The long-term effects of the passage of the Fugitive Slave Act (1793) shows yet another facet of the law’s exceptionally problematic nature. As discussed above, enforcement of the cited non-interference clauses would have been challenging enough even if the legislation in question had been left to operate in a vacuum. But the United States of America presented no such thing. In addition to have barred slavery entirely on their own initiative, many states in the north of the American republic began passing legislation in response to the Fugitive Slave Act over the course of the 19th century specifically for the purpose of frustrating its effectiveness. As the Act made no mention of allowing those accused of being fugitive slaves to petition for a formal jury trial, for example – stating instead that the accuser need only present “oral testimony or affidavit” to a duly certified judge or magistrate – states like Indiana and Connecticut adopted laws to that exact effect over the course of the late 1820s. Similar statutes were passed in Vermont and New York in the early 1840s, with both states going so far as to provide lawyers for the accused. And in 1826, Pennsylvania went to the length of decreeing by way of legislation that,
If any person or persons shall, from
and after the passing of this act, by force and violence, take and carry away,
or cause to be taken or carried away, and shall, by fraud or false pretense,
seduce, or cause to be seduced, or shall attempt so to take, carry away or
seduce, any negro or mulatto, from any part or parts of this commonwealth,
to any other place or places whatsoever, out of this commonwealth, with a
design and intention of selling and disposing of, or of causing to be sold, or
of keeping and detaining, or of causing to be kept and detained, such negro or
mulatto, as a slave or servant for life, or for any term whatsoever, every such
person or persons, his or their aiders or abettors, shall on conviction
thereof, in any court of this commonwealth having competent jurisdiction, be
deemed guilty of a felony.
In part, these laws were intended to
protect the free black populations of the relevant states from being captured
and enslaved on the basis of one-sided testimony. A jury trial would allow for
a more thorough discovery of the facts, permit the accused to speak in their
own defense, and serve generally to prevent free people of color from being
treated like anything less than American citizens. Such statutes naturally also
succeeded in frustrating the work of slave catchers whose quarry really were
fugitives by requiring them to prove to the satisfaction of a jury that the
target of their search was indeed legally enslaved. That this latter outcome
was seen as a desirable one by at least some state legislators during this era
is amply borne out by the text of the Pennsylvania statute cited above. Granted,
few of Pennsylvania’s sister states were willing to go quite so far in offering
protection to those who wished to escape from bondage, but the relative
ubiquity of these so-called “personal liberty laws” would seem to be proof
enough that the concepts of “lawful” and “unlawful” are not necessarily
synonymous with those of “right” and “wrong.” Which comparison naturally brings
things full circle back to 1838, Abraham Lincoln, and his formula for the
perpetuation of America’s political institutions.
Lincoln’s intention, recall, was to
counteract the rise in vigilante activity then sweeping across the American
states – a trend which he believed augured the disintegration of the American
republic – by elevating strict observance of the law to something on the order
of a sacred duty. Neither the threat of Britain nor the example of the
Founders, he avowed, could any longer dissuade people from acting strictly out
of self-interest, and so it fell to some other principle to promote public
service and discourage destructive personal ambition. But while “the law of the
land” seemed to fit this bill rather well – being impersonal, applying to
everyone, and existing as the product of a democratic process – even a brief
examination of the circumstances and elements involved reveals a number of
troubling implications. On the subject of slavery, for example, it wasn’t
particularly clear which laws exactly Lincoln was declaring that his audience
should religiously observe. The Fugitive Slave Act, as cited above, declared
that somebody seeking to transport an enslaved person back to their owner need
only provide proof of their claim to the relevant judicial authority in the
form of oral testimony or by swearing an affidavit. And since Article VI of the
United States Constitution – by way of the so-called “Supremacy Clause” – made
it clear that, “The Laws of the United States […] shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby [,]” these same
judicial authorities should presumably have acquiesced. But what of the state
laws discussed above? Were they of no account? What if a slave catcher insisted
that they should not have to submit to a jury trial in a state wherein the law
guaranteed a jury trial to those accused of being fugitive slaves? What should
the judicial authority to whom the claim was presented have done in such a
situation? What should the slave catcher have done? If no one present was
competent to declare a state law to be effectively nullified by the terms of
the Constitution, what was supposed to occur in an instance such as this?
Such a hypothetical situation would seem to
become stickier still if it were to take place, say, in the Commonwealth of
Pennsylvania. As aforementioned, the legislature of the Keystone State declared
in 1826 that the involuntary removal of anyone who might be construed as
currently or formerly enslaved was absolutely forbidden. What, then, was a
person to do if they were approached in Pennsylvania by the agent of a Virginia
plantation owner and told that their farmhand was in fact an escaped slave?
Federal law tells them not to obstruct the proceedings to follow. State law
tells them that the proceedings to follow are illegal. Where lies the righteous
path that Lincoln so loudly championed? In the absence of a ruling by the
United States Supreme Court, who was to say which law ought to be followed and
which ought to be tossed aside? Should the Pennsylvanian have bowed to the
primacy of federal law? Should the slave catcher have given way to the law of
the state in which they found themselves? Lincoln had made it sound as though
his solution was so simple, yet this is clearly not a situation to which the concept
of “simplicity” quite applies. “Let every American [..] swear [,]” he said,
“Never to violate in the least particular the laws of the country, and never to
tolerate their violation by others.” But what if “the laws of the country” were
working at cross purposes? What if they were designed to work at cross
purposes?
