.

[2] Michael D. Shear and Nicholas Kulish, “Trump’s Order Blocks Immigrants at Airports, Stoking Fear Around Globe,” The New York Times, January 28, 2017, accessed January 28, 2017, https://www.nytimes.com/2017/01/28/us/refugees-detained-at-us-airports-prompting-legal-challenges-to-trumps-immigration-order.html?smid=tw-share.

[3] “Fugitive Slave Act of 1850,” The Avalon Project: Documents in Law, History and Diplomacy, accessed April 20, 2016, http://avalon.law.yale.edu/19th_century/fugitive.asp.

[4] Lewis Tappan, The Fugitive Slave Bill: Its History and Unconstitutionality; With an Account of the Seizure and Enslavement of James Hamlet, and His Subsequent Restoration to Liberty (New York: William Harned, 1850), preface, Library of Congress, accessed February 11, 2017, https://www.loc.gov/resource/llst.076.

[5] To the Citizens of Massachusetts; The Undersigned Are Moved by an Imperative Sense of Duty to Address their fellow-citizens of the State of Massachusetts, Concerning the Portentous Condition of Our Public Affairs (1850), 1, Library of Congress, accessed February 11, 2017, https://www.loc.gov/resource/rbpe.06501000/.

[6] Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780-1861 (Baltimore: The Johns Hopkins University Press, 1974), 9.

[7] Mark Voss-Hubbard, “The Political Culture of Emancipation: Morality, Politics, and the State in Garrisonian Abolitionism, 1853-1863,” Journal of American Studies 29 (August 1995): 172.

[8] Voss-Hubbard, 173.

[9] Prigg v. Pennsylvania 41 U.S. 539 (1842), accessed February 8, 2017, https://supreme.justia.com/cases/federal/us/41/539/case.html.

[10] Samuel May, The Fugitive Slave Law and Its Victims (New York: American Anti-Slavery Society, 1861), 97-98, 111-112. See also the author’s forthcoming article in Kansas History for more on Charley Fisher’s story.

[11] Morris, 10.

[12] Morris, 95.

[13] Earl Maltz, “Slavery, Federalism, and the Constitution: Ableman v. Booth and the Struggle over Fugitive Slaves,” Cleveland State Law Review 83 (2008): 92.