History of American Slavery, Episode 8 transcript: The Underground Railroad, the Fugitive Slave Act, and the life of John Parker.

The History of American Slavery, Episode 8: Complete Transcript

The History of American Slavery, Episode 8: Complete Transcript

Slate Plus
Your all-access pass
Sept. 23 2015 3:01 PM

On the Run

Read a transcript of the History of American Slavery, Episode 8.

Illustration depicting the Fugitive Slave Law of 1850.
Illustration depicting the Fugitive Slave Law of 1850.

Photo illustration by Juliana Jiménez. Image courtesy of Theodor Kaufmann/Hoff & Bloede/Library of Congress.

To listen to Episode 8, click here to visit the show page.

This article supplements the History of American Slavery, our inaugural Slate Academy. To learn more and to enroll, visit Slate.com/Academy.

This transcript has been lightly edited for clarity.

* * *

Rebecca Onion: Hello, and welcome to the History of American Slavery, a Slate Academy. I’m Rebecca Onion, Slate’s history writer.

Jamelle Bouie: And I’m Jamelle Bouie, Slate’s chief political correspondent.

On this episode of the podcast, Episode 8, our penultimate episode, we’re going to survey the landscape for that small minority of enslaved people who managed to escape slavery in the 1840s and 1850s, and we’re going to take a closer look at the people who helped them along the way. We will begin as we do on each episode with the biography of a single person.

Today, that person is John Parker.

* * *

Born in 1827 in Virginia, John Parker was 8 years old when he was sold away from his family and forced to march more than 800 miles to Alabama. As a young man, Parker was apprenticed to an iron foundry and managed to buy his freedom at age 18.

“It was not the physical part of slavery that made it cruel and degrading,” Parker later recalled, “it was the taking away from a human being the initiative of thinking, of doing his own ways. … Slavery’s curse was not pain of body, but the pain of the soul.”

By day, as a free man, Parker became a successful, industrious entrepreneur, and a father to six. He established his own foundry in Ripley, Ohio, and was one of the only black Americans to hold a patent before the 20th century.

By night, he fought what he called “his own little personal war on slavery” as a daring conductor of the Underground Railroad. He was known for making dangerous excursions into Kentucky, helping to ferry enslaved people across the Ohio River. During the war, Parker also manufactured war supplies and recruited black soldiers for the Union army.

John Parker risked his success, freedom, and life to help hundreds of people escape their enslavement. As an Ohio newspaper wrote upon Parker’s death in 1900, “a more fearless creature never lived. He gloried in danger. … He would go boldly into the enemy’s camp and filch the fugitives to freedom.”

* * *

Onion: I don’t know about you, Jamelle, but the Underground Railroad is, I think, the first thing I learned about when I learned about slavery.

Bouie: I have a distinct memory of trying to tell a kid in fourth grade that the Underground Railroad was not in fact a railroad that was underground.

I should find that kid, see what he thinks now.

Onion: Yeah, yeah.

Bouie: But I have to say that, that’s probably the first thing I learned about, too.

I think it’s a kind of standard issue narrative that kids learn. This is going to sound a little cynical, but I think it’s because it makes Americans look really good.

Onion: Yeah, totally.

I mean, it’s much easier, I think, to teach that story, or the story of maybe Harriet Tubman, than it might be to teach the story of people’s lives who never managed to escape.

And to some degree this is the same problem that we’ve been talking about throughout all of our recordings. Which is that, you know, the people who got away, the people who left some record are easier to talk about historiographically because there’s documentation. There’s word of what happened to them. But it’s also just an easier conversation to have, in some way.

Bouie: Right. It is hard to wrap our heads around the idea that much of the history of American slavery can essentially never be told, because we don’t know the names of the people and their stories.

Onion: So, earlier this year a professor from Columbia University, historian Eric Foner, published a book that tries to take a different look at the Underground Railroad. He writes particularly about the Railroad in New York City. The book is called Gateway to Freedom. And super excitingly, we got to interview professor Foner about his research.

We began by asking him to try to talk a little bit about the way that historians have understood the Underground Railroad over the decades that people have been writing about it. And that’s actually changed quite a bit.

Eric Foner: To understand the historiography, you have to go back really to the late 19th century, the early 20th century. A professor at Ohio State University, Wilbur Siebert, wrote several books about the Underground Railroad based in large part on questionnaires he sent out to aging abolitionists. And basically Siebert gave this picture of a highly organized, very extensive system with regular routes and stations and agents, and taking thousands and thousands of slaves to freedom from the South.

I think he took the railroad metaphor a little too literally. He had maps of these routes, which look like railroad train routes. And the heroes were the white abolitionists who were assisting helpless blacks, basically. And that remained the basic view of the Underground Railroad for a long, long time.