This last question gets at perhaps the most
troubling aspect yet of Mr. Lincoln’s aforementioned prescription, specifically
in terms of its relationship to the institution of slavery. His overarching
aim, recall, in recommending to his fellow citizens that they treat every law –
even those they recognize to be bad laws – with a degree of religious
observance was the ultimate preservation of the union of American states. The
normalization of mob violence which threatened to unravel the bonds of
republican government in America, he observed, came from a place of
selfishness; from individuals disregarding the validity of the law of the land
in favor of their own particular impulses or desires. The surest counter, then
– in the absence of a common enemy or a common source of inspiration – was
something that would effectively force people to be selfless. But while the law
in itself doubtless seemed like it could serve just such a purpose, the reality
was far more complex that Lincoln seemed willing to acknowledge. His belief, as
stated, was that observing the law constituted a selfless act and that bad laws
should and would be remedied by way of the proper institutional channels. In
point of fact, of course, neither of these convictions was demonstrably true. While
developing the habit of bowing to the law might in time have promoted a shared
sense of selflessness and social responsibility among the American people, the
laws to which they were leaning to bow would not always be particularly
altruistic in themselves.
The Fugitive Slave Act, for example – or,
indeed, the legal construct of slavery as a whole – was not proposed, approved,
and enforced for the benefit of the greater good. Rather, it served the
interests – almost exclusively and by design – of a particular class of
regional agriculturalists whose personal prosperity depending on the ownership
and forced exploitation of otherwise blameless human beings. And this was not a
hidden thing. Slavery was known to all and sundry as the primary economic basis
of the Southern United States, and the Fugitive Slave Act represented an
unambiguous attempt by the political elites of this region to bend the
institutions of federal power to their suit their own particular needs. Bearing
this in mind, a person living in Pennsylvania, say, or Indiana, or Connecticut who
was determined to take Lincoln’s advice to heart would inevitably be forced to
confront a potentially painful contradiction. Lincoln tells them that in order
to help preserve the American republic they need to put aside their personal
desires and simply obey the law. But at the same time, their knowledge of what
the law is and what it means must also tell them that obeying it at all times
will sometimes require them to condemn certain kinds of people to lives of
servitude, torture, and death. Being selfless, in essence, will require them to
sometimes serve the selfish desires of others. What are they to make of this?
How can they reconcile the end which Lincoln tells them they should pursue with
the consequence they know that such a pursuit might entail? To be sure, there
were bound to be millions of Americans in 1838 who would think little of
assisting in the apprehensions of those identified to them as fugitive slaves.
But those millions more who looked upon slavery with a sense of abject horror?
Who took pride in the fact that their home state had outlawed the practice?
They would be left in an impossible situation. Which must give way, their
convictions or the law?
Mr. Lincoln seemed to think that this
question was answered easily enough. Bad laws, he said, will be recognized as
such and, “Should be repealed as soon as possible [.]” To that end, “Let proper
legal provisions be made for them with the least possible delay [.]” But how
likely was this, really? Law, as aforementioned, is never really the product of
the popular will in the way that some people might like to think. The American
people don’t make American law, but rather choose those who do. And these
chosen few don’t simply carry out the stated will of their constituents, but
rather mix their understanding of what the voters want with their own desires
and intentions and then attenuate the result based on the circumstances of the
moment. Legislators belong to parties whose platforms and principles don’t
always speak all that directly to the issues confronting a given constituency,
and elections – particularly in the 19th century – are not always
the product of a thorough airing of the issues so much as they are the product
of investment by certain interests, blocs, or persons. And none of this is to
mention, of course, the extent to which political institutions and the rules
that govern them might be – or have historically been – manipulated in order to
provide a disproportionate advantage to one group or community over another.
Bearing all of this in mind, Lincoln’s belief that it was permissible to obey
bad laws because they would surely be repealed before long would seem to be
either exceptionally naïve or willfully ignorant.
Even if the majority of American voters in
1838 believed wholeheartedly that the Fugitive Slave Act should have been
repealed, it would almost certainly not have happened. The simplest reason for
this, as aforementioned, was that not everyone would have cause to agree that
the Fugitive Slave Act was a bad law. Southerners would mostly claim that it
was, Northerners would mostly claim that it wasn’t. Who was right? Well, the
Northerners, in point of fact, but that would have mattered very little in
terms of getting the thing off the books. And why was that? Because, for many
reasons, Southern slaveholders wielded a great deal of power. Slaveholders made
up the elite class of every Southern state, after all. They controlled the
county offices, the judgeships, the sheriffs’ offices, the state assemblies,
governorship, and Congressional seats. And while in large part this was due to
their economic power – agriculture being both the primary industry in which
slaves were deployed and the cornerstone of the contemporary American economy –
it was also the result of what their economic clout was able to buy them. Mind
you, this isn’t to say that the specifically Southern contributions to the
United States Constitution were the product of bribes or other such corrupt
dealings. That said, there definitely existed an understanding on the part of
delegates from Northern states that wealthy slaveholding jurisdictions like
Virginia, Maryland, and the Carolinas did rather need to be appeased. Without
the money and the prestige that these states would inevitably bring to the
whole concept of an American union, the project might have been doomed to
failure at the outset. It was accordingly for this reason that certain Southern
proposals were accepted. Northern delegates had no reason to permit
three-fifths of all slaves to be counted towards popular representation in
Congress, other than the fact that the Southern delegates demanded it. Delegates
from Northern states likewise had no cause to approve of such language as made
it legal for the deputized agents of slaveholders to legally abduct such
persons as they claimed to be property, other than that they wanted to ensure
the continued cooperation of the slaveholding South.
