I. COMPARING THE FUGITIVE SLAVE ACTS AND PRIGG V. PENNSYLVANIA'S CONTRIBUTION TO IMMIGRATION LAW AND POLICY
A. 1789 Fugitive Slave Clause and the 1793 Fugitive Slave Act
During the Constitution's drafting, the Fugitive Slave Clause was added as a compromise between the northern and southern states. The clause provided:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
According to Robert J. Kaczorowski, the Clause codified the common law right of reception, which “authorized the owner of chattel, such as livestock [or slaves] ..., that strayed or were taken away, to recover them through self-help, provided it could be done without a breach of the Thus, the Fugitive Slave Clause permitted the federal government to resolve conflicts amongst the states by enforcing the right of slave owners to retrieve their fleeing property. The Supreme Court eventually affirmed this grant of power, noting that “if, indeed, the Constitution guarantees the right ... the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce
In order to make the Fugitive Slave Clause operational, Congress passed the Fugitive Slave Act in 1793 (1793 The 1793 Act provided a process to return fugitive slaves, as well as penalties for those who obstructed their rendition. Slave owners and their agents had a cause of action to enforce their constitutionally secured right of reception in private lawsuits brought in federal and state courts under the 1793 Act. Their efforts were often successful as “[s]lave-owners and their agents brought many civil suits under the 1793 statute, and they succeeded in recovering the civil fine and tort damages more often than they
The removal process under the 1793 Act involved several steps: (1) the fugitive slave was seized or arrested; (2) the slave owner took the slave before a judge or magistrate in any state or federal court; (3) upon proof the official issued a certificate authorizing removal of the fugitive slave from the state; and (4) a penally of a fine or jail time was imposed if a person had or attempted to obstruct or hinder rights under the Act. The seized fugitive slave “was not entitled to a trial by jury, was not guaranteed the right to testify, and oral testimony was [only] permitted to prove the claim of There was no statute of limitation on claims under the Fugitive Slave Act, making the fear of recapture indefinite.
The 1793 Act proved ineffective for three reasons: (1) the reluctance of local officers to enforce the provisions; (2) the underlying moral conflict between the northern and southern states regarding slavery; and (3) the constitutionality of the Act. In addition, “[a]s federal judges were rather scarce at the time, the implementation of this law was often quite inefficient, inconvenient, and dangerous. The law did not authorize the issuance of warrants, nor did it allow federal marshals to aid in the pursuit and capture of
Many cases brought under the 1793 Act were actions in tort against persons who harbored or concealed fugitive slaves. Anyone who helped fugitive slaves abscond would be subject to a $500 fine. Despite their personal views to the contrary and the lack of uniformity in state law on the issue, “antebellum state and federal judges felt obligated to enforce the Fugitive Slave Clause and the Fugitive Slave Act of For example, in Jones v. Van Zandt, the plaintiff, a citizen from Kentucky, brought an action against the defendant, a citizen from Ohio, for harboring and concealing fugitive slaves. Jones alleged that Van Zandt knew the persons were fugitive slaves yet concealed them. Van Zandt claimed that he lacked notice that the persons he helped were fugitive slaves and argued that, in order to be fined, proper notice was required. The Supreme Court found that verbal notice or acts evidencing knowledge of the fugitive slave's status was enough to establish requisite notice. Further, the Court found that an overt act intended to “elude the vigilance of the master or his agent, and which is calculated to attain such an object is a
B. State Personal Liberty Laws
Between 1780 and 1861, northern states passed personal liberty laws, some in response to the 1793 Act. Personal liberty laws were intended to interfere with slave owners' efforts to recapture slaves as well as protect free blacks and fugitive slaves from fugitive slave laws. The northern states wanted alleged fugitive slaves to have due process rights and a presumption of freedom.
Pennsylvania was at the forefront of enacting state laws to prevent the enforcement of the Fugitive Slave Act. The Pennsylvania law stated that if any person attempted to remove a “negro or mulatto” from the state with the intention of enslaving him or her, that person would be guilty of a felony, fined up to $3,000, and sentenced to hard labor. Moreover, Pennsylvania considered children born to fugitive slaves while in the state to be free.
Vermont and New York passed personal liberty laws during the 1840s. These laws gave those accused as fugitive slaves the right to trial by jury and the right to an attorney. Connecticut and Indiana also provided trial by jury on appeal. Connecticut's early protective statutes, although employing language in the preamble favoring the return of fugitive slaves, fined state officials who took part in fugitive slave cases.
