Excerpted From: Robinson Woodward Burns, Lincoln, Douglass, Fugitive Slave Law, and Constitutional Evil, 83 Maryland Law Review 281 (2023) (82 Footnotes) (Full Document)



RobinsonWoodwardBurnsSeveral 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.

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p>The Fugitive Slave Clause did not expressly empower federal, state, or private agents to recapture fugitive slaves. This recapture, unjust and not clearly authorized by constitutional text or history, presented the problem of constitutional evil. Antislavery thinkers differed on whether to read the Clause to endorse federal, state, or private recapture of fugitives. Lincoln held that he and other lawmakers were oath-bound to support the Clause and consequently the 1793 and 1850 Acts. Douglass felt the Constitution's text, largely silent on the fugitive slave question, did not authorize recapture and thus he condemned president-elect Lincoln's public “slave-catching and slave-killing pledges.” He felt Lincoln was not expressly bound to the Clause or Acts--years earlier in a Free Soil convention he explained this objection to Lincoln's approach: “[I]t has been said that this [Fugitive] law is constitutional--if it were, it would be equally the legitimate sphere of government to repeal it.” To his point, nothing in the Constitution strictly“construed according to its reading,” mandated the expansive 1850 Act or prohibited its repeal or nonenforcement. To Douglass, natural law also invalidated the framers' Fugitive Slave Clause and the 1850 Act: “It has been said that our fathers entered into a covenant for this slave-catching. ... If they made a covenant that you should do that which they have no right to do themselves, they transcended their own authority, and surely it is not binding on you.” In Douglass's view, the illegitimate Clause did not empower or bind lawmakers, Lincoln included, to provide for the recapture of fugitive slaves.

During the War, the fugitive slave matter became a question of contraband law. Douglass, a critic of Lincoln's early administration of the War, objected when Lincoln in August 1861 relieved Major-General John C. Frémont for declaring fugitive slaves emancipated contraband. Years later, Douglass held that Lincoln, “when he revoked the proclamation of emancipation of General Frémont,” showed that he “was willing to pursue, recapture, and send back the fugitive slave to his master, and to suppress a slave rising for liberty, though his guilty masters were already in arms against the Government.” In so doing, Lincoln revealed he was “preeminently the white man's President.” Similarly, in a July Fourth address in 1862, Douglass faulted Lincoln for failing to enforce the Confiscation Acts' promise of liberty to fugitives. Only the eventual enforcement of the Confiscation Acts and Emancipation Proclamation convinced Douglass that the Lincoln Administration had brought some limited “reprobation upon slave-hunting.” This “immortal paper which, though special in its language, was general in its principles and effect, making slavery forever impossible in the United States.”

Southern secession let Lincoln bring positive law closer to antislavery natural law. When Confederate slaveholders seceded, opening a period of rebellion, Lincoln could finally turn their supposed right to property in man into a tool for abolition through seizure of contraband property. To Emerson, Lincoln through the Emancipation Proclamation had finally shown willingness to interpret the Constitution flexibly: “All our action now is new & unconstitutional, & necessarily so. ... & enough to drive a strict constructionist out of his wits.” For Lincoln, as for Douglass, war allowed abrogation of the 1850 Fugitive Slave Act. Douglass in 1850 predicted abolition would come through war, quoting Jefferson: “It was the sage of the Old Dominion that said ... 'God is just, and that his justice cannot sleep forever.”’ Lincoln, in the same jeremiad tradition, concluded his second inaugural:

Yet, if God wills that it continue, until all the wealth piled by the bond-man's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord, are true and righteous altogether.”

Lincoln and Douglass differed on their obligations to do constitutional evil under the 1850 Fugitive Slave Act. This was perhaps because they held different relationships to the law. Douglass, never oath-bound to the Constitution, freely condemned the document in his essays and speeches on broad natural rights grounds. Lincoln, obligated by oath to uphold the Constitution, understood himself as bound to enforcement of the whole Constitution, Fugitive Slave Clause included--perhaps as a Unionist position early in the secession crisis--until secession and the Confiscation Acts empowered him to emancipate fugitives. Lincoln and Douglass' different positions might be reduced to their different obligations under the law.


Associate Professor of Political Science, Howard University.