The Fugitive Slave Act of 1793 was a pretty bare-bones affair. The central provision – one brief section – outlined a scheme by which masters or their agents could themselves apprehend escaped “servants” and obtain a certificate from a state or federal judge in the locality to which the slave had fled authorizing the claimant to return the fugitive to his original state. If the master or agent could not apprehend the slave without causing a “breach of the peace,” the claimant could apply to a local magistrate for a warrant requiring local law enforcement to arrest the alleged fugitive.
Although the fugitive slave bill that Rep. James Pindall introduced on December 29, 1817 contained several innovations, the linchpin of the proposed legislation – entitled A Bill To amend an act, entitled “An act respecting fugitives from justice, and persons escaping from the service of their masters” – was a new certificate, issued by a judge in the locality from which the slave escaped. (For convenience, I will refer to this locality as the “Home District”; the locality to which the alleged fugitive has escaped I will refer to as the “Fugitive District.”)
In a nutshell, Section 1 of the Bill authorized a master of an escaped slave, or the master’s agent, to apply to a judge in his Home District for a certificate attesting “that the person so escaping, is the slave of such claimant, or doth owe to such claimant, service or labor, whereof the law compels a specific performance.”
The language of Section 1 indicates that this procedure was not mandatory; that is, the master was not required to obtain a certificate from his Home District. However, as we shall see, the Bill created powerful incentives for the master to do so.
First and foremost, a master (or his agent) armed with such a Home District certificate was entitled to present it to a judge in the Fugitive District. Under the 1793 Act, the Fugitive District judge was required to determine whether "the person so seized or arrested, doth, under the laws of the State or Territory from which he or she fled, owe service or labor to the person claiming him or her." Given the difficulties of proof, this in effect gave the judge broad discretion to deny applications.
The 1817 Bill attempted to limit this discretion where the Fugitive District judge was presented with a Home District certificate as much as possible. Under such circumstances, it was the judge's “duty” to issue a warrant for the apprehension of the fugitive:
Furthermore, after apprehension of the fugitive, the only determination that the Fugitive District judge was entitled to make was whether “the person so apprehended is the same person named or mentioned in or by the aforesaid [Home District] certificate”. Having determined that issue, the judge was required to turn over the fugitive:
It seems a fair inference that these provisions reflected the perception of the drafters that free state judges were using, or at least might use, their greater discretion under the 1793 Act to evade their responsibilities to issue warrants for the arrest and turnover of fugitives.
A third advantage that accrued to masters who obtained Home District certificates was the right to obtain assistant in intrastate transport of their captured fugitives. When the Fugitive District judge issued a warrant directing the marshal or other law enforcement officer to turn over the fugitive to the claimant, the claimant was entitled to have the officer, for a fee, transport the fugitive to the border of the state:
While this benefit may seem trivial, its inclusion is interesting. It may suggest that the drafters thought southerners were concerned that a return trip with a captured fugitive - for example, from Cleveland to Cincinnati, or from Buffalo to New York City - was a potentially hazardous undertaking.
Finally, the Bill authorized returning masters to receive similar transportation services from law enforcement in other states through which they passed with their captives. A Maryland master returning with a fugitive from New York via Pennsylvania, for example, was entitled to have a Pennsylvania sheriff transport the fugitive from the New York-Pennsylvania border to the Pennsylvania-Maryland border:
Were southern masters so concerned about their security on return trips that the drafters of the Bill set up this remarkable - and remarkably intrusive - procedure? It would seem so.
In the next post, we will look at yet other advantages accruing to masters who obtained Home District certificates.
About the illustration:
Although the fugitive slave bill that Rep. James Pindall introduced on December 29, 1817 contained several innovations, the linchpin of the proposed legislation – entitled A Bill To amend an act, entitled “An act respecting fugitives from justice, and persons escaping from the service of their masters” – was a new certificate, issued by a judge in the locality from which the slave escaped. (For convenience, I will refer to this locality as the “Home District”; the locality to which the alleged fugitive has escaped I will refer to as the “Fugitive District.”)
In a nutshell, Section 1 of the Bill authorized a master of an escaped slave, or the master’s agent, to apply to a judge in his Home District for a certificate attesting “that the person so escaping, is the slave of such claimant, or doth owe to such claimant, service or labor, whereof the law compels a specific performance.”
[W]hen a person held to labor or service in any of the United States, or in either of the territories thereof, by the laws of any such state or territory, shall escape into any other state or territory, the person to whom such labor or service may be due, or his or her agent, may apply to any judge of the district or circuit court of the district from whence such fugitive shall have escaped, or to any two judges or justices of the peace of the state or territory from whence such fugitive shall have escaped; and upon proof to the satisfaction of such judge or magistrates, that such fugitive is a slave, or doth, under the laws of the state or territory, from whence he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge of the district or circuit court, or such judges or magistrates, to award a certificate that the person so escaping, is the slave of such claimant, or doth owe to such claimant, service or labor, whereof the law compels specific performance. And the official authority of such judges or magistrates may be verified by seal of such state or territory, or of any court of record therein, or in such other manner as such acts are usually authenticated.
The language of Section 1 indicates that this procedure was not mandatory; that is, the master was not required to obtain a certificate from his Home District. However, as we shall see, the Bill created powerful incentives for the master to do so.
