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The New Fugitive Slave Laws

John Moore/Getty Images
Jugs of water left along migrant trails by the humanitarian aid group No More Deaths, for which Scott Warren volunteers, near Ajo, Arizona, May 10, 2019

In the 1840s, an elderly abolitionist Ohio farmer, John Van Zandt, lost all his property for assisting nine runaway slaves from Kentucky and thus violating state and federal fugitive slave laws. His case was litigated all the way to the US Supreme Court, where it was argued by leading antislavery politicians Salmon Chase, Lincoln’s future Secretary of Treasury and later Chief Justice of the Supreme Court, and William H. Seward, Lincoln’s Secretary of State. They lost that legal battle but would eventually win the political war against Southern slavery. Van Zandt himself died in 1847, refusing to divulge the whereabouts of the slaves he had assisted, his small estate liable for the penalties incurred by his courageous actions. As Chase put it, Van Zandt had gone to “another bar where aid to the weak and suffering will not be imputed as a crime.” One does not have to look far to find our contemporary Van Zandts—or renewed attempts to criminalize humanitarian aid. 

Scott Warren, a volunteer for the group No More Deaths that provides relief, usually in the form of supplies of food and water left in desert areas, to migrants attempting to cross the harsh, arid southern border of the United States, was arrested last year in Arizona for rendering care to two dangerously dehydrated and injured migrants. His case was brought to trial recently. Warren was charged with providing food, water, clothes, medical care, and shelter to two undocumented immigrants attempting to cross the Sonoran Desert. Last month, a jury in Arizona refused to convict him, eight finding him not guilty and four guilty. 

Warren, an academic by profession, was—like many volunteers with No More Deaths, Ajo Samaritans, and other humanitarian aid groups working in the desert—motivated simply to save lives. He told The Intercept that he had come across human remains during his hikes in wilderness areas—a shocking spectacle that moved him much as the abolitionist editor Elijah Lovejoy was moved by the “savage barbarity” he witnessed in St. Louis in 1836 when a black man was burned to death by a white mob. Lovejoy wrote an editorial condemning the appropriately named Judge Lawless for setting the dead man’s lynchers free, an exercise of free speech for which Lovejoy was driven out of town (and he was later murdered by proslavery rioters).

At the end of his trial, Scott Warren remarked:

I do know what the effect of all this has been and will continue to be: a raising of public consciousness, a greater awareness of the humanitarian crisis in the borderland, more volunteers who want to stand in solidarity with migrants, local residents stiffened in their resistance to border walls and the militarization of our communities, and a flood of water into the desert at a time when it is most needed.

Fifteen US senators have asked the Department of Justice to drop all charges against him, writing, “Providing humanitarian aid should never be a crime.” Federal prosecutors, however, plan to retry him in November. If convicted, Warren faces ten years in prison. In antebellum America, abolitionists were imprisoned for assisting runaways and became international cause célèbres. One of them, Charles Torrey, died in a dank Maryland jail.

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Across the Atlantic, another humanitarian has been on trial. In Italy, the German ship captain Carola Rackete, who rescued forty-one African migrants adrift in the Mediterranean was tried recently for allegedly violating Italian law against rendering assistance to migrants at sea.  The humanitarian group Sea-Watch International, with whom she is associated, has been banned from Italian waters. Italy’s anti-immigrant, right-wing populist deputy prime minister, Matteo Salvini, has called Rackete a pirate. Like Van Zandt, Rackete is in danger of losing her livelihood (and her Sea-Watch ship was confiscated by Italian authorities).

Despite protests from the German and French governments, Rackete can be punished under Italian law. The Spanish NGO Open Arms and Amnesty International have protested at Italian consulates on her behalf. A German fundraising effort has accumulated over a million euros for her legal defense and an Italian facebook campaign raised another half-million euros. On July 2, Italian judge Alessandra Vella released Rackete, deciding that the ship’s captain was just “doing her duty saving human lives.”