In the South, South Carolina passed its Declaration of the Causes of Secession in 1860. In this declaration, the state noted that “fourteen of the States have deliberately refused for years past to fulfill their constitutional obligations, and we refer to their own statutes for the In response, Senator Benjamin Wade of Ohio posited, “[c]annot a sovereign State of this Union prevent the kidnapping of her free citizens because you have a right to claim a slave fleeing from Previously, the northern states took “positive action to remove the internal legal principles built upon the assumption that a person could be considered a This led to a schism on the Mason/Dixon Line and raised an issue of comity amongst states.
C. Prigg v. Pennsylvaniaand the 1850 Fugitive Slave Act
Prigg v. Pennsylvania was the main case challenging federal and state action under the 1793 Act. In 1832, Edward Prigg, a professional slave catcher, seized Margaret Morgan, a black woman, whose former owner, John Ashmore, let her live virtually free in Maryland despite never formally emancipating her. Because Morgan's parents were informally emancipated, “Morgan grew up thinking she was free and had always lived as a free woman in Thereafter, she moved to Pennsylvania, married a freeborn black man, and had children. At least one of the children was born in Pennsylvania.
Ashmore's heirs wanted Morgan returned as a slave and sent Prigg to capture her in Pennsylvania. The state refused to return Morgan because Prigg failed to comply with its personal liberty statute. Prigg applied to a state magistrate for certificates of removal, invoking the federal Fugitive Slave Act of 1793. These certificates would allow Prigg to remove Morgan to Maryland legally. When Prigg could not obtain the certificates, he took Morgan and her children to Maryland in violation of Pennsylvania law. What ensued was a long battle between Pennsylvania's personal liberty laws and the Ashmore heirs' ability to remove Morgan to Maryland as a slave under the 1793 Fugitive Slave Act. Pennsylvania indicted Prigg, who pled not guilty, and the state requested his extradition from Maryland. Upon Prigg's return, he was convicted for violating Pennsylvania's personal liberty law. Following his conviction, he appealed to the U.S. Supreme Court.
The Court considered two issues in Prigg. First, the Court considered whether the power to legislate under the Fugitive Slave Clause of the Constitution resided with the federal government or the states. Second, the Court considered whether federal law could oblige state officials to execute federal fugitive-slave law. Pennsylvania argued its law was based on the police powers that the Tenth Amendment secured.
The Court held that the 1793 Act's attempt to confer state magistrates jurisdiction over fugitive slaves was unconstitutional. Specifically, the Supreme Court Justices found that Congress had exclusive jurisdiction over fugitive slaves and that only federal courts could enforce rights under the 1793 Act. Legal scholar Paul Finkelman succinctly described the Court's holding as stating “that while state officials ought to enforce the federal Fugitive Slave Act, Congress could not obligate them to do so because Congress did not pay their
Justice Story's majority opinion ruled that the constitutional clause prohibited the states from freeing fugitive slaves. The majority found that, because the federal law was based on a specific constitutional provision, national in scope, the federal power over the provision was exclusive. Further, the Court found it inconsistent to state that federal power was exclusive, but then order the states to carry out the federal law. Therefore, the federal government was “bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Although the Court believed that state judges should execute the federal law, it recognized that the federal government had no power to require them to do so. The Court did recognize, however, that, in certain instances, the States could “regulate and remove fugitive slaves from their borders” under the police power.
The disjointed holdings in Prigg encouraged opposition, which resulted in continuing disparities in the application of the law in different states. For example, northern states continued to pass personal liberty laws in opposition to the Supreme Court's decision. Prohibitive personal liberty laws were passed in Connecticut, Massachusetts, Ohio, Pennsylvania, Rhode Island, and Vermont. After Prigg, “Northern resistance led to Southern demands for a more effective federal Because the Prigg Court held that mandatory state administration of the Fugitive Slave Act was unconstitutional, there were demands for the creation of a federal body to exercise authority over the return of fugitive slaves. Consequently, Congress passed the 1850 Fugitive Slave Act (1850 The 1850 Act provided for the appointment of a federal body to administer the system, a procedure for the deportation of slaves (that included the issuance of search and arrest warrants), the issuance of certificates of removal, the imposition of fines for interference, and the deputization of citizens to help with the administration of the system.
