Saturday, September 06, 2008

The Fugitive Slave Act of 1793 6: The Origins of the Pennsylvania Statute


The Pennsylvania statute that the Supreme Court examined in Prigg in 1842 had been passed sixteen years earlier, in 1826. The bulk of the statute regulated the manner in which masters and their agents were to lay claim to and recover fugitive slaves within the state, and described the procedures that state courts judges were to follow in evaluating those claims. In addition, the very first section declared that the unauthorized seizure and transfer of claimed slaves from the state was a felony punishable by seven to twenty-one years in prison. In effect, if a slave catcher failed to observe the requirements of the statute, he was guilty of kidnapping.

I will look at the statute in greater depth later, but I thought I’d begin by discussing its origins. You might assume that it was created by radical abolitionists bent on gutting the Fugitive Slave Act. That does not seem to have been the case, however.

One of the attorneys arguing on behalf of the Commonwealth of Pennsylvania in Prigg related the origins of the 1826 Act that I set forth below. I cannot vouch for every detail. However, opposing counsel did not dispute the story. Since they had every reason to challenge it, there is substantial reason to credit Pennsylvania’s description as accurate.

According to Mr. Johnson, the Attorney-General of Pennsylvania, the 1826 Act was the result of negotiations between Pennsylvania and the State of Maryland. The latter state desired that Pennsylvania pass a law that would clarify the procedures by which slaves who had escaped there could be captured and returned. Pennsylvania, consistent with its antislavery history and concerns, wanted to ensure that its citizens would not be kidnapped. At the time, Maryland declared itself entirely satisfied with the result. If anything, it was Pennsylvanians who believed that they had given away too much. At all events, the statute was clearly not an attempt to evade or nullify the 1893 Act:

The difficulties which resulted in the present case [Prigg] had been previously felt, and made the subject of negotiation between these states [Pennsylvania and Maryland]. And it was a curious fact, that this very act of 25th March 1826, the unconstitutionality of which is alleged in this case, was the joint fruit of such negotiation. It was passed, as [Mr. Johnson] believed, at the instance and with the entire approval of commissioners appointed by the constituted authorities of the state of Maryland, to wait upon the legislature of Pennsylvania to obtain the passage of some law of the kind. At the time of its passage, it was loudly condemned by that portion of the citizens of Pennsylvania who favored the abolition of slavery. And now, a singular change of places is exhibited- the state of Maryland repudiates what she then sanctioned; and the adversaries of slavery sustain, though not very cordially, what they then condemned. One of these parties thinks this act of 1826 is too indulgent to slave-holders; the other, that it deprives them of their just rights. The considerate and enlightened citizens of Pennsylvania, with few, if any, exceptions, were, he believed, of the opinion that this law was precisely what it should be-alike warranted by the federal constitution, and careful to protect the rights of all. . .

So, in the act of 1826. Its very title speaks its object. It is “an act to give effect to the provision of the constitution of the United States, relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping.” Thus is this very unconstitutional act found to be an act to give effect to the constitution. The history of the legislation of Pennsylvania on this subject will prove, that though she has been ever found in the vanguard of the friends of liberty and humanity, she never has forgotten what is due to her sister states; she never has wavered in her loyalty to the constitution of the Union; and come what may, she never will depart from this course.

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