Rackete still faces possible prosecution, and Warren a retrial, for aiding “illegal” immigration. Like many ordinary abolitionists of America’s pre-Civil War era, these two bear witness to our common humanity beyond race, nation, religion, and gender. Johannes Bayer of Sea-Watch International noted, “We are proud of our captain, she did exactly the right thing. She followed the law of the sea and brought people to safety. Instead of her, Matteo Salvini should be investigated for kidnapping and violation of international law,” referring to an earlier court finding in Sicily against Italy’s deputy prime minister for illegally detaining migrants.

Alessio Paduano/AFP/Getty Images
Migrants being rescued from the Mediterranean Sea by members of the German NGO Sea-Watch, November 6, 2017

Abolitionists, too, often called those who captured free blacks and assisted in fugitive slave renditions “kidnappers,” deliberately rejecting any substantive difference between instances of criminal kidnapping as in the famous Solomon Northrup case of the 1850s and the brutal business of recapturing of runaway slaves. And they called the buying of the enslaved from their enslavers “ransoming.” Their aim was to make the federal fugitive slave laws—the first dating from 1793, the second from 1850—a dead letter but they, also, appealed to the “higher law” of humanity and to international law in their fight against the fugitive slave laws and Southern states’ slave laws.

Today, in criminalizing the provision of humanitarian assistance to migrants we have resurrected the fugitive slave laws of antebellum America. Just as abolitionist activists were once targeted, human rights activists have found themselves in the sights of the Trump administration for surveillance and prosecution, according to a recent Amnesty International report.

Last month, as many noted, the washed-up bodies of a Salvadoran father, Óscar Ramírez, and his young daughter, Valeria, who drowned trying to cross the Rio Grande recalled the inert, lifeless body of the three-year-old Syrian Kurdish boy, Aylan Kurdi, on a Turkish beach four years ago. The Kurdi photograph aroused worldwide condemnation and a spotlight on the plight of refugees from war-torn Syria. Many hoped that the tragedy of the Ramírez case would similarly arouse public outrage at the inhumanity of this administrations draconian immigration policies—its overcrowded detention camps, the separation of families, the deaths and abuse of children, some merely infants. In the Ramírezes’ desperate bid for safety and a new life was also an echo of an earlier crossing attempt, which, though fictional, captured the imagination of a nation. In Harriet Beecher Stowe’s novel Uncle Tom’s Cabin (1852), an enslaved mother and her infant succeeded in fleeing across the frozen Ohio river to freedom. 

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Some historical analogies can mislead, granted, but we should be mindful of the lessons from history that can shine light on our current humanitarian crisis. The first is that evils we had thought long banished from civilized societies can reappear, and with alarming speed. From concentration camps for Uighurs in China, the largest mass-detention since the Holocaust, to migrant detention centers in America, we’re seeing an increase in the systemic internment of human beings worldwide. In the US, perhaps the most fraught example is Fort Sill, Oklahoma, an Army post proposed as a migrant detention center. Fort Sill symbolizes a bloodline of state-sponsored cruelty throughout American history, first as a reservation for dispossessed Native Americans, then as an internment camp for Japanese-American citizens during World War II, and now in its present planned use by ICE as a holding pen for migrants.

The second lesson from history is how quickly such measures can be accepted as necessary, even “natural.” That ordinary people of any ethnicity or nationality can partake in and support evil actions at any time is not news to historians. The blithe assurance of top advisers like Stephen Miller and senior bureaucrats like Kirstjen Nielsen who devise cruel policies to suit the needs of the system they’re working within, and implement them seemingly without thought, recalls Hannah Arendt’s “banality of evil.” More shocking is that many border patrol agents appear not only to be following orders but, according to a recent ProPublica report, have paraded their own racist, misogynistic, and sadistic tendencies in Facebook posts. That the Trump administration has announced new nationwide raids by ICE agents recalls the kidnappings and roundups by nineteenth-century slave-catchers and federal marshals.

