Tuesday, September 02, 2008

The Fugitive Slave Act of 1793 3: The Act Passes

Before examining the text of the Fugitive Slave Act of 1793, I thought we’d take a brief look at what prompted it. The First Congress had not considered the matter sufficiently important to legislate on. What prompted the Second Congress, at the end of its life, to conclude that a statute was necessary?

The answer is, Not much. Don Fehrenbacher tells the basic story:
No outbreak of fugitive activity had inspired a slaveholders’ demand for legislation. The act of 1793 resulted instead from a quarrel between Pennsylvania and Virginia over criminal extradition. But since fugitives from justice and fugitives from service had been dealt with side by side in the Constitution [in Article IV, Section 2], it seemed logical to do so again in implemental legislation. And so Congress passed “An respecting fugitives from justice, and persons escaping from the service of their masters.”

Fifty years later, the antiquity of the statute loomed as a large obstacle to the attorneys for the State of Pennsylvania, who were trying to establish its unconstitutionality in Prigg. The Act had, after all, been passed in the hallowed early days of the Republic by a Congress that included a number of Framers who presumably were well aware of the original understanding concerning the Clause.

In order to alter this perception, one of the Pennsylvania attorneys, Mr. Johnson, provided a more detailed history, designed to suggest that the fugitive slave sections of the act were little more than an afterthought, not carefully considered and crafted provisions. I can’t vouch for the accuracy of Johnson’s assertions; on the other hand, the fact that opposing counsel did not challenge his description of events gives some confidence. I have added paragraph breaks to the following quote for readability:
In the year 1791, the governor of Pennsylvania made a demand on the governor of Virginia, for the surrender of three persons charged with kidnapping free negro. After taking the advice of the attorney-general of that state [Virginia], the governor refused to comply, on the ground, that although the constitution made it obligatory on him to surrender up fugitives from justice, yet as there was no act of congress directing the mode in which it should be done, he could not and would not yield to the demand.

The governor of Pennsylvania submitted the question to President Washington, who after consulting the attorney-general of the United States, brought the whole matter to the notice of congress. See 1 American State Papers, Miscellaneous, 38-9. That body referred the subject to a committee; a bill was reported, substantially the act of 1793. It lay upon the table for a considerable period, and finally passed and became a law on the 12th February 1793.

It is to be observed, that the only question submitted, was the one touching fugitives from justice – not fugitive slaves. The two subjects were comprehended by congress in one bill, and the northern states were constrained to agree to the provision relative to fugitive slaves, for the purpose of procuring the passage of a law providing for the case of fugitives from justice.

The bill passed the Senate without recorded debate. The House passed the bill by a vote of 48 to 7. The ayes included Elias Boudinot of New Jersey and, ironically, Elbridge Gerry of Massachusetts, both of whom we met in a prior installment. The nays, for the record, were Samuel Livermore of New Hampshire, John Francis Mercer of Maryland, Nathaniel Niles of Vermont, Josiah Parker of Virginia, Jonathan Sturges of Connecticut, George Thatcher of the Maine district of Massachusetts and Thomas Tredwell of upstate New York.

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