The Fugitive Slave Act of 1850 and Jury Trials: Lincoln implicitly rejects a proslavery talking point

Abraham Lincoln, in his First Inaugural Address, said he considered it his duty to enforce the fugitives-from-service provision of the Constitution by seeing that slaves who fled from their masters would be sent back South. Lincoln added: “In any law upon this subject ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not in any case surrendered as a slave?” In that political context, the audience would recognize jury trials as one of the aspects of civilized jurisprudence to which the new President was referring. This right was not protected under the Fugitive Slave Act passed eleven years previously, and attempts to assure the Northern public that jury trials were secure by slave-state law had been unpersuasive, although eloquently argued.

Back in 1850, when a new Fugitive Slave Act was passed as part of the compromise package of that year, many Northerners believed that no fugitive slaves at all should be sent back to bondage. Other Northerners, anticipating Lincoln, took a weaker position, reconciling themselves to the return of “real” slaves but worried that the 1850 enactment could condemn black people to slavery after an unfair hearing when they were free even by slave-state standards. One worrisome aspect of this subject was the lack of a jury trial for the alleged fugitive. Juries were a traditional common-law protection against wrongful conviction, and were guaranteed, one might think, by the Constitution.

Some Northern Congressmen proposed amendments to guarantee an alleged fugitive a jury trial in the Northern state in which he was captured. Southerners feared that Northern jurors would vote to free any fugitive who came before them, so they rejected any proposal for Northern juries.[1] Instead, they supported a summary hearing by a federal commissioner in the North, sitting without a jury, and it was this harsher provision which was ultimately included in the bill.

To make the summary procedure easier to swallow, a committee headed by Henry Clay, “[i]n deference to the feelings and prejudices which prevail in the non-slaveholding states,” proposed to secure jury trials for alleged fugitives even after they had been sent South. These trials would be in the slave state from which the black person had supposedly fled. Under the Clay proposal, before an alleged black slave could be sent South, the putative master would have to give a $1,000 bond (about $40,000 today) that he would have the issue of the person’s freedom decided by a slave-state jury. Mississippi Senator Jefferson Davis called Clay’s proposal a violation of states’ rights, but Davis insisted at the same time that alleged slaves could have a jury trial in a slave state without prompting by federal law: “The right of jury trial, if there is any question as to the freedom of the party, exists in every slaveholding state. They can appeal to it under the laws of the State. But I, for one, would not consent that Congress should dictate to any state what its laws shall be.” Ultimately, references to jury trials were stripped from the final version of the Fugitive Slave Act, but the Act’s supporters kept giving assurances to Northerners that slave states would fill this gap by providing jury trials in freedom suits filed by returned fugitives.[2]

James Buchanan, Presidential aspirant and future President, wrote in late 1850 to defend the Fugitive Slave Act. Buchanan assured his readers: “When [the fugitive] returns to the state from which he has escaped, he is there entitled to a trial by jury, for the purpose of deciding whether he is a freeman. I believe every slave state has made provision by law for such a trial without expense, upon the petition of the slave; and we have heard it announced from the highest authority in the Senate of the United States, that such trials are always conducted in mercy, and with a rigid regard for the rights of the slave.”[3]

New York lawyer James A. Dorr wrote a pamphlet in defense of the Fugitive Slave measure in which he said: “It is provided by the laws of the Southern States that persons held as slaves claiming to be freemen shall be entitled to trial of the fact by jury. This is the case , I believe, in each and all of the slaveholding States; and if we may rely upon the numerous decisions given by Southern Courts under those laws, they are faithfully and fairly administered.”[4]

Catholic intellectual and editor Orestes Brownson, from his headquarters in antislavery Boston, wrote in the October 1854 issue of his journal, Brownson’s Quarterly Review, that “the alleged slave has the benefit of a jury secured to him” in “the state from which the alleged master and alleged fugitive come.”[5]

The resonance of the jury-trial issue in the North is shown by the Northern states which attempted – not necessarily successfully – to guarantee jury trials to alleged fugitives in their various Personal Liberty Laws.[6]

All these discussions of jury trials seemed to indicate that there was a bloc of undecided white voters in the North who might be willing to reconcile themselves to the Fugitive Slave Act if they could be assured that the ancient right of trial by jury would be left intact. The constant assurances by the Act’s supporters, that jury trial was preserved in the South, seemed designed to appease these fence-sitters.

