Ableman v. Booth IX: The Fugitive Slave Act of 1793

One counter-argument that Justice Smith addressed was the fact that in 1793 the Second Congress had passed the Fugitive Slave Act of 1793. Although the 1793 Act imposed fewer burdens than the 1850 Act, it clearly assumed that the federal government had power to deal with fugitive slaves – and thus strongly suggested that the founding generation believed or assumed that the Fugitive Slave Clause granted that power to Congress. Again, I strongly suggest that you take a look at my earlier post discussing Prigg v. Pennsylvania and the 1793 Act.

Justice Smith clearly struggled with this issue. In the end, his explanation is not persuasive. In fairness to him, it may be that there is no convincing explanation. He stated:

“The law of 1793 was in fact but little, if any more than organizing the state authorities for the constitutional duties devolved upon them. For that very reason, it passed without scrutiny . . .. It was practically nothing more than the states themselves carrying out the constitutional compact. Not until it began to be required that the states should yield up all control over these subjects, and a prostration of their sovereignty was demanded, did attention become aroused. No importance, therefore, can justly be attached to the fact that this act was passed by an early congress and was signed by the father of his country, and was acquiesced in by the states and people. It is a remarkable fact that the most startling deviations from strict constitutional limits occurred in the very earliest years of the republic. So it must always be. But time, discussion, and experience have heretofore proved adequate correctives. Added to these, state sovereignty jeopardized, federal encroachment apprehended, and consolidation menacing, can hardly fail to accomplish the desired ends.”