Not until the 1960s, a different scholar, Larry Gara, published a book called The Liberty Line, which basically said, look, Siebert’s work is just propagating legends and myths, which abolitionists had been putting out there. And actually there was very little of an Underground Railroad. Most of the credit ought to go to the people who escaped themselves, and then they were mostly aided by free black people in the North, not by white abolitionists.

And the whole idea of a highly organized system was really mythological. And a lot of historians accepted that, so for a long time there wasn’t really very much study of the Underground Railroad.

But i the last, I’d say, 10 or 15 years there's been a renewal of interest, particularly of people doing these local level studies—you know, the Underground Railroad in this town or that town, this rural area.

And the picture we have now and that I try to put forward in my book is not a highly organized system, but a series of local groups and local networks that communicated with each other, that rose and fell over time. It wasn’t a fixed entity by any means that didn’t involve that many people sort of working full time on it. But it did manage in the, let’s say, 30 years before the Civil War to help a significant number of slaves reach freedom, especially after they got into the North. We should not think that there were all sorts of agents and stations in the South.

Bouie: In previous episodes, we’ve talked quite a bit about how there all these myths around slavery. About the benevolence or lack thereof of slaveholders, about whether or not the institution was as bad as people say it is, and so on. One sort of myth on the other side, I think, is exactly what professor Foner is talking about here, that the Underground Railroad was this big and comprehensive institution.

When in fact, as he points out and as we’ll discuss later in the episode, it was loose. It was more a network of underground cells, and not even a particularly comprehensive one at all, than it was some kind of institution that people sort of could readily identify.

Onion: Yeah. And again, I think that’s much more comforting to think that the Underground Railroad would have been this sort of solid institution.

But the picture that Dr. Foner paints for us is one of a much more contingent— and I don’t want to say unreliable—but it sounds like whether or not the Underground Railroad could help you depended on where you were, and where you were going, and what time you were trying to go there. What historical time, I mean.

Something else we talked about is the fact that most of the people that were helped by the Underground Railroad were coming from the upper South. I think we touched upon this a little when we were talking about the expansion of slavery south and west, but it was much easier for people who were in Maryland, maybe Virginia, to try to figure out a way to hook up with people from the Underground Railroad and get away.

And we talked a little bit about the fact that there were, you know, a few other ways, geographical directions that people could go to get away, besides north to Canada. There were some people who tried to go, and succeeded, at escaping into Mexico. Or people who tried to get from further down in the South to islands that were held by the British.

But that number of people is just much smaller than the number of people who managed to get from the upper South to Canada. So whether or not you could be helped really was contingent on where you were.

Bouie: That’s right. If you were stuck in Alabama, for example, odds are pretty good that you’re not getting out.

Onion: Right.

One of the things that I loved about Dr. Foner’s new book is that it’s really about people working on a really local level.

So, he’s talking about the small community of people in New York who were working to help fugitives get north. And one of those people was a journalist whose name was Sydney Howard Gay. And he actually left behind a really unusual document that an undergraduate at Columbia University discovered in the archives and sort of tipped Dr. Foner off to. And this document is almost singular among records of the Underground Railroad because, as you can imagine, a lot of the people who were helping fugitives did not keep records.

There’s a few exceptions, but it was pretty uncommon for this kind of book to survive.

Foner: My book originated with this document called the “Record of Fugitives,” that this white abolitionist editor in New York kept for two years in the 1850s. And he recorded the experience of over 200 fugitive slaves who passed through New York and he helped.

He recorded what he spent his money on, and it was little amounts of money. A train ticket to Albany or something like that. Or literally even the postage for a letter to send to someone saying, “OK, I’m sending two guys tomorrow on the train to you,” or something like that.

Or clothing for them. People who ran away from slavery would dress like slaves. And you know, they had to have new clothing so they didn’t look like slaves anymore. And then food or accommodations. Sometimes he would pay someone to put them up for a few nights.

And a lot of the money went to his assistants. His office is a perfect example of interracial cooperation because you have the white abolitionist editor and then you have a black guy with the kind of resonant name Louis Napoleon, who was basically on his payroll—supposedly working as a kind of janitor but really working with fugitive slaves—and he recorded all these payments to Louis Napoleon. Two dollars here, $2 there, $5 there, for work finding fugitive slaves in the city, helping them, getting them to the office, getting them to the train station, that kind of thing.

Onion: So, that’s really, really valuable document to have, is this ledger or diary that can tell us exactly how the people who were working on this project were running almost like a little nonprofit, trying to figure out how to help people get through New York and get north.

Bouie: That’s right. And like a lot of modern-day nonprofits, or at least modern-day small nonprofits, there just wasn’t that much money to go around.

