Fugitive Slave Act of 1793

Context

Slavery was unknown to the English common law, and so British colonists in North America generally borrowed from other sources to regulate slavery. At its heart, the relationship of master to slave was one of absolute dominion. Masters could do virtually what they wished with their slaves, subject to the regulations passed by colonial legislatures. Some customs were borrowed from the English law concerning master and servant, notably the common-law right of “recaption.” If servants ran away, masters had the right to track them down, seize them, and return them to service. This right was embodied in the hierarchical relationship of the common law of persons and extended to husband and wife as well as to father and child.

Because the common-law right of recaption was universally recognized, it was not uncommon for masters or their agents to pursue fugitive servants and slaves into other colonies, recapture them, and return them to service. The gradual disappearance in the eighteenth century of white indentured servitude meant that the majority of fugitives would be slaves, although some white indentured servants did remain. In 1775, for instance, George Washington offered a reward for two British-born white servants who had fled their contractual obligations. But by the Revolutionary era, it was mainly black slaves who ran. In most instances, masters relied upon this common law of recaption to seize and forcibly return slaves to their plantations.

Recaption, however, had its limits. The beginnings of an international abolition movement in the eighteenth century challenged slavery on moral, ethical, and legal grounds. One such challenge involved James Somerset (also spelled “Somersett”), a free-born African who was kidnapped, reduced to slavery, and sold to Charles Stewart (also spelled “Steurt”), a Scot who made his fortune in the North American colonies. In 1769, Stewart set sail for the British Isles and brought Somerset with him. When they arrived in London, Somerset escaped. Stewart’s agents arrested him, chained him, and put him aboard a ship destined for the West Indies. Abolitionists caught wind of the case and petitioned the King’s Bench for a writ of habeas corpus. Habeas corpus was, by 1772, the standard remedy for testing wrongful detention. It required the jailer (in this case, the captain of the vessel where Somerset languished in chains) to specify by what authority he detained the prisoner. In Somerset’s case (R. v. Knowles, ex parte Somersett) , Charles Stewart argued that Somerset was a slave by the laws of Virginia, and as such the right of recaption allowed him to seize Somerset, detain him, and forcibly remove him from England.

William Murray, 1st Earl of Mansfield, who was chief justice of the King’s Bench, disagreed. He released Somerset, declaring that slavery was “so odious, that nothing can be suffered to support it, but positive law.” By “positive law,” Lord Mansfield meant a legislative enactment specifically endorsing slavery. Virginia’s colonial legislature might allow slavery, Lord Mansfield was saying, but those laws extended only so far as Virginia’s borders. The law had no effect in England, and as such Somerset was not being held by any law. Accordingly, he had to be released. The common-law right of recaption, in other words, did not exist in the case of slavery, unless specifically allowed by statute.

The principle of Somerset’s Case (as it came to be known) reverberated across the Atlantic. It was an age of liberty, and colonists from Georgia to Massachusetts were busy debating the precise nature of political freedom and self-government—a debate that, as they well understood in 1772, might lead to war. But slavery was entrenched in the colonies at this time, which created an obvious disjunction between reality and political rhetoric. Nonetheless, nascent abolitionism took hold in several northern colonies. In 1780, Pennsylvania became the first colony to pass a statute for gradual abolition, promising to end all slavery within several generations. Other states, including Virginia, also considered plans for gradual abolition.

The prospect of abolition in northern colonies, when combined with the principle of Somerset’s Case, suddenly made the future of slavery in the United States seem precarious. Southern delegates to the Constitutional Convention of 1787—especially the state delegations from South Carolina and Georgia—were well aware of this danger and worked hard to make sure that their slave property was protected under the Constitution. Practically, the convention had to deal with three specific problems. The first was the question of whether slaves would be counted for the purpose of representation. The second was whether Congress would have the authority to regulate the international slave trade. The third was the problem of fugitive slaves. Of the three, the first two were the more serious and threatened more than once to stalemate the convention. Ultimately, the delegates settled with the three-fifths compromise, which counted three slaves for every five for the purposes of both taxation and representation. They also agreed that Congress could ban the slave trade, but not for twenty years.

