Friday, September 05, 2008

The Fugitive Slave Act of 1793 4: A Commonsense Reading of the Fugitive Slave Clause

Let’s put aside for the moment all the history that accumulated concerning the Fugitive Slave Clause between 1789 and 1860. Just imagine that you’re sitting at home in 1789 reading through the newly-ratified Constitution. You get to Article IV, Section 2 and the Fugitive Slave Clause. You try to puzzle out what it means. You haven’t got James Madison’s notes of the constitutional convention; even if you did, as we’ve seen, they shed no real light. It’s just you and the text. Here’s what you see:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The longer I contemplate this provision, the more convinced I become that the directives it contained were addressed solely to the states. The first clause seems clearly to be addressed to the States: “No Person, etc., escaping into another [State], shall, in Consequence of any Law or Regulation therein [i.e., of that State], be discharged from such Service or Labour [by that State].” In other words, the first part appears clearly to forbid a state into which a slave has escaped from declaring that slave free.

The most straightforward and logical reading of the second part of provision is that it, too, is addressed to the state into which a slave has escaped. The slave shall not be “discharged from such Service or Labour [by the escaped-into state], but shall be delivered up [by that escaped-into State] on Claim . . ..” Strictly as a grammatical matter, although the phrase “delivered up” is in the passive, the inference is fairly compelling that the party doing the delivering is the escaped-into State. There isn’t the slightest reason, really, to think that the escaped slave should be “delivered up” by the escaped-into State and/or the federal government.

What is particularly interesting is that this reading reveals that the Clause (a) restricted, rather than enhanced, the powers of masters seeking to recover their slaves, and (b) impinged on the retained sovereignty of the states to only a minor extent. At common law, masters had the right to recapture slaves without involving governmental authorities, provided that they could effect recapture without breach of the peace. The Clause, however, contained nothing that required states to observe this “right” of recaption of the master. An escaped-into State’s sole obligations were that (a) it could not discharge an escaped slave from slavery, and (b) it was required to “deliver[] up” the slave “on Claim of” the master. I would argue, in other words, that if a state chose to abolish the common law right of recaption, and reclassify it as kidnapping, it was free to do so.

Finally, there is no particular reason to read too much into the phrase “deliver[] up on Claim.” This could hardly have meant that escaped-into States were required to deliver up an alleged slave to the person claiming him with no inquiry. States were surely entitled to establish reasonable procedures to test whether the “Claim” had merit. True, if procedures were intentionally designed to be so cumbersome as to thwart legitimate claims by masters, then they might violate the Clause. But so long as the procedures were reasonably designed to advance factual determinations concerning the merits of the claim, nothing in the Clause would seem to forbid them.

It will take us a while to get there, but hold these thoughts until we come to examine the Act passed by the State of Pennsylvania that the Supreme Court later reviewed in Prigg.

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