The “Sanctuary Cities” of Lincoln’s Day

So-called “sanctuary cities” (and counties and states, not to mention college and university campuses) have been a hot political topic in the USA in recent years. These are those local and state governmental units which have enacted laws and/or adopted policies which limit their cooperation with the Federal Government’s efforts to enforce immigration law as it pertains to undocumented immigrants. I do not wish to discuss here whether such local and state efforts are legal or not, nor whether they are beneficial or harmful, but rather pose a simple historical question: Did Abraham Lincoln and his contemporaries face any similar issues, and if so, how did they respond?

They most certainly did face similar issues. One arose in 1832 when a young Lincoln was first getting involved in politics. The State of South Carolina declared the federal tariff null and void within her boundaries. President Andrew Jackson responded with firmness but also conciliation to resolve the crisis, making the case that “nullification” was subversive of the Constitution and tantamount to secession. South Carolina relented, but Jackson himself foresaw that a larger issue remained unresolved, writing in a private letter: “the tariff was only the pretext, and disunion and a Southern confederacy the real object. The next pretext will be the negro, or slavery, question.”

It would be just that slavery question, and more specifically the issue of fugitive slaves, which would give rise to another situation with remarkable parallels to our modern-day “sanctuary” issue. The founders had included in the Constitution the very controversial fugitive slave clause, granting slaveowners the legal right to have runaway slaves returned to them. In order to codify this clause, Congress passed Fugitive Slave Acts in 1793 and again in 1850.

Many northerners detested these laws because they did not adequately protect the rights of fugitive slaves nor of free blacks, the latter of whom might be kidnapped and made slaves (an extreme case of this is related in the movie 12 Years a Slave). For example, these laws did not provide for a trial by jury for the person alleged to be a fugitive slave; the 1850 act did not even allow him to testify on his own behalf. All the supposed owner had to do was provide the testimony of a witness that the person was his legal slave, creating a system which could easily be abused. The 1850 act essentially obligated all US citizens to assist in the capture of fugitive slaves; those who refused could be fined or imprisoned. It even established a financial incentive for magistrates to rule that a person was a fugitive slave rather than a free person, since in the latter case he received only half the compensation.

Northern states and cities fought back against the apparent injustice of the fugitive slave laws by passing “personal liberty laws”. These became especially prevalent after Congress passed the notorious Kansas-Nebraska Act in 1854, reversing the hallowed Missouri Compromise of 1820. States with personal liberty laws included all six New England states plus New York, Pennsylvania, Ohio, Michigan, Indiana, and Wisconsin. [Perhaps not surprisingly, our own era’s “sanctuary” laws are sometimes called “civil liberty” laws.]

These personal liberty laws included a variety of measures designed to prevent free blacks from being taken into bondage and runaway slaves from being returned without a fair hearing and clear evidence, and also to protect the rights of people who tried to help fugitive slaves. There were, for example, laws which guaranteed trials by jury for fugitive slaves, either directly or on appeal; provided attorneys for alleged fugitives; prohibited slavecatchers from utilizing jails; and forbad state or local officials from cooperating in the capture or return of fugitive slaves. Sound familiar?

Not surprisingly, slaveowners and the slave states objected to these personal liberty laws. One case which made it all the way to the U.S. Supreme Court was Prigg v. Pennsylvania, in which the Court sided with a slavecatcher and ruled that the federal Fugitive Slave Act took precedence over Pennsylvania’s personal liberty law under the supremacy clause of the Constitution. By the way, did you catch the irony here? The southern states, normally the champions of “States’ rights”, were in this situation arguing against States’ rights and for the pre-eminence of federal law. In fact, these state personal liberty laws would later be cited by some of the southern states as one of their justifications for secession.

Given all this, how did Lincoln respond to this issue of personal liberty laws? In his famous Peoria speech of October 1854, he advocated for a restoration of the Missouri Compromise and criticized the extremists on both sides: those in the South who “claim the constitutional right to take to and hold slaves in the free states – demand the revival of the slave trade; and demand a treaty with Great Britain by which fugitive slaves may be reclaimed from Canada”, but also those in the North who “defy all constitutional restraints, resist the execution of the fugitive slave law, and even menace the institution of slavery in the states where it exists”.

Over the next several years, as the tensions in the country grew ever stronger, Lincoln continued to consistently support the enforcement of the fugitive slave law. In the first of his famous 1858 debates with Stephen Douglas, the one at Ottawa, Douglas surprised Lincoln with seven pointed questions, the very first one of which was: “I desire to know whether Lincoln to-day stands, as he did in 1854, in favor of the unconditional repeal of the fugitive slave law?” This was a gross misrepresentation of Lincoln’s position – in Lincoln’s words, proving “a horse chestnut to be a chestnut horse” – but as such it demonstrates the political importance of the issue.