You had a few well-to-do white abolitionists, people who had money beforehand or who were successful in business or whatnot. But they were few and far between, and that’s not surprisingly because there just weren’t that many abolitionists period, or at least not that many white abolitionists.

So a lot of the effort and the money, such that it was, came from African-Americans. Whether they were former slaves who had escaped to freedom and decided to at least devote some of their resources to helping others; whether they were freeborn people who used their positions in society, locally or otherwise, to channel resources, money, places to stay, food, to other individuals or small groups helping slaves escape north.

But you could legitimately call it a shoestring operation. Again, it wasn’t a vast network of agents and stations. It was small groups of people scattered across the country doing what they could.

Foner: Most of the money was raised in very small amounts from free blacks.

The Vigilance Committee in New York had a whole system where people would—mostly black women—would collect just a few pennies from friends every week and it would go into this kind of pot of money for assisting fugitive slaves.

And then there were these fairs, these anti-slavery fairs run by women, almost like a bake sale. They would bake goods or they would make things like, you know, quilts or other stuff.

And there were various ways of raising money, but you're not talking about a lot of money. They’re always in danger of running out of money, is the problem.

Onion: So, that’s another interesting thing about abolitionism to me, is that there’s a lot of women involved in it around this time, the 1830s, 1840s, 1850s.

It’s sort of one of the first flowerings of public involvement for American women, is to be involved in these reform movements. By 1850s, it’s suffrage. But in the 1840s, 1850s, it’s abolitionism.

So, this became something that women could be involved in and be in the public sphere in a way that they wouldn’t necessarily have been before.

Bouie: Yes.

And this is probably a subject for a different podcast, but I think that it is connected to the temperance movement as well, which was primarily women. And there’s a lot of ways in which the temperance movement was this gateway movement towards involvement in other, I guess you’d call them progressive reform movements in nineteenth century America.

Onion: For sure.

Bouie: One thing that is worth noting, was the extent to which the Underground Railroad movement did not have the entire support of the abolitionist community. There were abolitionists who did not think this was a good use of resources versus a small and fledgling group of activists.

Foner: There were those who said, “This is not what we ought to be doing—and not spending our money, our resources. What we are doing is fighting for the abolition of slavery. Helping people escape from slavery is not abolishing slavery.” If someone wants to help them, fine, but there are people who said the abolitionist movement as an organization should not be devoting resources and time to this.

And I write about this kind of controversy in the 1850s, where Sydney Howard Gay’s wife in New York wrote a letter to a leading abolitionist woman in Boston who had organized the fairs up there. And she said, “We want to organize a fair in New York to raise money for fugitive slaves.” And Chapman said, “No, I’m not going to help you do that because that's not really anti-slavery. What you should do is raise money and give it to the American Anti-Slavery Society for its agitation against slavery, not to help individual slaves.”

Bouie: You know, it’s interesting—I think those are kind of the same debates that radical activists have today about so many issues. Whether it is trying to, you know, address poverty, or prison reform, or any of these issues that in some sense are spiritual descendants to the progressive reform movements of the nineteenth century.

There’s always debate about do we help individuals, do we help people as they come? Or do we focus our fire on the institutional forces that are responsible for the broad system? And even today that’s unsettled. People cannot decide whether that’s the approach they want to take.

And I should say, I said this was a problem for radical movements. But it’s a problem for any kind of reform movement.

At the forefront of my mind at the moment are movements to improve schools. And there’s a constant debate over whether or not you focus on teachers and individual students, or whether you focus on trying to improve the situation institutionally, trying to improve entire school systems or entire educational funding systems.

Onion: I think something that we don’t often talk about when we’re talking about abolitionism is the way that people within the movement had all kinds of perspectives about how an anti-slavery person should approach helping people who are trying to escape slavery.

And especially in the 1850s, after the passage of the Fugitive Slave Act of 1850, which required people in all states to help returning fugitives to their slaveholders, and made it illegal to deny aid to slaveholders that were trying to recover their human property. That act really catalyzed this debate within abolitionism about, you know, how far should you, as a person who is anti-slavery, go in physically defending, maybe fighting for the freedom of someone who was trying to escape the clutches of a slaveholder.

Foner: There was escalating violence in the 1850s, these violent fugitive slave rescues. Bleeding Kansas, a civil war in Kansas in 1855, ’56, ’57. In other words, the Civil War was of course a much more titanic example of violence, but nonetheless there were things leading up to it. It didn’t just come out of whole cloth, particularly along the border.

The border between Pennsylvania and Maryland, there was a lot of violence even going back to the 1820s, where slave catchers would grab someone and then a bunch of black people, usually, would fight the slave catchers. Sometimes the guy would get away, sometimes he wouldn’t.

