Saturday, September 06, 2008

The Fugitive Slave Act of 1793 5: Section Three Examined

In the last post, I proposed a grammatically reasonable reading of the Fugitive Slave Clause that turned out to be both minimally intrusive to state sovereignty and contained elements that could be understood to restrict the ability of slaveholders to recapture their slaves.

As you know, in 1793 the Second Congress chose to disagree with me. But to what extent? Again, let’s disregard the history and learning that later accumulated around the Fugitive Slave Act of 1793, and in particular the Supreme Court’s 1842 interpretation of the Act in Prigg. We’re just sitting around the parlor in the Spring of 1793 reading the latest statutes passed by our newly formed General Government. What have they wrought?

Sections 1 and 2 of the 1793 Act concerned the Extradition Clause, rather than the Fugitive Slave Clause. Section 3 provided:
And be it also enacted, That when a person held to labour in any of the United States, or in either of the territories on the northwest or south of the river Ohio, under the laws thereof, shall escape into any other of the said states or territory, the person to whom such labour or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labour, and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the state, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken before and certified by a magistrate of any such state or territory, that the person so seized or arrested, doth, under the laws of the state or territory from which he or she fled, owe service or labour to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labour, to the state or territory from which he or she fled.

There is (as I have suggested in an earlier post) a substantial question whether Congress had the power to pass the statute at all. Putting that issue aside, however, the statute went beyond the Clause in two potentially significant respects.

First, it established a regime by which the master or his agent himself initially seized the alleged slave, and then brought him before a judicial officer. This was certainly not required by the language of the Clause, and might reasonably be thought to contradict it. The Clause says simply that the slave “shall be delivered up.” Assuming, as I do, that the escaped-into state was to do the delivering up to the claimant, then the natural inference is that the state would do the seizing. After all, the phrase used was “delivered up” not “redelivered up.”

This was damaging in two respects. First, the statute sanctioned, at least to some extent, the master’s right of recaption, which the Clause implicitly denied. At the same time, the sovereignty of the escaped-into state was violated because it was obligated to permit slave catchers to roam around snatching people off the streets.

The second way in which the statute arguably went beyond the Clause was in the selection of the judges who would do the delivering up. The Clause, as I have argued ad nauseam, logically suggested that state authorities would do so. Section 3, however, gave the claimant a choice. After seizing the fugitive, the claimant could take him before either a federal or state officer.

This provision, too, was offensive to the escaped-into states. Not only did they have to permit slave catchers to roam around and snatch people; if slave catchers chose to take their prey before federal judges, the states would be unable to regulate their activity even on the back end.

All that said, what is most interesting about the statute (like the Clause) is that it can be seen as containing elements that restricted, rather than enhanced, the powers of masters seeking to recover their slaves. First, the statute sanctioned a procedure that required involvement by a government officer. Nothing in the statute barred states from forbidding out-and-out kidnapping. That is, the statute did not require states to suffer slave catchers to enter, grab someone, and then depart the state without permission from someone vested with authority.

Second, the statute gave states and their judicial officers substantial leeway in determining claims and the rules by which claims would be evaluated. Section 3 specifically provided that the alleged slave was to be awarded to the claimant only after the judge received “proof to [his] satisfaction” that the person seized was in fact the claimant’s slave. This meant that an individual judge might, for example, find himself unsatisfied by an affidavit from the out-of-state claimant. It also suggested that a state could establish reasonable procedural and evidentiary rules specifying the type of proof required to demonstrate ownership. Certainly the statute squarely contradicted the idea that judges were required to rubber-stamp as valid any and all claims of ownership presented to them.

Finally, the statute’s authorization of federal judges to hear cases was not as bad as it seemed. Federal judges were few and far between. As a practical matter, most slave catchers would wind up bringing their captures before state judges. This meant that, if a state chose to enact stringent procedural and evidentiary rules, they would have bite.

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