Monday, September 01, 2008

The Fugitive Slave Act of 1793 1: Congress Establishes a Legislative Precedent

I've been itching to post some more about the Fugitive Slave Act of 1893 and Prigg v. Pennsylvania, the 1842 Supreme Court case that held that act constitutional and one of the most interesting and important cases of the first half of the Nineteenth Century. The problem was, I couldn't figure out where to start. With the facts of Prigg? They are their own confusing story. With the enactment of the Fugitive Slave Act in 1793? That leaves out a lot of pre-history.

Then I figured it out. I should start by discussing an event that occurred at the dawn of this country's legislative history, an event that is fascinating in its own right, an event that has nothing to do -- on its face -- with the Fugitive Slave Act. Here it is.

Do you know what the very first act passed by the United States Congress and signed into law was? It was none other than " An Act to regulate the Time and Manner of administering certain Oaths".

Article VI of the Constitution contained (and still contains) a clause that requires that both federal and state officials swear (or affirm) to support the Constitution:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

That first statute was designed to put some meat on the bones of that constitutional provision. Section 1 of the Act began by specifying the precise form that the oath was to take:
That the oath or affirmation required by the sixth article of the Constitution of the United States, shall be administered in the form following, to wit: "I, A.B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States."

The remainder of Section 1 and Section 2 then laid out details regarding oath-taking by federal officials: who would take it, who would administer it, and when it was to be administered.

Section 3 of the Act provided similar details for state officials. It required that all state officials take the specified oath or affirmation and prescribed when they would take it, who could administer it, and the like:
And be it further enacted, That the members of the several State legislatures, respectively, and all executive and judicial officers of the several States, who have been heretofore chosen or appointed, or who shall be chosen or appointed before the first day of August next [1790], and who shall then be in office, shall, within one month thereafter, take the same oath or affirmation, except where they shall have taken it before; which may be administered by any person authorized by the law of the State, in which such office shall be holden, to administer oaths.

In the future, all state officers would be required to take the oath before they embarked on their duties:
And the members of the several State legislatures, and all executive and judicial officers of the several States, who shall be chosen or appointed after the said first day of August [1790], shall, before they proceed to execute the duties of their respective offices, take the foregoing oath or affirmation, which shall be administered by the person or persons, who by the law of the State shall be authorized to administer the oath of office; and the person or persons so administering the oath hereby required to be taken, shall cause a record or certificate thereof to be made, in the same manner, as, by the law of the State, he or they shall be directed to record or certify the oath of office.

The bill originated in the House of Representatives. On Monday April 6, 1789, the House passed a resolution specifying the form of oath to be taken by its own members. At the same time, the House appointed a committee of five members (including James Madison) "to bring in a bill to regulate the taking the oath or affirmation prescribed by the sixth article of the Constitution."

The late David P. Currie relates that the bill that emerged from the House concerned only federal, not state, officials. This, Professor Currie opines, was reasonable and within the bounds of the Constitution:
Insofar as [federal] legislators and legislative employees were concerned, such a statute could be explained as necessary and proper to the exercise of congressional powers, since neither members nor staff could function without taking the oath. Nor could there have been any constitutional objection to regulating the oath that Article VI required of federal executive and judicial officers, as the bill did when it emerged from the House -- for the necessary and proper clause empowered Congress to enact legislation carrying into effect not only its own powers but also those vested in any other federal officer or department, and the regulation was as necessary for other officials as for members of Congress themselves.

Section 3, the provision concerning state officials, was added in the Senate. The deliberations of that body were not then open to the public, and debates in the Senate were not officially recorded. Nonetheless, unofficial sources -- particularly the journal entries of Pennsylvania Senator William Maclay -- indicate that objections promptly arose. In particular, some Senators denied, apparently heatedly, that Congress had the power to prescribe oaths for state officials:
A diversity of opinion arose whether the law [concerning oaths] should be extended so as to oblige the officers of the State governments to take the oaths. The power of Congress to do this was asserted by some and derided by others in pointed terms.

Several days later, the debate on the issue resumed. Senator Maclay objected that the Constitution did not delegate to Congress the power to legislate on the subject:
The question was not whether the [state] officers should take the oath, but was it our business to interfere in it? It was equally clear that Senators, Representatives, and electors were to be chosen by the States, but who ever thought of a law to oblige them to do these things? The adopting States, by the terms of their adoption, had pledged themselves to conform to the Constitution, which contained these things among its fundamental rules; that among the powers delegated to Congress this was not mentioned, nor was it necessary, being already provided for in the Constitution . . ..