Under the 1850 Act, Congress authorized federal judges to appoint commissioners with “‘the powers that any justice of the peace or other magistrate of any of the United States' had to arrest, imprison, or bail offenders of any crime against the United Judges appointed commissioners in each federal circuit and granted them “concurrent jurisdiction with district and circuit court judges over fugitive slave With these grants of authority, commissioners could issue certificates of removal to claimants upon satisfactory proof that a person was a fugitive slave. It was believed that the commissioners, unlike state officials, would be unbiased in their application of the Fugitive Slave Acts. Many federal agents enforced the return of fugitive slaves. Slave owners went to the appropriate court in their home state to initiate the removal process. In state court, the slave owner would have to “establish that his slave had escaped and owed the owner service or The slave owner also “had to provide a general description of the During these proceedings,
[i]f the judge of the local court was satisfied that the first two points were correct, ... an official transcript was given to the claimant. The transcript, when presented to a fugitive slave commissioner ..., was to be received as conclusive evidence that the slave described in the transcript had escaped and owed service or labor to the claimant.
Fugitive slaves were not entitled to any rights during these proceedings. Frequently, slaves were denied the “right to a jury trial, the right of the accused to testify in his own behalf, and the right to habeas For example, congruent with the 1850 Act, statutes in South Carolina and Georgia provided “that the burden of legal proof was on free blacks to show that they were not Despite their efforts, the free states were unable to provide alleged slaves with any protection because of the free states' non-existent legal rights within the pro-slave states.
The state or local court provided the transcript to the commissioners within the federal district court and the commissioner would issue a warrant for the fugitive slave's arrest. The 1850 Act “empowered commissioners ..., as well as [federal] courts themselves, to issue certificates” of removal. The commissioners could also appoint persons, such as state officials, to execute warrants for the capture of fugitive slaves.
Once the warrants were issued for capture,
[t]he law charged federal marshals and their deputies to execute all warrants for the arrest of alleged fugitives issued by the commissioners and the courts and to be financially accountable should the fugitives escape. In pursuance of their duties, the marshals were authorized to summon and call to their aid the bystanders ... [b]ut, should the claimant so prefer, he might seize a fugitive on his own responsibility without a warrant.
Following the adoption and enforcement of the 1850 Act, “for the first time, [the U.S. had] a large scale, relatively efficient federal system for the forced removal of people from one place to another on the basis of rather scanty proof, with minimal or no judicial oversight, and with only the most flimsy constitutional The underlying flaw with the 1850 Act was that it created a federal enforcement mechanism that allowed the preferences of slave-holding states to override those of the free states. The delegation itself was not problematic; rather, more troublesome was the federal preference to enforce a system that did not recognize what we now know as equal protection or individual liberty interests of the slaves.
D. The Impact of the Fourteenth Amendment's Reconstruction Clause on the Fugitive Slave Acts and Early Immigration Law
After passage of the Reconstruction Amendments, the states no longer had supreme authority over the forced migration of African American slaves. Instead, they were required to treat all persons equally under the law. Following the Dred Scott decision and passage of the Fourteenth Amendment, Reconstruction radically changed the federal-state balance.
At the time that Congress and the States passed the 1850 Act and personal liberty laws, there were numerous questions surrounding the boundaries of state sovereignty in relation to the federal government. States saw it within their authority to invoke their police power to control migration at a state level. For the first one hundred years of the country's existence, states heavily regulated immigration. Many states had their own naturalization and immigration laws and laws were passed to protect states from undesirable classes of immigrants. These laws applied to immigrants as well as to citizens of other states.
The 1857 Dred Scott decision denied the possibility of citizenship to all slaves, ex-slaves, and descendants of slaves and also prevented Congress from prohibiting slavery in the territories. This case “‘made freedom local’ and ‘it made slavery national, in the sense that slavery would be legal in any part of the United States where a state government had not abolished it.”’ In 1868, Congress passed the Thirteenth and Fourteenth Amendments, which effectively overturned Dred Scott, thus providing citizenship for all African Americans.
The Reconstruction Amendments made slavery unconstitutional and, in principle, ensured equality under the law. During the Fourteenth Amendment's passage, Republican senators argued that freed slaves should have the full and equal benefits of the law. The fear was that failure to guarantee equal protection could place the “ex-slave ... in a social limbo” and create tiered citizenship.
