renewed from year to year, until at last it came before the people in 1857, when it failed to obtain the necessary majority,37 and so put an end to all hopes of securing an opening for slavery in Southern California. THE CALIFORNIA FUGITIVE-SLAVE LAW. 1138 The only concession to slavery granted by the laws of California was the bill passed in 1852 entitled, "An Act respecting fugitives from labor and slaves brought to this State prior to her admission into the Union. The first three sections of this statute charged the state courts with the enforcement of a fugitive-slave law, whose provisions differed in no essential respects from those of the Federal law passed as one of the compromise measures by which California was admitted to the Union. All the objectionable features which made that law so odious to the free states were repeated in the California statute. The owner or his agent was empowered to seize the fugitive, or obtain a warrant for his arrest to be granted by any judge, justice or magistrate of the state. The same summary procedure at the hearing to obtain the certificate authorizing removal was sanctioned, and the testimony of the fugitive on his own behalf was not admitted. Persons obstructing the arrest, assisting in escape, harboring or concealing such a fugitive were subject to a fine of not less than $500, imprisonment not less than two months, and civil damages to the claimant of $1000. Officers who neglected to enforce the law were liable to a fine of from $500 to $1000, and were subject to removal from office; if the fugitive escaped through their neglect, assent, or contrivance, the officer or officers responsible must pay the claimant the value of the slave.39 The real motive for the passage of this law was not the desire to secure the return of fugitive slaves. Indeed, it is doubtful whether any genuine cases of this kind ever occurred in California, as the difficult and expensive trip from the slave 37 Davis, op. cit., p. 84. 38 Statutes of California, 1852, p. 77. 39 Ibid., 1852, pp. 67-8. states to the Pacific Coast would have been an impossible achievement for a newly escaped slave. But a number of cases had come before the courts in which the questions of the right of a master to retain or remove his former slave from the state were raised. In the first cases which occurred soon after the admission of the state, the alcalde of San Francisco returned the slave to his master, while the Sacramento judge freed him on the ground that slavery was prohibited by the constitution. In the following year there were two cases where attempts were made to remove slaves from the state. 40 In both instances this was prevented by the courts. In the first of these cases, occurring in April, a San Francisco judge decided that the slave whose master wished to remove him was entitled to his freedom, since he had been voluntarily brought to the state after its admission. A few months later a case of a mulatto child, who had been brought to the state in 1849, came before the Los Angeles courts. The master was allowed to retain the custody of the child acting in the capacity of guardian, but was required to give a bond not to remove her from the county. It is evident that, as interpreted by the California courts, the Federal fugitive-slave law would not permit the removal of these numerous negro "servants" from the state. 66 The real object of the law of 1852 was embodied in the fourth section, which provided that, "Any person or persons held to labor or service in any State or Territory of the United States of America, and who shall refuse to return to the State or Territory where he or they owed such labor or service, upon the demand of the person or persons, his or their agent, or attorney, to whom such service or labor was due, such person or persons so refusing to return, shall be held and deemed fugitives from labor within the meaning of this Act, and all the remedies, rights, and provisions herein given claimants of fugitives who escape from any other State into this State are hereby given and conferred upon claimants of fugitives from labor within the meaning of this section."'41 40 San Francisco Herald, April 1, 2, 1851; Hayes Scrap Books, Los Angeles, No. 28. (Unpublished books of manuscripts and clippings in the Bancroft Library, University of California.) 41 Statutes of California, 1852, p. 69. When the bill was introduced in the assembly, this portion was the subject of what the correspondent of a San Francisco paper characterizes as "a keen, vehement, and powerful debate." It was pointed out that this practically introduced slavery into the state for an indefinite period. An amendment was passed which limited the time for the recovery of such slaves to one year from the passage of the bill. Out of respect for the constitutional prohibition of involuntary servitude within the state, it was provided that masters could reclaim such so-called fugitives only for the purpose of removal from the state.