Thursday, October 29, 2015

Schmitt on the Federal Right to Recover Fugitive Slaves

Jeffrey M. Schmitt, Florida Coastal School of Law, has posted The Federal Right to Recover Fugitive Slaves: An Absolute But Self‑DefeatingProperty Right, which is to appear in the
Savannah Law Review 2 (2015).:    
A key insight of modern property scholarship is that property rights are limited by the rights of others. In the antebellum era, slave owners= property rights in fugitive slaves who escaped into the North existed in tension with the rights of free blacks who might be wrongfully claimed. At first, the Fugitive Slave Act of 1793, as supplemented by the law in most Northern states, limited a slave owner=s property rights by providing limited legal protections to free blacks against being erroneously claimed as slaves. As attitudes towards slavery changed, however, state laws in the North became increasingly protective of free blacks, and Southerners became less willing to accept any limitations on the right to recover fugitive slaves. The Supreme Court responded in Prigg v. Pennsylvania by striking down state law limitations on slave owners= ability to recapture fugitive slaves. Congress followed suit in the Fugitive Slave Act of 1850 by federalizing a strong property right in fugitive slaves that was only marginally limited by the alleged slaves= rights to freedom. This Article argues that the federal government=s one‑sided approach to the fugitive‑slave issue generated an antislavery backlash that undermined Northern support for the rendition of fugitive slaves, making rendition costly and dangerous. The fugitive slave issue, therefore, suggests that property rights that ignore the rights of others are not only unjust, but, in the right circumstances, can also be self‑defeating.

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