But what happens in the 1850s is this violence extends further into the North. You have this in Boston, you had it in Syracuse, Milwaukee, or Troy, New York. It becomes more widespread in the 1850s.

Onion: You know, one thing about the book that was really interesting to me is New York, which had a very Southern-friendly city government, and a lot of financial interests that are sort of tied up in slavery. This place, Dr. Foner argues, is sort of a microcosm of what’s going on in the rest of the United States in that there is this sort of governmental sympathy to slavery. And then there’s also quite a few people in the city who are starting to feel a different way about it. And that volatile situation results in these little violent incidents in defense of fugitive slaves.

Bouie: Right.

And I want to emphasize something professor Foner says about the violence not coming out of whole cloth. This is probably one of my little hobbyhorses, but one of the things that does frustrate me, whenever there are discussions of the Civil War, is this idea that it was kind of a sudden thing.

But as professor Foner notes, thanks in part to the fugitive slave law in 1850, you’d have this preceding decade of dramatic violence between abolitionists and slaveholders or pro-slavery groups in these border states and territories over the question of, will slavery expand?

And resistance to the fugitive slave law, which was a tremendous imposition of federal power in the direction of slaveholders. For a decade they could just waltz into Pennsylvania, say, or New York City, and essentially claim any black person there who couldn’t prove their history as a fugitive slave, and then forcibly take them south.

Onion: It’s kind of a terrifying vision.

Getting back to the larger question of why it is that people love to talk about the Underground Railroad. We asked Dr. Foner why he thinks it is that the old myth of the Underground Railroad has proven so hard to shake. Why is it that almost everyone that you speak with in a northern state who has purchased an old house will tell you that there is an Underground Railroad like hidey-hole or a closet that was used to help fugitives?

And he had some interesting things to say about that.

Foner: You know, people like to read about the Underground Railroad.

First of all, you do have stories of amazing individual courage and resourcefulness, of people escaping from slavery. The stories of these people are remarkable, and it was very, very hard to escape from slavery. We should not underestimate that at all.

And in the South, it was mostly done either on their own or with the assistance of a very, very small number of people. Now, Harriet Tubman is an exception. She goes back down and leads people out. Most people who escaped were not led out by anybody; they got out by themselves. But you know, it's stories of courage, stories of very great drama.

And also of interracial cooperation. I think this is something that both black and white people can look back on with pride. You know, slavery is still a very fraught subject in our public consciousness. People get slavery is 150 years ago, the end of slavery. Nobody in the United States today has ever a slave or owned a slave, at least in the United States, right? Nonetheless, people find it uncomfortable to talk about slavery. I’ve just noticed this. I lecture around a lot, and white people often feel that you're accusing them of something if you emphasize slavery.

I’m not accusing anybody of what happened 200 years ago, you know?

But nonetheless, that's why there's so much resistance to even acknowledging that slavery was the fundamental cause of the Civil War. Everybody at that time knew that. That was obvious.

In his second Inaugural Address, Lincoln said—I’m paraphrasing here—“Let’s get serious, folks. Everybody knows slavery is the cause of the Civil War.” Nobody got up and said, “Oh, Lincoln, no, you're wrong about that.” Everyone knew it.

They don’t know it anymore. They don’t like to hear that. They’re like, “Oh, it was states’ rights, it was the tariff,” or something like that.

So, slavery is uncomfortable, but the Underground Railroad makes people feel proud somehow. Here you have both black and white people in an undeniably just cause. At a time when race relations are rather complex, to say the least, in this country, this is something that is a good example of interracial cooperation in our past.

Onion: Alright. I’m very curious, Jamelle, to hear what you think about people’s love for the Underground Railroad. Because I am, myself, I’m deeply conflicted about whether or not I think it’s a good thing that we’re so fixated on this particular part of the history of slavery.

Bouie: It’s tough because like professor Foner says, it is an inspirational story of interracial cooperation. It is really, in some sense, heartening to know that there were people, who were trying to do what they could to help people escape this very awful institution.

And so, I very much sympathize, as someone who thinks it’s important for people to be able to look back to their history and find something inspirational to hold on to. I completely understand the tendency to expand, and to borrow a fake word from The Simpsons, “embiggen” the role of the Underground Railroad.

At the same time, we’ve put so little emphasis and we’ve said so little about the realities of slavery, the institution, that it goes by the wayside. Because Professor Foner is right.

People do not want to think about the role slavery played in this country’s history. They don’t want to consider how terrible of an institution it was. People would prefer to think that all of this was, you know, A, in the distant past, and B, relatively—not mild, but you know, all things considered—not the worst thing in the world.

And it’s much more comfortable to talk about something like the Underground Railroad. I think we’re at a point where focusing on the Underground Railroad to the exclusion, or to the lesser emphasis, of the entire institution itself is a real disservice.