*2 43 Although the passage of the bill was hotly contested in the senate, all efforts to secure some scant measure of justice for the negro failed. The amendment providing that the person arrested should have the right to be heard by counsel, and to enforce attendance of witnesses as in cases of arrest for crimes, was lost. Many of the negroes who had been brought to the state under indentures had honestly earned their freedom. The provisions of this section of the law permitted their recapture and return to slavery. Broderick's strenuous efforts to procure the passage of an amendment exempting such persons from the operations of the law, were unsuccessful. The most weighty argument in support of the measure was that which contended that the United States constitution protected property of citizens in all territory under its jurisdiction, and that the California constitution provided for the future, but did not effect property rights existing at the time of its adoption. The time allowed for the recovery of slaves was extended by the legislature of 1853 and 1854; thus for six years after the people had framed their Declaration of Rights prohibiting slavery or involuntary servitude, negroes were held in bondage,-were even bought and sold in California. A few months after the passage of the law, it was held to be constitutional in the case of three negroes claimed by a man named Perkins. These darkies, who were brought to California in 1849 under an agreement to work for their freedom, declared 42 Daily Evening Picayune, February 6, 1852. 43 Senate Journal, 1852, p. 277. 44 San Francisco Herald, February 8, 1852. that they had worked the stipulated time in fulfillment of their contract. Their master had returned to Tennessee, but on the passage of the law sent out an order for their apprehension. Evidently the negroes had made good use of their brief period of freedom, for, when arrested, they had a span of mules, a wagon, and about four hundred dollars in money." 45 The captives made a determined fight for their freedom. They were arrested in Placer County and brought to Sacramento, where a justice of the peace granted the certificate authorizing their removal from the state. On the refusal of the County Court to release them on a writ of habeas corpus, they appealed their case to the Supreme Court, 46 where opinions on the constitutionality of the law were written by Chief Justice Murray and Justice Anderson. Justice Murray cited instances in which Federal statutes had been reinforced by state laws, and declared that the state had concurrent jurisdiction in slavery legislation by virtue of its police powers. Since the status of the fugitive from service must finally be determined in the state where his services were claimed, the law did not violate the right of trial by jury by providing for the removal of the person without trial. Property rights in this class of persons were recognized by the Constitution of the United States, which became the supreme authority after the conquest of the territory, and the state prior to her admission had no authority to impair any rights or obligations subsisting under the Federal constitution. Justice Anderson went even further in emphasizing this property right in slaves, forestalling the Dred Scott decision. in declaring that the temporary residence of a slave in free territory did not change his servitude. Moreover, he asserted that legislative enactment was necessary in order to make operative the clause of the Constitution of California prohibiting slavery. Since the legislature had failed to emancipate the slaves in the state at the time of her admission, their masters still had a right to their services. By order of the court the 45 The Pacific, June 18, 1852; Herald, June 4, 1852. 46 In re Perkins, Cal. 429-459. three men were remanded to the custody of the officer, to be taken from the state and returned to their former owner." 47 We find records of similar cases of the enforcement of the law, and doubtless many negroes, realizing the hopelessness of their position, returned to slavery without a protest. Some were able to buy their freedom, and in a few instances sympathizing friends paid the money necessary to insure their liberty. A curious case of this kind occurred in Sacramento. For several days this advertisement appeared in the Democratic State Journal: "Negro for Sale.-On Saturday the 26th inst., I will sell at public auction a Negro Man, he having agreed to said sale in preference to being sent home. I value him at $300, but if any or all of his abolition brethren wish to show that they have the first honorable principle about them, they can have an opportunity of releasing said negro from bondage by calling on the subscriber, at the Southern House, previous to that time and paying $100. I make this great sacrifice in the value of the property, to satisfy myself whether they prefer paying a small sum to release him, or play their old game and try to steal him. If not redeemed, the sale will take place in front of the Southern House, 87 J St., at 10 o'clock of said day." To the credit of the "abolition brethren" of the little humpback negro, who had been earning his living by blacking boots, it is recorded that the hundred dollars were promptly paid.. Another such example was that of Judy, an old negro woman who had become a familiar figure about town at Los Angeles. She had been her own mistress for some time, but on the passage of this law, steps were taken to reclaim her and return her to the South. B. D. Wilson, the first county clerk of Los Angeles, paid five hundred dollars to save her from this fate.49 In other instances the negroes made agreements with their masters by which they earned their freedom. Tinkham says there were many such cases in Stockton." The first recorded document of Butte County was a negro manumission paper, and Dr. Duniway reports that in his investigation of the early California 47 In re Perkins, 2 Cal. 443-459. 48 The Pacific, June 25, 1852. 50 49 Hayes Scrap Books, Los Angeles, I, No. 28. 31 |