The American Civil War and States’ Rights; A Critique, Part One: The Fugitive Slave Act

ECW welcomes back guest author Brian Krasielwicz

The last decade has seen a tremendous amount of social change in America.  Disruptive technologies and easily accessible platforms for communication have amplified voices that previously may have struggled to be heard over the noise of citizens participating in the great American experiment.  Some of those voices have been re-examining the Civil War.  They have been talking about the reasons it was fought, the lessons it holds for us, and the way that we memorialize and contextualize that conflict today.  The Civil War provides endless fodder for discussion and it is one of the reasons why studying the conflict can be so interesting.  However, it is important that conversations about the war and its causes are built upon a platform of facts.  A considerable amount of dialogue recently seems to be at odds with historical realties and instead posits “revisionist” ideas.  One of those ideas is that Southern governments formed the Confederacy and raised armies in an attempt to protect and defend and philosophical notion of state sovereignty.  An extensive Pew Research Survey in 2011 revealed that nearly half of self-described Southern whites considered states’ rights to be the primary cause of the Civil War.[1]  While the powers and limitations of the states were actively discussed in the 1800’s (as they still are today), it is historically inaccurate to infer that differing opinions about federalism sparked the Civil War.  Arguments about state and national power that influenced the nation’s mood only arose because of the intractable problem of slavery and America’s inability to resolve the slavery question.  Southern governments were intent on maintaining the practice of slavery and rejected any attempt by the federal government to suppress it or to prevent the practice from expanding into new territories.  While it may be true that there were Southern citizens, institutions, and political leaders who argued that state sovereignty was a political imperative, it is also true that those arguments were often made specifically to defend the practice of slavery.  In fact, the continuation of slavery was such a paramount objective that Southern states often supported policies and decisions that eroded the power of the state and increased the authority of the federal government because their enactment furthered the cause of slavery.

Tensions over slavery in America had been steadily growing since the first Fugitive Slave Act passed in 1793.  This act was established after Northern states began to outlaw slavery and Southern slaves attempted to escape and find protection within the borders of these now-liberated Northern states.  Responding to intense pressure from the South, Congress passed a law permitting slave-catchers to track and capture runaway slaves, even if they crossed the border into a free state.[2]  In effect, solely in an attempt to maintain the institution of slavery, southerners pushed Congress to move beyond the commonly accepted “federal consensus” doctrine which held that the federal government had no authority to interfere in a sovereign state’s laws governing slavery.  This “consensus” theory was so generally accepted that even fervent abolitionist organizations such as the American Anti-Slavery Society conceded that “[w]e fully and unanimously recognize the sovereignty of each State, to legislate exclusively on the subject of the Slavery which is tolerated within its limits; we concede that Congress… has no right to interfere with any of the slave States…”[3] Despite this perceived limitation, Congress passed the first Fugitive Slave Act, enabling citizens from one sovereign state to cross into a second sovereign state and confiscate slaves hiding there, even if doing so violated the written laws of the state of residence.[4]  Yet, while this was a departure from existing legislative philosophy, there was no real increase in federal power.  The act provided legal justification for a slave owner to cross state lines and bring back escaped slaves but there was no enforceable mandate requiring citizens or government officials to participate in the process and there were no consequences for inaction.

As the Underground Railroad developed and as northern abolitionists proactively sought to not only impede fugitive slave confiscation, but also to hide and shelter them, slave holding states demanded that the federal government protect their property interests.[5]  When the territory of California petitioned the federal government to be admitted to the Union as a free state in 1849, Southern politicians balked at the idea and blocked the original Senate bill to establish statehood.[6]  Their objection was entirely based on California’s prohibition of slavery.  Seeking to keep the peace between hardened political interests in both the North and the South, Kentucky Senator Henry Clay stepped into the breach and devised the Compromise of 1850.  Among other things, the compromise acceded to California’s petition for statehood and abolished slavery in the District of Columbia.  In exchange for Southern approval of these initiatives (both of which were very unpopular in slave-holding states), Clay included an aggressive new fugitive slave law in the package, something Southern lawmakers fervently demanded.[7]