I think it would be best if we spent a little less time talking about the Underground Railroad and a little more time talking about the millions of people who never escaped and who did endure a genuine historical atrocity.

Onion: I totally agree with you.

I’m kind of thinking about ways that we can talk about slavery, and talk about the sort of the persistence of the human spirit within slavery, without falling back on these narratives that always end with making us somehow feel better about it.

Bouie: Right. Like I said, I don’t begrudge anyone’s desire to want to feel good about the past.

But at the same time, the past isn’t just there for us to feel good about.

And I do think that given the still intractable nature of racial problems in the United States today, we all do ourselves a real disservice by not thinking harder and thinking more seriously about the realities of slavery and the reality of life for the enslaved.

Because all of that stuff does reflect back on the present, whether it’s obvious or not.

Onion: In the next half of our episode, we’re going to talk to Steven Lubet, who’s a historian of law from Northwestern who writes about fugitive slave trials in the 1850s.

* * *

Onion: Welcome back to the History of American Slavery a Slate Academy. I’m Rebecca Onion.

Bouie: And I’m Jamelle Bouie. Today, we’re talking about the final decade of American slavery, the 1850s, and specifically what happened to the slaves who managed to escape and make their way to the free soil of the North.

Onion: We’re going to talk now about another form of resistance that sprung up in many cases, when runaways were discovered and unfortunately recaptured. The scholar who is going to help us in the second half of this podcast is named Steven Lubet, a professor in the Northwestern University School of Law.

He’s written quite a bit about the legal landscape for runaways and for the people who aided them, especially after the passage of the 1850 Fugitive Slave Act, which, as we’ll discuss, was not the first law put in place to help slaveholders recover fugitives, but was a really extreme one that was passed as part of the Compromise of 1850 to try to keep Southern votes in Congress happy.

One of the major effects of the Fugitive Slave Act of 1850 is that if you helped a fugitive, you would be punished. There was major incentive to recover fugitives, you know, monetarily. And it became much easier, legally, for a fugitive to be renditioned back, to be brought back to a slaveholder. And one of the unintended consequences is also that people who weren’t actually enslaved, free black people, would be kidnapped out of the Northern states and brought back down to slavery.

The first story that professor Lubet told us takes place in Oberlin, Ohio, a town that we now know mostly because of the existence of Oberlin College, an excellent small liberal arts college that many of my friends attended and loved. But in the 1850s, as professor Lubet told us, Oberlin had another more radical claim to fame.

Lubet: Oberlin was the most integrated and most abolitionist community in the United States, and it was known as a haven for fugitive slaves. Slave catchers operated all around Oberlin and Ohio, but they seldom attempted to get into Oberlin itself because the population there–white and black–were so committed to resistance.

But in September of 1858 a group of Kentucky slave catchers did manage to kidnap someone in Oberlin, a runway named John Price.

They took him off to the nearest railroad depot in Wellington, where they intended to take him first to Columbus for a perfunctory hearing, and then back to Kentucky. But they were observed, and hundreds of Oberliners—students and townspeople and faculty—chased them down, tracked them down to a hotel in Wellington. And then they stormed the hotel and rescued the fugitive.

And that became known as the Oberlin rescue. The Buchanan administration was outraged, because the posse had been led by a deputy federal marshal, and Buchanan depended on Southern support for his presidency. And so 36 of the rescuers were indicted, and two of them were brought to trial. Both were convicted.

Onion: These were white rescuers?

Lubet: One white, one black.

Onion: OK, wow.

Lubet: The rescuers were completely interracial, whites and blacks together. When the case was brought to trial, the first defendant was a white man, and the second one was a black man named Charles Langston—who, by the way, was the grandfather of Langston Hughes.

Onion: Amazing. And what ended up happening to those defendants?

Lubet: The two were brought to trial and convicted, and then the slave hunters themselves were arrested for kidnapping by the county authorities in Lorain, Ohio, which was dominated by Republicans.

And then you had a standoff, with the rescuers in federal custody and the slave hunters in county custody, and they reached a detente and let everybody go.

Onion: Crazy. That’s chaos.

Lubet: It’s a fascinating example of the dispute over states’ rights.

You know, [today] we think of states’ rights as being completely a Southern phenomenon and being asserted in support of segregation. But up until the Civil War, there was a mirror argument in the North, where the Northern states insisted that it was their states’ right to protect alleged fugitives.

Bouie: It’s funny professor Lubet mentioned state’s rights, because one of the things that I think gets lost in a lot of the ideological talk about the Civil War, in disputes about whether the war was about slavery or about state’s rights, is that in the prior decade, in the 1850s, you had a Northern argument about state’s rights, too.