There was comparatively little controversy over the question of fugitive slaves. When in August 1787, as the delegates were winding up their business, the South Carolinian delegates Pierce Butler and Charles C. Pinckney proposed adding a clause that required fugitives to be delivered up like criminals, the only protest it drew from northern delegates was that it would be costly because it would obligate state officers to spend time and resources locating, capturing, and extraditing fugitive slaves. Butler and Pinckney withdrew their motion and resubmitted one the next day that would become, with one small modification, the exact wording of Article IV, Section 2:

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 fact that the fugitive slave clause encountered no opposition at the Constitutional Convention indicates how deeply embedded was respect for property rights, even by abolitionists. Pennsylvania’s 1780 Act for the Gradual Abolition of Slavery had a fugitive slave clause as well, thus guaranteeing slaveholders from other states that their fugitive slaves would not become free by Pennsylvania’s laws. Likewise, the Northwest Ordinance (1787), which prohibited slavery in the Northwest Territory (today’s upper Midwest) also contained a fugitive slave exception. The language of the Ordinance clause itself clearly embraced the fundamental principle of Somerset’s Case: that slavery could be sustained only by explicit command. Yet the fugitive slave clause explicitly prohibited the states from freeing fugitive slaves, instead commanding that they “be delivered up.” What was unclear was whether Congress or the states had the constitutional power to legislate with regard to fugitive slaves and precisely what the limits of that power were.

The Fugitive Slave Act was passed by the Second U.S. Congress in direct response to a situation that arose in western Pennsylvania. Confusion over the location of the Pennsylvania-Virginia border had led to the establishment of a joint commission between the two states to permanently fix its location. Consequently, some Virginians suddenly found that they were living in Pennsylvania. This had important consequences for slaves and slaveholders, because Pennsylvania’s gradual abolition act specified that any and all slaves had to be registered and accounted for. Most slaveholders did register their slaves with the state, but a few did not. One slave, John Davis, was not properly registered and became legally free in 1783. His purported owner nonetheless rented him out to a Virginia planter. Davis escaped in 1788 and fled to Pennsylvania, but three Virginians pursued him, captured him, and forcibly removed him to Virginia.

This kidnapping of John Davis touched off a storm of legal activity. A Pennsylvania grand jury indicted the three Virginians for kidnapping. Pennsylvania Governor Thomas Mifflin officially requested the extradition of the men, but Virginia Governor Beverly Randolph declined to extradite him, on advice from his attorney general. The governor of Pennsylvania collected the official correspondence from the affair and sent it to President George Washington, asking him to submit it to Congress for resolution. Washington did so on October 27, 1791.

The issue at hand was not fugitive slaves but instead the extradition of fugitives from justice (namely, the three Virginian kidnappers). Perhaps because Article IV, Section 2, of the Constitution addresses these subjects together, the two subjects were joined when the House of Representatives appointed a committee to draft a law dealing with both fugitives from justice and fugitive slaves. Although the committee’s work did not result in adoption of a law, the House of Representatives had established the precedent that the subjects of fugitives from justice and fugitive slaves would be joined.

The Senate first appointed a committee in March 1792 to consider the dual problem of fugitives from labor and fugitives from justice. Chaired by George Cabot of Massachusetts, the three-man committee had two northern senators (from Massachusetts and Connecticut) and one southerner (from South Carolina). This committee, too, never reported a bill and was in essence dissolved when the Senate adjourned. At its next session, the Senate appointed a new committee to address the issue. George Cabot was named chair again, but now George Read of Delaware and Samuel Johnston of North Carolina—both from slave states—rounded out the committee. On December 20, Johnston reported out a bill that caused a heated debate in the Senate, likely because the bill encroached on state sovereignty by requiring state officers to execute federal law and spelled out substantial penalties for those who did not assist in capturing fugitives from justice. The Senate returned the bill to the committee and added to its membership Roger Sherman of Connecticut and John Taylor of Virginia.

Throughout the bill-drafting process, southerners proved ready to vote as a bloc when the issue was the protection of slave property. This did not mean that any measure supporting slavery would be passed—as Samuel Johnston’s failed bill indicates—but it did mean that slaveholders could command much better terms than northern abolitionists, who had little presence in these early congresses. The newly reconstituted committee—still dominated by senators from slave states—produced a brand-new bill, which was reported back to the Senate floor on January 3, 1793. The bill was debated and amended considerably and was finally passed and sent to the House of Representatives on January 17. After a minor revision to the section dealing with fugitives from justice, the House passed the bill, and it was signed into law on February 12, 1793, by President Washington.