Gateway to Freedom: The Hidden History of the Underground Railroad (6 page)

When the War of Independence ended, 60,000 loyalists, including some 4,000 blacks—those formerly enslaved in the city, others who had fled there during the conflict, and slaves brought by loyalist owners—were behind British lines in New York City. One who left a record of his experiences was Boston King, a slave in the South Carolina low country who fled to Charles Town in 1780 when the British invaded the colony. Thanks to them, he later recalled, “I began to feel the happiness of liberty, of which I knew nothing before.” King soon made his way to New York City, where, he wrote, the restoration of peace “diffused universal joy among all parties, except us, who had escaped from slavery.” Rumors spread that fugitive slaves “were to be delivered up to their masters, . . . fill[ing] us all with inexpressible anguish and terror.” Slaveowners appeared in the city, hoping to retrieve their slaves. The Treaty of Paris of 1783 specified that British forces must return to Americans property seized during the war, but Sir Guy Carleton, who had succeeded Clinton as British commander, insisted that this provision did not apply to slaves who had been promised their freedom.
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The British had offered liberty to slaves for strategic reasons, not abolitionist sentiments. “Practice determined policy,” writes the historian Christopher Brown, but, he adds, “policy, over time, drifted toward becoming a matter of principle.” When Carleton met with George Washington in May 1783 to implement the peace treaty, the American commander asked about “obtaining the delivery of Negroes and other property.” Washington, in fact, hoped the British would keep a lookout for “some of my own slaves” who had run off during the war. He expressed surprise when Carleton replied that to deprive the slaves of the freedom they had been promised would be a “dishonourable violation of the public faith.”

On Carleton’s orders, when British ships sailed out of New York harbor in 1783, they carried not only tens of thousands of white soldiers, sailors, and loyalists, but over 3,000 blacks, most of whom had been freed in accordance with British proclamations. Carleton kept careful records of most of them and provided Washington with a “Book of Negroes,” listing 1,136 black men, 914 women, and 750 children who left New York City with his forces. The largest number originated in the South, but about 300 were from New York State. They ended up in Nova Scotia, England, and Sierra Leone, a colony established by British abolitionists on the west coast of Africa later in the decade. Thanks to Carleton, Boston King secured his freedom. So did Henry and Deborah Squash, a married couple who had been the property of George Washington. For years, the British decision to remove American slaves and their refusal to compensate the owners remained a sore point in Anglo-American relations.
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The question of fugitive slaves also proved contentious within the new republic. During and after the War of Independence, several northern states launched the process of abolition. Vermont, at the time a self-proclaimed independent republic with few if any slaves, was first to act, in 1777 prohibiting slavery in its constitution. Massachusetts and New Hampshire, where slavery ended via court decisions, quickly followed, along with Pennsylvania, Connecticut, and Rhode Island, which enacted laws for gradual emancipation. These measures generally provided for the return of fugitive slaves, although Massachusetts offered them asylum.
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The Articles of Confederation, the national frame of government from 1781 to 1789, contained no provision relating specifically to runaway slaves, although it did require the return of individuals charged with “treason, felony, or other high misdemeanor.” The first national law relating to fugitive slaves was the Northwest Ordinance of July 1787, which prohibited slavery in federal territories north of the Ohio River but also provided that slaves escaping to the region from places where the institution remained legal “may be lawfully reclaimed.” The following month, as the constitutional convention neared its conclusion, Pierce Butler and Charles C. Pinckney of South Carolina proposed a similar provision. With little discussion, the delegates unanimously approved what became Article IV, Section 2:

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 may be due.
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Along with the clause counting three-fifths of the slave population in apportioning congressional representation among the states and the one delaying the abolition of the international slave trade to the United States for at least twenty years, the fugitive slave clause exemplified how the Constitution protected the institution of slavery. As Pinckney boasted to the South Carolina House of Representatives during its debate on ratification, “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.” A delegate to the Virginia ratifying convention agreed: the Constitution offered “better security than any that now exists.” This should be considered something of an exaggeration, as the return of fugitives across state lines was hardly unknown. Some critics charged that the purpose of the clause was to destroy the “asylum of Massachusetts.”
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The fugitive slave clause represented a significant achievement for slaveowners. In the
Somerset
decision of 1772, Lord Mansfield, the chief justice of England, had freed a slave who sued for his liberty after being brought by his owner from Boston to London. The idea that slavery was “so odious” that a person automatically became free when he or she left a jurisdiction where local law recognized the institution quickly entered the English common law and was embraced by antislavery Americans as the “freedom principle.” But the U.S. Constitution established as a national rule that slaves did not gain their liberty by escaping to free locales, and assumed that the states would cooperate in their return. The fugitive slave clause strongly reinforced the “extraterritoriality” of state laws establishing slavery—their reach into states where the institution did not exist. Nonetheless, as the antebellum era would demonstrate, its ambiguous language left it open to multiple interpretations. On key questions the Constitution remained silent: whether the responsibility for “delivering up” runaway slaves rested with the state or federal governments, and what kind of legal procedures should be required for their rendition. A dispute over these questions soon ensued between Pennsylvania and Virginia, leading in 1793 to the passage of the first national law on the subject of fugitive slaves.
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Pennsylvania’s gradual emancipation law of 1780 freed the children of slaves born after March 1 of that year and required owners to register living slaves or they would automatically become free. It also recognized the right of out-of-state owners to recover fugitives. A Pennsylvania slave named John Davis gained his freedom because his owner, a Virginian, failed to register him. Nonetheless, the owner brought Davis from Pennsylvania to Virginia. Davis escaped, and the owner hired three Virginians to pursue him. They seized Davis in Pennsylvania and removed him from the state. Thomas Mifflin, Pennsylvania’s governor, requested the extradition of the three men as kidnappers. Virginia’s governor refused, and Mifflin asked George Washington, now president, to have Congress clarify how fugitive slaves were to be recovered. The result was the Fugitive Slave Act of 1793, which remained the only federal law on the subject until 1850.
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The brief 1793 enactment consisted of four sections, the first two of which dealt with fugitives from justice. The portion relating to slaves provided that an owner or his agent could seize a runaway and bring him or her before any judge or magistrate with “proof” (the nature unspecified—it could be a written document or simply the word of the claimant) of slave status, whereupon the official would issue a certificate of removal. Any person who interfered with the process became liable to a lawsuit by the owner.