And that was that the South was unjustly using federal power with the Fugitive Slave Act to demand national commitment to their institution. And Northern states had prerogatives, as states, to resist that.

And this gets, I think, lost in the conversation about state’s rights. But it’s very much a part of the political scene. There was real anger over the sense that the South was expanding federal power beyond the reach it should have.

Onion: Thinking about it that way sort of helps me understand the sort of extreme reactions that people had to the enactment of that law. I think that was, in a lot of ways, exacerbated by the way that this law was implemented or the way that these trials went.

This is one of the major arguments that professor Lubet makes in his book—there are these panels of commissioners that are authorized by this federal law to move the matters through the court quickly. And so, you know, there’s this sort of sense that there’s not due process, there’s not a right to appeal. The fugitives have very few protections.

We asked professor Lubet how that worked, what standing somebody who ran away and then was recovered by a slaveholder would have in one of these federal courts.

Lubet: They were technically the subject matter of the proceeding, really, and not parties to the proceeding. So standing was minimal.

Most of the times the commissioners would allow lawyers to appear for them if a lawyer showed up. There was no right to counsel and there was no appointment to counsel. They were sort of dependent on good luck.

Bouie: Were there juries at all?

Lubet: There were no juries at all in fugitive slave renditions under the Act of 1850, and that was very controversial when it began.

Up until 1850, fugitive slave renditions were handled by state courts, and the states might have jury trials and they might not. But generally speaking, there was a greater amount of due process involved.

That all changed in 1850 when the federal government took it over and instituted these very summary proceedings—really skeletal proceedings—that were aimed at hasty, quick, almost immediate decisions.

Bouie: It’s worth saying a bit more about why the Fugitive Slave Act of 1850 was so controversial. If we go back to the signing of the Constitution and the ratification of the Constitution, Article IV has a clause essentially allowing states, cities, town, so on, so forth, to recapture fugitive slaves.

Of course, the Constitution does not say ‘slave.’ It never uses the word slave. It avoids that word and uses euphemism instead.

But it does allow for this thing to happen. If a slaveholder wanted to press upon his state to recapture a slave, there’s nothing in the Constitution forbidding it. But the Constitution doesn’t have any enforcement mechanisms for it. It’s just a thing that you can do if you want to.

In the Second Congress, the Congress passes and George Washington signs the Fugitive Slave Act of 1793, which puts an enforcement mechanism behind it. But this enforcement mechanism is focused on the states themselves.

Officials in cities, and towns, and counties have the right to pursue fugitive slaves and try fugitive slave cases. And state courts are set up to do this.

But let’s say a slave escapes into Illinois or escapes into Massachusetts and a city or official doesn’t want to do anything about it. Says, “Well, they’re here and slavery is illegal here. So, we’re not going to enforce any South Carolina law.”

Then that’s it. There’s nothing the South Carolina slaveholder can do.

And for the entire period between 1793 and 1850, slaveholders really think this is outrageous. If their “property” escapes, they have no real recourse once they leave Southern territory. For Northerners, this is fine.

1850 comes, and in order to appease Southern slaveholders, a new fugitive slave act is proposed.

And this one actually puts teeth behind both the Constitutional clause and, essentially, it broadens the enforcement of the Fugitive Slave Act of 1793, expanding what was formerly a very local and state-based decision into a federal system of fugitive slave courts and fugitive slave enforcement. From the perspective of someone in 1850, that is a dramatic change over what the law has been basically since the founding of the country.

Under the Fugitive Slave Act of 1850, not only are local officials required, they are deputized by the federal government to pursue fugitive slaves—whether they want to or not. And Southern slaveholders and Southern authorities can come into Northern states, in circumvention of Northern law, take anyone they deem to be a fugitive slave.

And if you are caught harboring or defending a fugitive slave, you’re liable to a fine of $1000, which is roughly, adjusted for inflation, $28,000 today. And for a sense of how much money that would take someone to accumulate, that’s like two years’ worth of wages, basically.

Onion: It’s so much money.

Bouie: It’s a ridiculous amount of money.

Onion: It’s amazing.

Bouie: And then jail time. And so, from the perspective of Northerners at the time, this is a massive expansion of federal power designed to protect an institution which many, if not opposed to, kind of view with disgust.

Onion: Jamelle, you had what I thought was a really apt question for professor Lubet. Which is, given that it’s not a huge percentage of people who were able to escape, and given that this new law created a lot of controversy around the institution, and had people in the North more up in arms about slavery than they may have been before, you sort of asked, why would the South have devoted so much energy to trying to get a law like this on the books?

Lubet: The Southerners regarded this as a point of honor, which apparently was much more important to them than freedom. They thought that cooperation from the North in returning fugitives was essential to continuing to participate in the Union.

But there was more to it than honor. Southerners really insisted that slavery needed to be a national institution, and this is where the great political fault line was.