The Fourteenth Amendment's Equal Protection Clause, on its face, ensures that all persons are equal under the law. Federal immigration law, however, emerged as an exception to this general rule. Racial discrimination of Chinese immigrants challenged the Amendment's boundaries in California.
California's legislature, after having numerous taxes targeted at Chinese immigrants struck down as unconstitutional, switched tactics and passed laws in the 1870s under their police power, focusing on character and conduct. In actuality, the laws targeted Chinese women and the alleged goal was to keep lewd women from migrating into the state.
State regulation of immigration faltered in In re Ah Fong when a California district court found a California statute regulating the immigration of Chinese women unconstitutional. Circuit Justice Field posited that states could not exercise state police powers for “corrupt uses,” such as discrimination against free blacks. Justice Field indicated that previous state police powers were premised upon the institution of slavery and the exclusion of black slaves. In the wake of the Civil War, he stated that “no such power would be asserted, or if asserted, allowed, in any federal With the emancipation of slaves, states shifted their use of police power from a pretext for discriminating against African Americans to a pretext for the discrimination of Chinese immigrants. Under the Fourteenth Amendment, this was as an invalid exercise of a state's police power. Justice Field remarked that if Chinese migration “is to be stopped, recourse must be had to the federal government, where the whole power over this subject
Rather than striking down state discriminatory laws against immigrants, the federal government passed similar laws. At the time, the equal protection provisions of the Fourteenth Amendment were not applicable to the federal government. The Chinese exclusion laws of the 1880s marked the federal government's entrance into prominent regulation of immigration. These laws were passed in reaction to the economic depression in California and concerns over Chinese laborers taking jobs away from native-born Americans.
The two main cases challenging the Chinese exclusion laws were Chae Chan Ping v. United and Fong Yue Ting v. United States. In Chae, the Court “held that a returning resident non-citizen could be excluded if Congress determined that his race was undesirable--or for any other Thus, the Court upheld a federal statute that prohibited unskilled migratory workers of Chinese descent from migrating to and remaining in the United States. Although this result is not incongruent with the modern understanding of constitutional equal protection, the Supreme Court found that Congress and the executive branch had plenary powers over immigration and believed that the judiciary should not intervene at the time. Moreover, in Fong, the Court determined
[d]eportation or exclusion of aliens “may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts.”Imposing the burden of proof on the Chinese person, and providing for testimony of white witnesses only “is within the acknowledged power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the courts of its own
Chae sustained Congress's plenary power over immigration, whereas Fong affirmed congressional power to pass deportation statutes excluding non-citizens based on race or for any other reason. Both cases affirmed that federal immigration power superseded the equal protection rights of immigrants.
Here, we see the affirmation of the federal government's exclusive power over immigration, even in upholding racial exclusionary policies. This is evident despite that, under equal protection norms, state discrimination against non-citizens receives greater scrutiny. Once the Court chose to uphold federal immigration laws, equal protection norms were not given much attention.
States' use of police powers to exclude Chinese immigrants declined as southern states lost the ability to use police powers to control the migration of free African Americans and an increase of federal laws aimed at excluding Chinese immigrants replaced unconstitutional state attempts. If a person was in the country unlawfully, the violation gave the federal government the right to devalue a Chinese immigrant as a person and exploit his or her willingness to work at no cost. Thus, the federal immigration system's early foundation, instead of striking down discriminatory state immigration laws, simply moved discriminatory laws to the federal level where they continued against Chinese immigrants.
In analyzing federal power over immigration, a commentator noted that
[i]t was no coincidence that greater legal freedoms for African Americans were tied to Chinese misfortunes. As one historian observed, “[w]ith Negro slavery a dead issue after 1865, greater attention was focused [on immigration from China].” Political forces quickly reacted to fill the racial void in the political arena. In California, partisan political concerns, along with labor unionism, in the post-Civil War period figured prominently in the anti-Chinese movement.
The Supreme Court explored the relationship between the treatment of African Americans and other racial minorities in Plessy v. Ferguson. Justice Harlan, dissenting from the “separate but equal” holding, made the first declaration that “[o]ur Constitution is color-blind.” He also noted the irony that the “separate but equal” doctrine applied to blacks, who unquestionably were part of the political community, but not Chinese immigrants, “a race so different from our own that we do not permit those belonging to it to become citizens of the United States” and who generally are excluded from entering the country. Justice Harlan, although promoting legal equality for citizens, continued to display a strong racial bias.