First and foremost, a master (or his agent) armed with such a Home District certificate was entitled to present it to a judge in the Fugitive District. Under the 1793 Act, the Fugitive District judge was required to determine whether "the person so seized or arrested, doth, under the laws of the State or Territory from which he or she fled, owe service or labor to the person claiming him or her." Given the difficulties of proof, this in effect gave the judge broad discretion to deny applications.
The 1817 Bill attempted to limit this discretion where the Fugitive District judge was presented with a Home District certificate as much as possible. Under such circumstances, it was the judge's “duty” to issue a warrant for the apprehension of the fugitive:
That on producing such [Home District] certificate as aforesaid, to any judge of the circuit or district court, or judge or justice of the peace in the state or territory to which such fugitive shall have escaped, it shall be the duty of such judge or magistrate to grant a warrant authorizing any marshal, sheriff, sergeant, constable, or public bailiff of the state or territory last aforesaid, to apprehend such fugitive, and bring him or her before such judge or justice . . ..
Furthermore, after apprehension of the fugitive, the only determination that the Fugitive District judge was entitled to make was whether “the person so apprehended is the same person named or mentioned in or by the aforesaid [Home District] certificate”. Having determined that issue, the judge was required to turn over the fugitive:
[I]f it shall thereupon appear to the satisfaction of such [Fugitive District] judge or magistrate, by affidavit or otherwise, that the person so apprehended is the same person named or mentioned in or by the aforesaid [Home District] certificate, the said judge or justice shall issue his warrant requiring any marshal, sheriff, sergeant, constable, or public bailiff, of such state or territory, to take the charge and custody of such fugitive, and to deliver him or her to the said claimant, or his or her agent . . ..
It seems a fair inference that these provisions reflected the perception of the drafters that free state judges were using, or at least might use, their greater discretion under the 1793 Act to evade their responsibilities to issue warrants for the arrest and turnover of fugitives.
A third advantage that accrued to masters who obtained Home District certificates was the right to obtain assistant in intrastate transport of their captured fugitives. When the Fugitive District judge issued a warrant directing the marshal or other law enforcement officer to turn over the fugitive to the claimant, the claimant was entitled to have the officer, for a fee, transport the fugitive to the border of the state:
. . . [T]he said [Fugitive District] judge or justice shall issue his warrant requiring any marshal . . . [etc.] of such state or territory, to take the charge and custody of such fugitive, and to deliver him or her to the said claimant, or his or her agent on the confine or boundary of the state or territory last aforesaid, in the most direct and usual route to the place from whence the said fugitive shall have absconded.
While this benefit may seem trivial, its inclusion is interesting. It may suggest that the drafters thought southerners were concerned that a return trip with a captured fugitive - for example, from Cleveland to Cincinnati, or from Buffalo to New York City - was a potentially hazardous undertaking.
Finally, the Bill authorized returning masters to receive similar transportation services from law enforcement in other states through which they passed with their captives. A Maryland master returning with a fugitive from New York via Pennsylvania, for example, was entitled to have a Pennsylvania sheriff transport the fugitive from the New York-Pennsylvania border to the Pennsylvania-Maryland border:
And the judge of any district or circuit court, or any judge or justice of the peace of any state or territory, between the state or territory wherein such fugitive may be apprehended, and the state or territory from whence he or she shall have escaped, shall, on the application of such claimant, or his agent, and on inspection of the aforesaid certificate, issue a warrant requiring any sheriff, marshal, sergeant, constable, or public bailiff, of such intervening state or territory to receive such fugitive on the confine or boundary of such state or territory, and to deliver him or her to the claimant or his agent, on the confine or boundary thereof, in the most direct and usual route to the place from whence such fugitive shall have absconded.
Were southern masters so concerned about their security on return trips that the drafters of the Bill set up this remarkable - and remarkably intrusive - procedure? It would seem so.
In the next post, we will look at yet other advantages accruing to masters who obtained Home District certificates.
About the illustration:
A satire on the antagonism between Northern abolitionists on the one hand, and Secretary of State Daniel Webster and other supporters of enforcement of the Fugitive Slave Act of 1850. Here abolitionist William Lloyd Garrison (left) holds a slave woman in one arm and points a pistol toward a burly slave catcher mounted on the back of Daniel Webster. The slave catcher, wielding a noose and manacles, is expensively dressed, and may represent the federal marshals or commissioners authorized by the act (and paid) to apprehend and return fugitive slaves to their owners. Behind Garrison a black man also aims a pistol toward the group on the right, while another seizes a cowering slaveholder by the hair and is about to whip him saying, "It's my turn now Old Slave Driver." Garrison: "Don't be alarmed Susanna, you're safe enough." Slave catcher: "Don't back out Webster, if you do we're ruind." Webster, holding "Constitution": "This, though Constitutional, is "extremely disagreeable." "Man holding volumes "Law & Gospel": "We will give these fellows a touch of South Carolina."Man with quill and ledger: "I goes in for Law & Order." A fallen slaveholder: "This is all "your" fault Webster." In the background is a Temple of Liberty flying two flags, one reading "A day, an hour, of virtuous Liberty, is worth an age of Servitude" and the other, "All men are born free & equal." The print may (as Weitenkampf suggests) be the work of New York artist Edward Williams Clay. The signature, the expressive animation of the figures, and especially the political viewpoint are, however, uncharacteristic of Clay. (Compare for instance that artist's "What's Sauce for the Goose," no. 1851-5.) It is more likely that the print was produced in Boston, a center of bitter opposition to the Fugitive Slave Act in 1850 and 1851.
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