When the bill returned to the House for consideration of the Senate amendments, Section 3 raised a similar storm. Elbridge Gerry of Massachusetts immediately complained that “he did not discover what part of the constitution gave to Congress the power of making this provision, except so much of it as respects the form of the oath; it is not expressly given by any clause of the constitution . . ..”

Rep. Gerry rejected the idea that “the sweeping clause” – another name for the Necessary and Proper Clause found at the end of Article I, Section 8 – might authorize the provision. Even though “there seems to be no limitation” to the Clause, Gerry noted that it “gives no legislative authority to Congress to carry into effect any power not expressly vested by the constitution.”

The Constitution was the supreme law of the land, Gerry maintained, and the states were obligated to follow its provisions, including the provision in Article VI that required state officers to take the oath described therein. But this fact only strengthened the conclusion that Congressional legislation was unnecessary and unauthorized:
In the constitution, which is the supreme law of the land, provision is made, that the members of all the Legislatures of the several States, and all executive and judicial officers thereof, shall be bound by oath to support the constitution. But there is no provision for empowering the Government of the United States, or any officer or department thereof, to pass a law obligatory on the members of the Legislatures of the Several States, and other officers thereof, to take this oath. This is made their duty already by the constitution, and no such law of Congress can add force to the obligation . . ..

Gerry concluded his argument with a remarkably prescient and radical invocation of the principle of judicial review. Congressional action was also unnecessary because the Constitution itself in effect provided drastic remedies if state officials disregarded Article VI by taking failing to take the oath prescribed by it. In that event, their actions would be void, and the courts, pursuant to their constitutional obligations, would annul them:
[T]he oath required by the constitution being a necessary qualification for the State officers mentioned, cannot be dispensed with by any authority whatever other than the people, and the judicial power of the United States, extending to all cases arising in law or equity under this constitution. The judges of the United States, who are bound to support the constitution, may, in all cases within their jurisdiction, annul the official acts of State officers, and even the acts of the members of the State Legislatures, if such members and officers were disqualified to do or pass such acts, by neglecting or refusing to take this oath.

Of the responses to Rep. Gerry’s arguments, Professor Currie has identified New Jersey Rep. Elias Boudinot’s as the most significant. Rep. Boudinot argued, in effect, that “Article VI itself implicitly authorized Congress to implement its provisions”:
As to the policy or expediency of the measure, [Mr. Boudinot] entertained not the least doubt respecting it. The constitution said only that the officers of Government should be bound by oath, leaving to Congress to say what oath. In short it was the duty of the House . . . to detail the general principles laid down in the constitution, and reduce them to practice.

Professor Currie comments:
This was not a necessary conclusion. The principle that had justified the House in prescribing the form of the oath for its own personnel would have justified the states in doing the same for theirs. Indeed Article IV’s explicit provision authorizing Congress to effectuate the full faith and credit clause arguably strengthens the inference that when the Framers wanted Congress to implement constitutional provisions they said so. On the other hand, as Chief Justice Marshall would later tell us, the last thing the necessary and proper clause was meant to do was to limit the authority implicit in other constitutional provisions [citing McCulloch v. Maryland]. Like the sweeping clause itself, the power to flesh out full faith and credit may have been inserted out of an abundance of caution.

At all events, the House passed the bill as amended:
The question on concurring with the Senate in the amendments to the bill was carried, with an amendment, that the members of the State Legislatures be directed to take the oath at their next sessions respectively.

The bill was, by order of the House, returned to the Senate as amended.

Legislators, of course, do not issue opinions explaining the reasons for their votes. However, as a practical matter, the passage of the bill established two important legislative precedents. First, Congress had legislated on a subject that was not among those delegated to it by Article I, Section 8. Second, that legislation required state officers to take specific action.

The same principles would come into play a few years later. Professor Currie again:
Four years later this action served as precedent for the far more significant Fugitive Slave Act, which implemented a clause of Article IV that was as silent with respect to congressional authority as the oath provision of Article VI. It was in the emotionally charged context of the fugitive slaves that the Supreme Court would ultimately accept Boudinot’s argument of implied authority in the great case of Prigg v. Pennsylvania.

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