The law made rendition essentially a private matter, identifying little role for the state or federal governments. It put the onus on the owner to track down and apprehend the fugitive, frequently a difficult and expensive process. On the other hand, it offered no procedural protections allowing free blacks to avoid being seized as slaves—there was no mention of the accused fugitive having the right to a lawyer or a jury trial, or even to speak on his own behalf. Nothing in its language, however, barred states from establishing their own, more equitable procedures to deal with accused fugitives, and as time went on, more and more northern states would do so. But the law firmly established slavery’s extraterritoriality. A state could abolish slavery but not its obligation to respect the laws of other states establishing the institution. Indeed, as Samuel Nelson, a justice of New York’s Supreme Court and later a member of the U.S. Supreme Court majority in the
Dred
Scott
decision, noted in 1834, because of the Fugitive Slave Act of 1793, “slavery may be said still to exist in a state” even after it had been abolished.
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Meanwhile, as other northern states moved toward abolition, slavery in New York persisted. In 1777, when New York’s Provincial Congress drafted a state constitution, Gouverneur Morris, a patriot who would later be a signer of the federal Constitution and ambassador to France, proposed that the state document include a provision for gradual emancipation, “so that in future ages, every human being who breathes the air of this state, shall enjoy the privileges of a freeman.” Nothing came of the idea, but with the establishment of American independence, the issue became more pressing. Should slavery be strengthened, given the disruptions that had occurred, or should it be abolished? New York City’s Common Council embraced the former approach, enacting a law in 1784 “regulating Negro and mulatto slaves.” The following year, the question of slavery’s future came before the state legislature, where it became embroiled in a debate over the rights of free blacks. The House passed a bill for gradual abolition, coupled with a prohibition on free blacks voting, holding office, or serving on juries. The Senate at first refused to agree to these restrictions, which had no counterpart in the abolition laws of other northern states, but eventually accepted the ban on black suffrage. The state’s Council of Revision then vetoed the bill on the grounds that it violated the revolutionaries’ own principle of no taxation without representation.

Despite this impasse, antislavery sentiment had grown strong enough that the legislature in 1785 moved to loosen the laws regulating private manumission. In the colonial era, such measures had been meant to discourage the practice by demanding that the owner post a large monetary bond. The new law dropped this provision, simply requiring a certificate from the overseers of the poor that the slave was capable of supporting himself or herself (thus prohibiting owners from relieving themselves of responsibility for slaves who could not perform labor, such as small children and elderly and infirm adults). By the time slavery ended in New York, the majority of slaves who became free had done so via manumission.
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At the same time, the first organized efforts to abolish slavery in New York made their appearance. In 1785, a group of eighteen leading citizens founded the New York Manumission Society. A majority were Quakers, but the society also included some of the city’s most prominent patriots of other denominations, including Governor George Clinton, Mayor James Duane, and Alexander Hamilton. John Jay served as the organization’s president until he left the city in 1789 to become chief justice of the United States. As suggested by its full name—the New York Society for Promoting the Manumission of Slaves, and Protecting Such of Them as Have Been or May be Liberated—the group assumed the role of guardian of the state’s slaves and freed blacks. Compared to later abolitionist organizations, the Manumission Society was genteel, conservative, and paternalistic. It denied membership to blacks and devoted considerable effort to warning them against “running into practices of immorality or sinking into habits of idleness,” such as hosting “fiddling, dancing,” and other “noisy entertainments” in their homes. Its constitution forthrightly condemned “the odious practice of enslaving our fellow-men.” But it claimed that because blacks were afflicted with poverty and “hostile prejudices,” and “habituated to submission,” abolition must come gradually and whites must take the lead in securing it: “the unhappy Africans are the least able to assert their rights.”
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The Manumission Society eventually grew to a few hundred members, including merchants, bankers, shipowners, and lawyers. Many were themselves slaveholders, including half the signatories on the society’s first legislative petition, in 1786. John Jay himself owned five slaves while he headed the organization. (Jay later explained that he purchased slaves in order to free them, after “their faithful services shall have afforded a reasonable retribution.”) Nonetheless, the society’s members were the only whites actively campaigning for an end to slavery. They lobbied the legislature, but also did much more. Over the course of its life (it survived until 1848), the Manumission Society offered legal assistance to blacks seeking freedom, worked strenuously to oppose the kidnapping of free blacks and slave catching in the city, brought to court captains engaged illegally in the African slave trade, and sponsored antislavery lectures and literature. It encouraged individuals to manumit their slaves and monitored the fulfillment of promises to do so. It attempted, unsuccessfully, to persuade the city’s newspapers to stop printing advertisements for slave auctions and fugitive slaves, which promoted the image of blacks as property rather than persons. And as one of its first actions, it established the African Free School, which became the backbone of black education in the city. Eventually, seven such schools were created, from which emerged leading nineteenth-century black abolitionists, including James McCune Smith and Henry Highland Garnet.