Speaking before the Senate chamber on March 4, 1850, South Carolina Senator John C. Calhoun summarized the position of slave-holding states.  He announced that the south “asks for justice, simple justice, and less she ought not to take… But can this be done?  Yes, easily… The North has only to will it to accomplish it—to do justice by conceding to the South an equal right in the acquired territory, and to do her duty by causing the stipulations relative to fugitive slaves to be faithfully fulfilled—to cease the agitation of the slave question, and to provide for the insertion of a provision in the Constitution by an amendment, which will restore to the South, in substance, the power she possessed of protecting herself… There will be no difficulty in devising such a provision—one that will protect the South, and which at the same time will improve and strengthen the government instead of impairing and weakening it.”[8]  In other words, Calhoun felt that one of the only ways to prevent the increasingly likely chance of sectional conflict was for Congress to pass a law mandating that Northern states support and enforce a new fugitive slave act.  He felt that the result of such legislative action would not only protect the South’s slave-based economy, but would also strengthen the powers of the federal government (so much so that the amendment proposed by Calhoun would have expanded the jurisdictional authority of the national government beyond anything that was delegated to it in the Constitution).

The 1850 Fugitive Slave Act was drafted by Senator James Murray Mason of Virginia.  It required states or territories to return escaped slaves to their place of origin and was backed by federal authority.[9]  The act was considered the lynchpin in the entire legislative package as Southern senators refused to support the Compromise of 1850 without the addition of the act, which was so pro-slavery that it included a provision that any claim made against someone that they were an escaped slave “shall be held and taken to be full and conclusive evidence of the fact of escape.”  In other words, any individuals accused of being escaped slaves (even if those persons were born free and lived their lives free in a state where slavery was illegal) would automatically be found guilty of escape, deprived of the ability to give testimony or evidence to defend themselves, and forced (back) into slavery.  No local or state law could supersede the Fugitive Slave Act, which also fined and imprisoned those citizens who chose to assist escaped slaves.[10]  Such a broad overreach of federal power to force citizens to aid slave catchers in opposition to the written laws of their own state was largely unprecedented.  Historian Eric Foner has stated that law was “the most powerful exercise of federal authority within the United States in the whole area before the Civil War.”[11]  In fact, the law eliminated even the most basic notions of federalism.  The Center for the Study of Federalism concluded that “[t]his was the first time in the nation’s history that the national government had a law enforcement role and presence at the local level.”[12]  This degradation of state sovereignty was cheered by Southerners.  However, it failed to provide an all-encompassing answer to the question of how slaves would be treated if they crossed into a free state.  Would the state even have jurisdiction to decide this question?  I address this question and others in “The American Civil War and States’ Rights; A Critique, Part Two: The Dred Scott Decision.”

Brian Krasielwicz lives in Carrollton, Georgia and has a Master’s Degree in Public Administration from Walden University. He spent the last 30 years studying the Civil War and travelling to battlefields through the south. Brian has a fiction novel called “Marsupial Tracks.”

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Works Cited

American Anti-Slavery Society. Declaration of Sentiments of the American Anti-Slavery Society.

4 December, 1833. No. 1. [https://archive.org/details/declarationofsen1844/page/n1/mode/2up, January 06, 2024]

Drexler, Ken. “Compromise of 1850: Primary Documents in American History.” Library of Congress               Research Guides, 2019. [https://guides.loc.gov/compromise-1850, Library of Congress, Research      Guides, Main Reading Room, Compromise of 1850: Primary Documents in American History,    January 06, 2024.]

Finkelman, Paul. “Fugitive Slaves and American Federalism.” Federalism in America; An Encyclopedia,         Volume 1, 2006, https://encyclopedia.federalism.org/index.php/     Fugitive_Slaves_and_American_Federalism Center for the Study of Federalism, January 06, 2024.]

Foner, Eric. “A Historian Explains the Significance of the Fugitive Slave Act.” SHEC Resources for      Teachers, [https://shec.ashp.cuny.edu/items/show/1489, January 06, 2024.]

National Humanities Center. John C. Calhoun, Senator from South Carolina, speaking before the Senate,     March 4, 1850. [https://nationalhumanitiescenter.org/ows/seminarsflvs/Calhoun.pdf, Online            Professional Development Seminars for History and Literature Teachers, January 06, 2024]

New York State Official Website. Full Text – Fugitive Slave Act of 1793.      [https://parks.ny.gov/documents/historic-preservation/FugitiveSlaveAct1793.pdf, Parks,     Recreation, and Historic Preservation, January 06, 2024.]