In reality, however, legal and practical difficulties awaited a southern black person, held as a slave, if he tried to get his claims for freedom in front of a jury.

There was of course the difficulty of getting away from a plantation to reach the county seat where the courthouse was located. Solomon Northrup, who had a slam-dunk case for freedom since he was a free black man kidnapped from the North, famously had to wait twelve years before he could get his case in front of a judge to get himself released from a Louisiana plantation.[7]

Then there was the difficulty of finding a lawyer willing to brave public opinion to represent a freedom claimant – usually without charge, since the claimant wouldn’t have money for a fee unless he won his case in a state permitting damages against a wrongful enslaver. Depending on the jurisdiction, the lawyer might have to pay the expenses of an unsuccessful suit, another deterrent to representation.[8]

In many states, getting a lawyer was only the first step toward getting a case in front of a jury. Some states required another white sponsor in addition to a lawyer – a “next friend” who vouched for the claimant and whose consent was necessary for the case to go forward.[9]

Sometimes the slave had to post bond, a sum rarely available to someone held in slavery, meaning that, once more, some white sponsor would have to put up the money.[10]

And in some states, before a freedom claimant could get a case before a jury, the judge had to review the case to see if there was what we might call probable cause – if not, the case was dismissed.[11]

Once a jury assembled, the claimant, if black, would be presumed a slave and would have to prove his freedom. This often meant introducing evidence of his free ancestry, which got the claimant into the tangles of the rules about hearsay testimony.[12]

An example of how the system worked out in practice – not in a fugitive case but in a case of alleged emancipation by the master – is shown in the litigation by the servants of James Doran. Doran was perhaps the first white settler to build a home in Jackson County, which is in the northernmost part of Alabama, and he resided in the area that came to be called Doran’s Cove. Doran wanted to emancipate certain servants of his, held as slaves, to take effect after he and his wife died. Alabama slave owners were forbidden by the state constitution from freeing their slaves unless they got the approval of the state legislature, which in turn had to provide that the freed slaves not become a public charge.[13]

In separate enactments in 1832 and 1833, the Alabama legislature authorized Doran to emancipate slaves named Sally, Anna, Jack, Catsy, Davy, Emeline, Eliza, Jane, Nancy, Amanda, Jerry, Polly, Jim and Esther. The condition of the emancipation was that Doran put 640 acres of land in trust for the benefit of the slaves. Doran tried to make a will providing that if he died before his wife, and the named servants gave his widow faithful service, then on the widow’s death the servants would get their freedom and with it, the 640 acres. James Doran died in 1840, after which Sally and the others served the widow for eleven years. At the widow’s death in 1851, the servants didn’t get their freedom or land, but were kept in slavery by the Doran estate, and transported to next door Franklin County, Tennessee.[14]

There, the enslaved and disappointed laborers were somehow able to find a helpful lawyer. Arthur S. Colyar was a prominent man in the county, active in civic affairs. He would later serve in the Confederate Congress. After the war, he would move to Nashville and remain active in law and politics. He would become an editor, and would found the Tennessee Coal and Iron Company. Why he took the Doran slave case back in 1852 isn’t known, though some valuable real estate might come into his clients’ hands if they won.[15]

The Doran estate argued in the Tennessee Supreme Court that the alleged slaves had no right to sue, on the grounds that they needed a white sponsor besides just their lawyer – a “next friend” prepared to be liable for the costs of the proceeding. Colyar argued forcefully against this idea. He said his clients “are free persons in duress, wrongfully held in bondage….Shall the complainants remain in perpetual bondage without any fault of their own?” What white man would financially stick his neck out, in a proslavery community, even for meritorious freedom claimants? Requiring a next friend would deny judicial relief to most of the “hundreds of the African race who are wrongfully held in slavery after their emancipation.”[16]

Colyar and his clients lost. The Tennessee high court joined with many other Southern states in requiring freedom claimants to have a “next friend” to risk the expenses of litigation. So, although the former Doran slaves had a lawyer to press their claim, they couldn’t get to a jury because of the lack of a white “next friend.” Six years later, they finally found a “next friend” in Alabama and took their case to the Alabama high court, but lost again because James Doran’s estate paperwork was technically defective.[17] Doran’s former bondspeople, those who had survived, would have to wait for the war to liberate them.