The out-group mentality is always a danger, but there are still individuals who, regardless of race and ethnicity, do not accept or support their government’s unjust and inhumane policies. If the history of slavery and the fight against it has taught us something, it is that racial proscriptions and divisions suit those who seek to dehumanize and exploit people they construe as the other. For this reason, the interracial nineteenth-century abolition movement can provide valuable inspiration to those involved in today’s efforts to provide humanitarian aid to migrants and refugees and to resist the threatened descent into authoritarianism, mass atrocity, and inhumanity.

The 1793 federal Fugitive Slave Act required Northern free states to return runaway slaves to Southern slaveholders, enforcing the fugitive slave clause of the US Constitution. By the turn of the nineteenth century, free blacks and mostly Quaker abolitionists resisted the implementation of the fugitive slave law by forming humane societies to prevent the kidnapping of free blacks, as well as fugitive slave rendition. Northern states such as Pennsylvania, Massachusetts, and New York passed personal liberty laws guaranteeing the due process of law and trial by jury for suspected fugitives.

The plight of today’s “Dreamers” and citizens and legal immigrants married to undocumented immigrants is comparable to the status of runaway slaves who married free blacks and raised children in free states. The famous Prigg v. Pennsylvania case (1842) that upheld the constitutionality of the federal fugitive slave law over Northern states’ personal liberty laws involved precisely such a case. It concerned a runaway enslaved woman, Margaret Morgan, who had married a free black man in Pennsylvania and had given birth to children on free soil.

A Maryland slave-catcher, Edward Prigg, sought to drag her—and her freeborn children—back to slavery in violation of Pennsylvania’s personal liberty law that accorded her a trial by jury. With the Supreme Court’s decision in favor of Prigg, and John Ashmore, the slave owner who had hired him, Margaret and her children were re-enslaved despite the best efforts of Pennsylvania to prevent such an outcome. The state’s personal liberty law was declared unconstitutional by this Supreme Court decision. We might well paraphrase Frederick Douglass’s great speech, “What to the interned migrant is the Fourth of July?”

Universal History Archive/UIG via Getty images
Illustration of the effects of the Fugitive Slave Law, passed in 1850, which reinforced the power of slave owners and slave-catchers

Repeated challenges to the fugitive slave law finally led to the passage of a new federal Fugitive Slave Law as part of the sectional Compromise of 1850 between North and South. The new draconian law not only deprived suspected runaways of the legal protections of Northern state laws, it criminalized aid to them, and required Northern citizens to abet slaveholders and slave-catchers in recapturing runaway slaves. Instead of courts of law, federal commissioners would decide the status of suspected runaways. The law had a bribe written into it: commissioners would be paid $10 if they decided that a suspected runaway was a slave, but only $5 if they declared him or her free. The new Fugitive Slave Law sparked outrage in the North, especially in areas where the abolition movement was strong. Hundreds of cases brought to court under the law by slave-catchers and slave owners in the 1850s led to abolitionist protests and scuffles with federal marshals.

The state of Wisconsin nullified the federal law in one such case where abolitionists who had assisted the fugitive slave Joshua Glover were brought to trial. Glover managed to escape to Canada. These acts of civil disobedience, some involving raids on courthouses and armed groups—what I call fugitive slave rebellions—in the North, as well as the controversy over the expansion of slavery into Western territories, paved the road to Abraham Lincoln’s victory in the presidential elections of 1860, which in turn led to the secession of most of the slave states, the ensuing Civil War, and ultimately the Emancipation Proclamation and Thirteenth Amendment.

The prosecutions of those rendering aid to migrants and refugees across Europe and America demand that we extend anew our moral imaginations and recommit ourselves to universal human rights and democracy. The abolitionists’ protests against the fugitive slave laws, which deprived large groups of people of their liberty and criminalized those who offered assistance to them, should be an inspiration in our dismal times.