Monday, September 08, 2008

The Fugitive Slave Act of 1793 7: The Pennsylvania Statute at Issue in Prigg

The 1826 Pennsylvania statute at issue in Prigg dealt primarily with the procedures that applicants and state courts were to follow in connection with claims for the recovery of fugitive slaves. In general, the statute outlined a two-step process: first, arrest of the alleged fugitive by a local sheriff or constable acting pursuant to a warrant issued by a judge; and second, a hearing before the judge at which the claimant was required to prove that the person arrested was in fact his (or his principal’s) slave, and that he was therefore entitled to a certificate authorizing removal of the slave from the state.

You will recall that the Fugitive Slave Act of 1793 authorized the master or his agent to seize the alleged fugitive without involving, or even notifying, state (or federal) authorities. Only after the seizure was the claimant to seek state authorization to remove the alleged slave from the state.

The Pennsylvania statute, in contrast, required state involvement from the start. Having identified a claimed fugitive, a master or his agent was required to apply to a judge for an arrest warrant. In support of his application, the applicant was required to present a sworn statement of ownership, reciting “that the said fugitive hath escaped from his or her service, or from the service of the person for whom he is duly constituted agent or attorney”.

In addition, in the typical case where an agent was making the application, his sworn statement was not enough. He was required to present an affidavit of the out-of-state master “stat[ing] the said claimant’s title to the service of such fugitive, and also the name, age and description of the person of such fugitive.”

If the applicant produced the proof required by the statute, the judge then issued an arrest warrant for the alleged fugitive. The warrant did not, however, authorize the claimant (or his agent) to seize the fugitive. It was addressed to a local sheriff or constable and commanded that official to arrest the fugitive and bring him forthwith before the judge issuing the warrant, “so that the truth of the matter may be inquired into.”

As the language of the warrant indicated, the person arrested was brought before the judge so that a hearing could be held as to whether he did in fact owe “service or labor” to the claimant or the claimant’s principal. “[U]pon proof, to the satisfaction of such judge,” of this fact, “it shall be the duty of such judge to give a certificate thereof to such claimant, his or her duly authorized agent or attorney, which shall be sufficient warrant for removing the said fugitive to the state or territory from which she or he fled.”

The statute clearly contemplated a hearing at which witnesses would give live testimony. For example, one section discusses adjournments where “either party” demonstrates “that he or she is not prepared for trial, and have testimony material to the matter in controversy, that can be obtained in a reasonable time”.

The statute did not specify the precise procedures and proofs to be presented at the hearing, except in one remarkable respect:
Provided, that the oath of the owner or owners, or other person interested, shall in no case be received in evidence before the judge, on the hearing of the case.

It is difficult to assess the practical impact of this extraordinary proviso, because I do not know how Pennsylvania judges applied it. But in theory at least, the proviso could make it extremely burdensome for a master to prove his ownership. Assuming it were available, would a judge accept testimony from Pennsylvania neighbors of the detainee that it was generally known that he had been a slave and escaped? Or would the master be forced to bring up witnesses – foremen? neighbors? – from his home state to identify the detainee? Perhaps in some or many cases, the agent representing the master came from the same community as the master and could testify on personal knowledge concerning the detainee.

Finally, it is worth pointing out that the statute made clear that state judges were required to follow its procedures exclusively:
No [judge] of this commonwealth shall have jurisdiction or take cognizance of the case of any fugitive from labor from any of the United States or territories, under a certain act of congress passed on the tenth day of February 1793, entitled “an act respecting fugitives from justice, and persons escaping from the service of their masters;” nor shall any [judge] of this commonwealth issue or grant any certificate or warrant of removal of any such fugitive from labor as aforesaid, except in the manner and to the effect provided in the third section of this act, upon the application, affidavit or testimony of any person or persons whatsoever, under the said act of congress, or under ay other law, authority or act of the congress of the United States . . ..

In the next installment, we will look at the kidnapping section of the Pennsylvania act under which Edward Prigg was convicted.

No comments:

Post a Comment

Related Posts with Thumbnails