By the time of Lincoln’s First Inaugural, the new President had rejected, if he ever believed, the idea that jury trials for fugitives were guaranteed in the South. Had there been no war, Lincoln may have gotten a jury-trial amendment to the Fugitive Slave Act, but as it turns out, the war would solve the slave issue and the fugitive-slave issue together.

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Sources:

[1] Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860 (Chapel Hill: University of North Carolina Press, 1970), pp. 18-23.

[2] The Congressional Globe, May 8, 1850, pp. 946, 948; “Value of $1,000 from 1850 to 2023,” https://www.in2013dollars.com/us/inflation/1850?amount=1000; Campbell, 19-20; The Washington Union, August 22, 1850, p. 2.

[3] Lancaster Intelligencer, December 3, 1850, p. 1.

[4] James A. Dorr, “Objections to the Act of Congress Commonly called the Fugitive Slave Law Answered,” New York (no publisher given), 1850, p. 10.

[5] “Sumner on Fugitive Slaves,” 39-53, at 47, reprinted in Orestes Brownson (Henry F. Brownson, ed.), The Works of Orestes A. Brownson, Volume XVII (Detroit, Thorndike Nourse, 1885). See also Max Longley, For the Union and the Catholic Church: Four Converts in the Civil War (Jefferson, NC: McFarland, 2015), p. 97. Interestingly, antislavery New Hampshire Senator John P. Hale, during the debate on the Fugitive Slave Act, agreed that freedom claimants had the right to a jury trial in Southern state courts. Hale insisted, however – unsuccessfully – that the claimant should have a jury trial in the North, too. The Daily Republic (Washington, D. C.), March 15, 1850, p. 2.

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

[7] Solomon Northrup, Twelve Years a Slave (Henry Louis Gates, Jr., ed.), (New York: Penguin, 2013), 6, 23-26, 32, 34, 43-44, 57-58, 120-21, 151-55, 164, 180-84, 188-89, 194-201, 208, 210, 214-15, 219-29.

[8] Andrew Fede, Roadblocks to Freedom: Slavery and Manumission in the United States South (New Orleans, Quid Pro Books, 2011), 146, 147, 149.

[9] Fede, 139-40.

[10] Fede, 145-47.

[11] Fede, 144, 146-47.

[12] Fede, 249, 253.

[13] Alabama Constitution of 1819, Article VI (General Provisions) Slaves (subdivision), Sec. 1, Avalon Project, Yale Law School, https://avalon.law.yale.edu/19th_century/ala1819.asp; “Scenes from Bridgeport and Doran’s Cove: Tiny Jackson County communities rich in history,” January 6, 2015, https://www.al.com/living/2015/01/scenes_from_bridgeport_and_dor.html.

[14] “An Act to authorize James Doran to emancipate certain Slaves therein named,” January 20, 1832, in Alabama Legislative Acts, 1831-1832, p. 98; “Supplemental to an Act” [etc.], January 5, 1833, in Alabama legislative acts, 1832-1833, p. 90; Doran v. Brazelton, 32 Tenn. 149, 152-53 (1852); Jack, et. al, slaves, v. Doran’s Executors, 37 Ala. 265, 266-67 (1861).

[15] John Allison (ed.), Notable Men of Tennessee, Vol. I (Atlanta: Southern Historical Association, 1905), 64-65; Winchester Home Journal, August 8, 1858, p. 2 (Colyar involved in the founding of a female academy), Winchester Home Journal, February 6, 1858, p. 2 (Colyar is on a committee seeking (successfully) to have the University of the University of the South located in Franklin County, dismissing reports of milk sickness in the area); “Founded Tennessee Coal and Iron Co.,” Fuel, Vol. X, No. 8 (December 24, 1907), 233-37.

[16] Doran v. Brazelton, at 150-51.

[17] Doran v. Brazelton, Jack v. Executors.