Lincoln answered Douglas at the second debate in Freeport. He first answered the direct question, and false charge: “I do not now, nor ever did, stand in favor of the unconditional repeal of the fugitive slave law.” But later on he expanded on his answer: “I have never hesitated to say, and I do not now hesitate to say, that I think, under the Constitution of the United States, the people of the Southern States are entitled to a Congressional Fugitive Slave Law. Having said that, … I think it should have been framed so as to be free from some of the objections that pertain to it, without lessening its efficiency.” Among the objections, he no doubt had in mind the lack of a trial by jury, as we shall see later.

The next year, the Ohio Republican State Convention adopted a platform which included the following plank: “A repeal of the atrocious Fugitive Slave Law”, and New Hampshire Republicans adopted a measure labeling obedience to the fugitive slave law a crime. Lincoln was greatly alarmed and sent letters off to several prominent Republicans expressing his regret at these developments and his strong opinion that such proposals must be kept out of the national convention the following year lest it destroy the Republican cause. This kind of proposal, Lincoln wrote, would be “viewed by many good men, sincerely opposed to slavery, as a struggle against, and in disregard of, the constitution itself”.

In a letter to Salmon Chase, Lincoln explained why he thought the fugitive slave law was constitutional: “The U.S. constitution says the fugitive slave ‘shall be delivered up’ but it does not expressly say who shall deliver him up. Whatever the constitution says ‘shall be done’ and has omitted saying who shall do it, the government established by that constitution … is vested with the power of doing; and congress is, by the constitution, expressly empowered to make all laws which shall be necessary and proper for carrying into execution all powers vested by the constitution in the government of the United States.”

Many others in the Republican Party must have agreed with Lincoln, because the platform adopted at the national convention in 1860 – the same convention which would surprisingly nominate Lincoln as its candidate for President – made no mention of the fugitive slave law. The platform also pledged to not interfere with slavery in those states where it already existed, but only to fight against its extension into new areas. Despite this relatively moderate stance, the slave states threatened to secede should Lincoln win the election.

After Lincoln’s victory, therefore, the four months until his inauguration marked the last chance to avoid disunion. In letters to key persons in Washington, Lincoln remained firm in his stance against slavery extension but also made clear that he was still “for an honest [e]nforcement of the constitution – fugitive slave clause included”. He sent to his choice for Secretary of State, the powerful William Seward, some suggested compromise measures to resolve the crisis. Among these was a recommendation to amend the fugitive slave law to grant a trial by jury to the fugitive. The southerners in Congress accepted this … but only if the jury came from the state from which the fugitive had fled, instead of the state where he was found. This change made it unacceptable to the Republicans, of course, and the matter died there.

All attempts at compromise having failed, and seven southern states having already seceded from the Union, Lincoln addressed a very tense nation on Inauguration Day. In his inaugural address he reiterated his commitment to uphold the fugitive slave law given that it was “as plainly written in the Constitution as any other of its provisions”. He noted that “there is some difference of opinion whether this clause should be enforced by national or by state authority”, but this was immaterial; “if the slave is to be surrendered, it can be of but little consequence to him, or to others, by which authority it is done”. He also made the eminently practical point that if the South separated, this would make the situation worse for them vis-à-vis fugitive slaves as well as for the North vis-à-vis the slave trade: “The foreign slave trade, now imperfectly suppressed, would be ultimately revived without restriction, in one section; while fugitive slaves, now only partially surrendered, would not be surrendered at all, by the other.”

Lincoln’s appeals failed to convince, and within six weeks, the Civil War began. As secession turned into armed insurrection against the national authority, the issues surrounding fugitive slaves began to evolve. The Lincoln administration continued to support the enforcement of the fugitive slave law in the loyal border states and even in unionist strongholds in the seceded states, but under the “Confiscation Acts” of 1861 and 1862 Union forces were first authorized to seize any slaves being used to support the Confederate cause, and later to free slaves in conquered territory, prohibit the return of fugitive slaves, and even employ blacks to help suppress the rebellion.

By the time of Lincoln’s Emancipation Proclamation in January 1863, the Union policy of confiscation and military emancipation had essentially curtailed the operation of the fugitive slave law. Congress debated formally repealing the Fugitive Slave Act in 1863 and finally did so in June 1864, thus ending once and for all the abuses committed under it, and thereby also eliminating the need for personal liberty laws in the North.

In summary, Lincoln’s policy and practice when he did not agree with a law was to comply fully with it while working both within and without the system to bring about changes to the political situation and/or public opinion which might lead to a modification of the law, all the while guided by the ideal laid out by the founders – although imperfectly realized in their time – namely liberty and equality for all, irrespective of skin color or national origin. This was his approach with the fugitive slave law and also with slavery in general, as well as with other laws such as those limiting the rights of foreign immigrants.

It should be noted that this discussion focuses on Lincoln’s official, public responses to the issue of fugitive slaves, which were very measured as they were constrained by the law and by public opinion. On a personal level, Lincoln detested slavery and the abuses committed under the fugitive slave act as much as any abolitionist.

Kevin J. Wood

February 1, 2025