Lincoln, Douglass, Fugitive Slave Law, and Constitutional Evil

Robinson Woodward-Burns

Several sections of the antebellum Constitution addressed slavery. Perhaps most contentious was the Fugitive Slave Clause, requiring that fugitive slaves “shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” This Clause never specified whether federal, state, or private actors could recapture fugitives, spurring enforcement disputes. Congress’ 1793 Fugitive Slave Act (“1793 Act”) charged recapture to private agents rather than to state officials, who, in the North, shielded fugitives from return. Heartened by resistance in Massachusetts, Ralph Waldo Emerson held “[t]here was a fugitive law, but it had become or was fast becoming, a dead letter; and, by the genius and laws of Massachusetts inoperative.” In response, Congress’ 1850 Fugitive Slave Act (“1850 Act”) empowered federal marshals and commissioners to rally private citizens as a posse comitatus to summarily capture, put on trial, and return fugitives, while noncompliant bystanders faced a $1,000 fine and half year in prison. As Emerson concluded, “[t]he new Bill made [the 1793 Act] operative; required me to hunt slaves; and it found citizens in Massachusetts willing to act as judges and captors.” Northern legislatures answered by expanding fugitives’ habeas and jury trial rights under “personal liberty” laws, and citing these laws, free state citizens and officials challenged their obligation to the Constitution’s Fugitive Slave Clause. As Emerson concluded, “[a]n immoral law makes it a man’s duty to break it.”

Constitutions, framed through compromise, bind subjects to compromised, unjust provisions. The problem of constitutional evil, per Mark Graber, arises when subjects are asked to obey unjust practices not clearly authorized by constitutional text or history. The Fugitive Slave Acts present such a problem. The Fugitive Slave Clause, drafted as a concession to Southern convention delegates, endorsed the return of fugitive slaves, a moral evil. But the Clause did not clearly authorize the 1793 or 1850 Act’s enforcement provisions, at least according to antislavery Northern thinkers.

Chief among these thinkers were Abraham Lincoln and Frederick Douglass, the latter a former fugitive from slavery. Lincoln and Douglass disagreed on whether the Clause and 1850 Act bound Northern citizens and officeholders. Douglass’s narrow reading of the Clause and broad reading of natural law authorized citizen resistance to the 1850 Act. This Essay details his views in Part I. Part II notes how Lincoln believed lawmakers were oath-bound to the Clause and to slaveholders’ morally unjust but constitutional right to recapture fugitives under the 1850 Act. Lincoln felt his duty to the Constitution overrode the dictates of natural law, at least until the Civil War let him bend the Constitution to conform to natural law. Part III concludes by noting both Lincoln and Douglass saw that the framers intended the Clause to authorize recapture. Douglass as an essayist and orator hewed to the natural law against the 1850 Act, while Lincoln as a congressman and executive understood himself oath-bound to the positive law under the 1850 Act. This Essay considers Douglass and Lincoln on the 1850 Act, taking them as “representative men,” per Emerson’s term, who confronted the fundamental constitutional problem of the 1850s.