To Northerners, slavery was local and regional, and shouldn't have any force of law outside of the states where it already existed. Southerners demanded that slavery be regarded as something national. They said that the Constitution follows the flag and the Constitution protects slavery.

It was really a matter of both pushing slavery into the territories and also enforcing their rights to own human property, even in the Northern states.

Bouie: One thing that I’m not sure modern readers, or listeners, or observers would really get from the political environment of the 1850s, and really of the 1840s, is a very pervasive Northern paranoia about the power of slaveholders in the federal government.

There was something that they called slave power. If you read early Abraham Lincoln speeches, he’s railing against slave power. Although railing is probably a bit of an unfair description of how he approaches it.

But the basic idea is that slaveholders aren’t just another faction or interest group within the American government. They’re a conspiracy of interests all pushing the entire federal government and the entire country to acknowledge and support the institution of slavery.

While this doesn’t necessarily make all Northerners abolitionists, doesn’t make them people who believe in black rights. But it does make them people who are really resistant to the idea that the federal government ought to be engaged in directly supporting and propping up slavery.

And so the Fugitive Slave Act of 1850 really convinces a lot of people that slave power not only is real but is dominant and rising in American political life.

Onion: Switching gears back a little bit, to the way that the trials went.

We talked a little bit about the Oberlin rescue that didn’t really result in a lengthy trial. But there’s one other trial that Dr. Lubet told us about that illustrated another principle. Which is the idea that when it came to prosecuting people who were involved with rescues or escapes, there were a lot of instances in which the people who were prosecuted were the white assistants.

We talked about one of these trials, about an incident that happened in the town of Christiana, Pennsylvania, which is right across the Mason Dixon line from Maryland. This happened in 1851. Four enslaved people had come over the state line, taken refuge with a free black farmer known as a defender of runaways.

They had been there, I believe, for a couple of years, when the slaveholder came across the Mason Dixon line to capture them. In this sort of dramatic, amazing story, the wife of the person who was harboring the runaways sounded a horn to try to call assistance to her farm when the slaveholder showed up with some hired muscle to help him.

And one of the people who came to the rescue was a white miller named Castner Hanway, who was not necessarily an abolitionist. But he was a neighbor and had sort of a basic belief that slaveholders should not be able to take back the enslaved people who had been living on the neighboring farm.

And the slaveholder was killed and a couple other people with him were wounded in the ensuing fracas. But the person who was most strenuously tried for this was Castner Hanway, the white miller.

He was actually tried for treason.

Lubet: Hanway was the defendant they tried first because the notion of black inferiority was so deeply engrained that they could only assume that there had to be white people behind it.

Also, the whole theory of slavery rested on the idea that the slaves were complacent and that they would only rebel if they were incited by outsiders. This mythic notion was indisputable among Southerners and among many Northerners.

So when the federal posse was repelled by armed black men, and when the slave master was killed in Christiana by people who were resisting recapture, it was reflexive that there had to be white people behind it.

There weren’t. This was African-American resistance beginning to end. Frederick Douglass called it “freedom’s battle,” which indeed it was.

But the slave owners couldn't see it that way. They had to search for the white schemers that they assumed had to have been behind it.

Onion: The outside agitators?

Lubet: Outside agitators. So, that’s why Hanway was the first person they chose to prosecute.

Why treason? This is a very complicated legal issue. There was a theory that wasn’t a legal theory, that didn’t originate in the slavery context, that the attempt to overthrow a particular law was what was called “constructive treason.”

The Constitution defines treason as either making war against the United States or giving aid and comfort to its enemies. And war against the United States, it was once thought, could mean violent resistance to the existence of a law.

That was the theory—Henry Clay, actually, was behind this—the theory for bringing a treason prosecution against the resistors to this Fugitive Slave Act. Since you're attempting to prevent the law from ever going into effect, that's the equivalent of treason.

And the courts rejected it and said, no, that you have to prove more than that.

Onion: So, in the end, Castner Hanway was quite quickly found not guilty.

And this trial was a big turning point in people’s awareness of what the Fugitive Slave Act was going to mean for people who wanted to help fugitives.

Bouie: One question this raises was who exactly were these people defending fugitive slaves to begin with?

It doesn’t appear to be a particularly easy task. It’s a risky task. And it really is putting yourself at the center of a massive political controversy, at a time when these sorts of political questions weren’t so much determined through the courts.

Lubet: There were lawyers who volunteered their services, who risked their careers in order to participate in defending either rescuers of fugitive or the fugitives themselves. They were very admirable people, and some of them quite famous.

Thaddeus Stevens, for example, who was a member of Congress, and, if you saw the film Lincoln, he was essential in the passage of the 13th Amendment.