The result of all of this, of course, was
that by the standards of most people living in the United States right now –
and also by the standards of no small number living there in 1838 – 19th
century Americans were pretty much stuck with a whole host of very bad laws. These
laws had been approved by state legislatures, by Congress, and were even
enshrined in the Constitution, and their collective effect was to promote
suffering, exploitation, and death. And what was Abraham Lincoln’s response to
this reality? What did he tell his young and impressionable audience to do?
Obey the law, he said, and depend on something happening which is functionally
impossible to keep you from committing a morally questionable act in the
process. The Fugitive Slave Act wasn’t going to be repealed, one of the results
of which was that some people in Lincoln’s adopted home state of Illinois –
perhaps even some of those who attended his speech in Springfield – might very
likely find themselves faced with a dreadful choice. Do they obey the law and
turn over someone they are told is a fugitive slave to who knows what kind of
horrors, or do they help the accused to go free and risk the supposed
dissolution of the American republic? If Lincoln’s aim was truly to promote
selflessness and altruism among his fellow Americans, one would hope he desired
for those who took his words to heart to behave in such a manner that placed
human life and human freedom above the selfish desires of a wealthy elite. But
this, as herein discussed, was not really what he argued.
The young man from Kentucky might be
forgiven, of course, and perhaps should be. Faced with at times shocking
outbursts of popular violence – and convinced that the normalization of said
violence would at length spell the end of the United States as he knew it – his
search for some means of both explanation and solution was admirable in itself.
But while his diagnoses of what was ailing the American republic as it moved
towards the middle of the 19th century, if somewhat flawed, was not
wholly without merit, his prescription for the same was exceedingly
short-sighted. And yet, how could it not be? Having identified a problem which
seemed to cut to the very essence of what the United States had been to that
point in its history, how could he have been expected to come up with a
solution that came anywhere close to addressing the magnitude of the issue? How
was a largely self-taught young man of twenty-nine supposed to talk his way
into saving the American republic? It wasn’t a reasonable proposition in the
slightest degree, and Lincoln almost certainly should not have made the
attempt. The fact that he did, however, does tell us something about the man
and his times. Clearly, Lincoln was a conscientious person, and one who felt
some amount of responsibility towards both his fellow man and the nation of his
birth. And while his aforementioned analysis of the problem at hand was deeply
flawed in some very significant ways, the fact that he spent time and effort
attempting to remedy what he believed was the most pertinent evil of his day
speaks well of his conviction at such a young age.
For that matter, it is also very much worth
noting that Lincoln looked around at the United States of American in 1838 and
saw a nation that was in the midst of a kind of diffuse but persistent crisis.
Civil war was not necessarily in the offing – any more than it was at any point
between 1832 and 1861 – and the economy wasn’t in freefall, but there did seem
to be something about the mood of the American people which Lincoln believed
was symptomatic of something that was potentially as devastating. People were
acting selfishly, he observed, and taking the law into their own hands. They
had gotten into the habit of valuing their own desires over the needs of the
larger community and grown increasingly comfortable pursing whatever it was
they wanted to the exclusion – or to the detriment – of anyone and everyone
else. And while, in the immediate, the victims of this selfish turn were
relatively few, Lincoln believed it would only be a matter of time before
concepts like selflessness and altruism vanished entirely and the American
republic dissolved into a mass of mutually antagonistic individuals who saw no
value whatsoever in trying to promote a “common good.” He made this out to be
something of a new problem, based on his assessment of the waning influence of
the elements that to his mind had thus far contributed to a common sense of
nationhood. But in reality, it is a threat that has always lingered beneath the
surface of the American soul. How does a government “of the people” maintain
the respect of the people? Why should anyone heed institutional authority when
the basis of that authority is that all people are equal and free? There was no
way Lincoln was going to be able to answer these questions conclusively at the
tender age of twenty-nine, but it says something rather profound about the
American experience that he felt them as pressingly in 1838 as many of his
countrymen still do to this day. “The law” might not have been the conclusive
answer that Lincoln believed it to be, but at the very least he was pointing
his attention at the right things. At the very least he understood that the
American experiment in self-government was not somehow magically
self-sustaining. It needed to be tended to, constantly, or else it would surely
fail.
Or else it will surely fail.
Anyway, that’s me. Where
are you at on this one?
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