Pew Research Center for the People & the Press. “Civil War at 150: Still Relevant, Still Divisive.” Pew

Research Center – U.S. Politics & Policy. 8 April 2011. [Online version, http://www.pewresearch.org/politics/2011/04/08/civil-war-at-150-still-relevant-still-divisive, January 06, 2024.]

United States Fugitive Slave Law. The fugitive Slave Law. Hartford, Ct? s.n., 185-?. Hartford, 1850. [Online version, https://www.loc.gov/resource/rbpe.33700200/?st=text, Library of Congress, January 06, 2024.]

Waggoner, C. Social Welfare History Project, 13 March, 2018. Underground Railroad, The (1820-1861),     VCU Libraries. [https://socialwelfare.library.vcu.edu/eras/antebellum/underground-railroad-      1820-1861, Virginia Commonwealth University, January 06, 2024]

World Biography, U.S. Presidents, 2024. Zachary Taylor and Millard Fillmore – The California           statehood question. [https://www.presidentprofiles.com/Washington-Johnson/Zachary-Taylor-                             and-Millard-Fillmore-The-california-statehood-question.html, January 06, 2024]

[1] Pew Research Center for the People & the Press. “Civil War at 150: Still Relevant, Still Divisive.” Pew Research Center – U.S. Politics & Policy. 8 April 2011. [Online version, http://www.pewresearch.org/politics/2011/04/08/civil-war-at-150-still-relevant-still-divisive, January 06, 2024.]

[2] New York State Official Website. Full Text – Fugitive Slave Act of 1793. https://parks.ny.gov/documents/historic-preservation/FugitiveSlaveAct1793.pdf, Parks, Recreation, and Historic Preservation, January 06, 2024.]

[3] American Anti-Slavery Society. Declaration of Sentiments of the American Anti-Slavery Society. 4 December, 1833. No. 1. [https://archive.org/details/declarationofsen1844/page/n1/mode/2up, January 06, 2024]

[4] New York State Official Website “Full Text – Fugitive Slave Act of 1793.” https://parks.ny.gov/documents/historic-preservation/FugitiveSlaveAct1793.pdf, Parks, Recreation, and Historic Preservation, January 06, 2024.]

[5] Waggoner, C. Social Welfare History Project, 13 March, 2018. Underground Railroad, The (1820-1861), VCU Libraries. [https://socialwelfare.library.vcu.edu/eras/antebellum/underground-railroad-1820-1861, Virginia Commonwealth University, January 06, 2024]

[6] World Biography, U.S. Presidents, 2024. Zachary Taylor and Millard Fillmore – The California statehood question. [https://www.presidentprofiles.com/Washington-Johnson/Zachary-Taylor-and-Millard-Fillmore-The-california-statehood-question.html, January 06, 2024]

[7] Drexler, Ken. “Compromise of 1850: Primary Documents in American History.” Library of Congress Research Guides, 2019. [https://guides.loc.gov/compromise-1850, Library of Congress, Research Guides, Main Reading Room, Compromise of 1850: Primary Documents in American History, January 06, 2024.]

[8] National Humanities Center. John C. Calhoun, Senator from South Carolina, speaking before the Senate, March 4, 1850. [https://nationalhumanitiescenter.org/ows/seminarsflvs/Calhoun.pdf, Online Professional Development Seminars for History and Literature Teachers, January 06, 2024]

[9] United States Fugitive Slave Law. The fugitive Slave Law. Hartford, Ct? s.n., 185-?. Hartford, 1850. [Online version, https://www.loc.gov/resource/rbpe.33700200/?st=text, Library of Congress, January 06, 2024.]

[10] United States Fugitive Slave Law. The fugitive Slave Law. Hartford, Ct? s.n., 185-?. Hartford, 1850. [Online version, https://www.loc.gov/resource/rbpe.33700200/?st=text, Library of Congress, January 06, 2024.]

[11] Foner, Eric. “A Historian Explains the Significance of the Fugitive Slave Act.” SHEC Resources for Teachers, [https://shec.ashp.cuny.edu/items/show/1489, January 06, 2024.]

[12] Finkelman, Paul. “Fugitive Slaves and American Federalism.” Federalism in America; An Encyclopedia, Volume 1, 2006, [https://encyclopedia.federalism.org/index.php/Fugitive_Slaves_and_American_Federalism, Center for the Study of Federalism, January 06, 2024.]