Onion: These are people who choose to become involved in these trials? They want to?

Lubet: Right, they chose to become involved. They inserted themselves. We sometimes try to think of civil disobedience or civil rights litigation as a modern phenomenon, but really it existed in the 1850s.

Onion: One of the things that I found really interesting about Dr. Lubet’s Fugitive Justice book is the way that it makes the point that it’s not just that lawyers are having their ideas about law evolve because of the Fugitive Slave Act. There’s also sort of a new consciousness of what it means to be governed by a law, among people in general who are interested in abolition.

Lubet: When the fugitive slave bill was being debated in the Senate, William Seward had recently been elected to the Senate by the New York Legislature. William Seward, of course, went on to become Lincoln’s Secretary of State, and he gave a speech opposing the Fugitive Slave Act.

Now, the proponents of the law said it was required by the Constitution, by Article 4 of the Constitution. And Seward said there's a higher law than the Constitution.

And that was explosive when he said that.

Onion: It would be today, too.

Lubet: It would be today. Well, you can’t imagine somebody saying that on the floor of the Senate today.

Bouie: Right, right.

Lubet: But Seward said there's a higher law than the Constitution. That became a really symbolic statement.

People who opposed the capture of fugitive slaves became known as “higher lawmen,” or “votaries of the higher law.” And that argument was made mostly by ministers from the public or at public meetings. And eventually it worked its way into the courts, but not until the end of the decade.

Bouie: One thing that’s worth emphasizing is that this really is a whole decade of activity, from 1850 and the Fugitive Slave Act to 1859 and 1860.

And during this decade, we have Bleeding Kansas. We have fighting in Missouri. We have constant cases of Northern citizens resisting the Fugitive Slave Act. A rush of activity and growing tension.

I’m sure most people listening to the podcast have heard of John Brown. And John Brown pretty much comes out of all of this, right?

This escalating tension, this growing violence, this real sense that there’s a confrontation happening, a violent one, between the North and between the slave power.

Onion: Actually, Dr. Lubet has a new book coming out; right as we record the podcast, it’s coming out. A biography of a figure, John Anthony Copeland, who was a free black man who went to Oberlin College and participated in the Oberlin Rescue.

He ended up getting recruited, along with some other black participants in the Oberlin Rescue, by John Brown to be part of his raid. And sadly, John Anthony Copeland ended up getting convicted of treason and was hanged on December 16th, 1859. But his life kind of makes the point that this is a sort of evolving decade of conflict.

Lubet: The fugitive slave resistance was inextricably linked to the John Brown invasion, and the John Brown invasion really made the tension between North and South almost irrepressible. And none of that would have been possible if 21 men hadn’t joined John Brown. He certainly couldn't have done it if no African-Americans had been with him.

I mean, his whole plan was to create resistance among slaves, and he depended upon having African-American soldiers with him to inspire that. Which is why I think the involvement of John Anthony Copeland was so important to the events at Harper’s Ferry.

Bouie: In traditional narratives of how the Civil War happened, we tend to pretty much just focus on whites on both sides of the conflict.

Whether it’s abolitionists in the North “fire-eaters” in the South. Whether it’s Northern politicians versus Southern slaveholders and Southern politicians. Kind of the locus of action in the entire drama is among whites.

But I think what professor Lubet illustrates, what all of our interviews and conversation this episode have illustrated, is the extent to which driving this conflict and driving many of the forces that eventually led to the war were the actions of individual enslaved people and their communities. People trying to escape to freedom. People trying to help others escape to freedom. And how their actions and their organization set up the irrepressible conflict that would eventually come in 1860, and arguably defined through the rest of the century, and really the rest of the United States.

Onion: Yes.

And that is one of the major things that I learned from reading about John Parker also, going back to our biography with which we started the episode. Is the amount of risk that he put himself in, in order to help people who were in the position that he had been in until he was eighteen.

It’s kind of amazing to think about, the degree to which he stood to lose everything that he had gained. It just goes to your point, which is that there are forces at work in the sectional conflict that were coming from the very people who were sort of most affected.

And when we get to our ninth episode, our next episode, which will be about emancipation, we’ll see this dynamic again.

You know, we’ll see again the degree to which the people who were struggling to get free during the war were able to fight for themselves in different ways.

Bouie: Yes. If so much of the history of the American slavery before the war and emancipation is really the history and stories of individual lives, then I think the history of the Civil War, and the history of emancipation, and the history of Reconstruction is, again, the history of these individual, formerly enslaved people trying to make their lives whole.

Onion: You’ll find that ninth episode in a couple weeks’ time. Until then, I’m Rebecca Onion.

Bouie: And I’m Jamelle Bouie. Thank you so much for listening.

Transcript prepared with help from Ian Callahan.