SANCTUARY CITIES AND THE FUGITIVE SLAVE LAWS

BY MARTHA SWARTZ

resident Trump is threatening to withhold federal money from cities, including , that refuse to help the U.S. Immigration and P Customs Enforcement Agency (ICE) by detaining immigrants who may be here illegally. The City of recently sued the federal government to prevent the implementation of this threat. This isn’t the first time the federal government has tried to enlist the aid of states in detaining “illegals.”

the philadelphia lawyer Fall 2017 21 In January 1799, an escaped slave even if asked, because earlier that was at the forefront of that controversy, couple and their two children were month, Mayor James Kenney issued both because it was located so close to tracked down by local citizens in Chester an executive order to Philadelphia law the slave-holding South and thus the County, and returned to enforcement officials prohibiting them haven for many escaped slaves, and their Southern owner. The citizens were from detaining immigrants held for because its large Quaker community merely following the dictates of Article nonviolent crimes in response to ICE’s made it known that they were willing to IV, Section 2 of the U.S. Constitution request, reaffirming Philadelphia’s aid runaways. and the 1793 Fugitive Slave Act that status as a “,” that is, a Unhappy with the Fugitive Slave Act mandated the return of runaway slaves city that limits its cooperation with the of 1793, several Northern states first to their owners. national government’s effort to enforce tried a direct legal challenge, but when On Jan. 31, 2017, several members immigration law. that was unsuccessful they instead of a Syrian family were detained at The dispute between the federal tried to undermine its effectiveness Philadelphia International Airport government and so-called “sanctuary by enacting ‘personal liberty’ laws. and deported back to Syria under cities” has a striking parallel, if not a Pennsylvania’s personal liberty law Trump’s first travel ban (subsequently moral equivalency, to pre-Civil War made it much more difficult for slave withdrawn). Their detention and American history when several Northern owners to get their slaves back since, deportation were conducted by states refused to comply with both among other things, it required them to ICE, unaided by Philadelphia law the Constitution and federal law that prove that an individual was actually enforcement. Philadelphia law required the return of runaway slaves a slave, a feat that required time, enforcement wouldn’t have helped, to their Southern owners. Pennsylvania paperwork and expense.

22 the philadelphia lawyer Fall 2017 Like escaped slaves, undocumented immigrants arrive in Pennsylvania illegally. In the 19th century, Pennsylvania refused to return escaped slaves to their owners, defying the provisions of both the Constitution’s fugitive slave provisions and the Fugitive Slave Act of 1793.

The main reason Pennsylvania came to the forefront of the force on a runaway slave. controversy is that it attempted to prosecute a bounty hunter Other Northern states passed similar laws so that the South named Prigg who abducted a former slave and her children could no longer depend on the return of their slaves who from Pennsylvania and returned them to their former owner had escaped to the North. This resulted in the passage of the in Maryland without going through the procedures required Compromise of 1850 which established as a free by Pennsylvania’s personal liberty law. The case, Prigg vs state in return for the re-enactment of a new Fugitive Slave Law Pennsyvlania, became the test case for the constitutionality that required vigorous enforcement by the federal government. of the Fugitive Slave Act of 1793. Eventually making its Unfortunately for the South, Northern communities continued way to the U.S. Supreme Court, the case invalidated the to defy the federal government, further enraging the South and, procedural safeguards of Pennsylvania’s personal liberty along with other factors, leading to the Civil War. law, viewing them as an intentional interference with the Like escaped slaves, undocumented immigrants arrive in federal law that superseded Pennsylvania law. However, Pennsylvania illegally. In the 19th century, Pennsylvania the court also established that since it was a federal law that refused to return escaped slaves to their owners, defying the permitted a slave’s recapture, it was the federal government’s provisions of both the Constitution’s fugitive slave provisions responsibility, not the state’s responsibility, to enforce it. Thus, and the Fugitive Slave Act of 1793. In becoming a sanctuary a state was free to decide whether or not to use its own law city, Philadelphia has channeled the anti-slavery spirit of our enforcement officers to aid the federal government in the forefathers in taking the position that it will not help the federal enforcement. Inspired by this freedom of choice permitted by government detain and deport undocumented immigrants who the U.S. Supreme Court, the Pennsylvania legislature in 1847 have committed no violent crimes. quickly enacted another personal liberty law that not only prohibited state law enforcement officers from aiding federal Martha Swartz ([email protected]) is a solo marshals in enforcing the Fugitive Slave Act, but fined jailers practitioner at the Law Office of Martha Swartz. who detained black fugitives and made it a misdemeanor to use

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