§ 18. Discussion of the first act.—The provisions of the act of 1793 are quoted elsewhere;[77] their purport was as follows. The act provided at the same time for the recovery of fugitives from justice and from labor; but the alleged criminal was to have a protection through the requirement of a requisition, a protection denied to the man on trial for his liberty only. The act was applicable to fugitive apprentices as well as to slaves, a provision of some importance at the time. In the Northwest Territory there were so-called negro apprentices, who were virtually slaves, and to whom the law applied, since it was in terms extended to all the Territories. Proceedings began with the forcible seizure of the alleged fugitive.
The act, it will be observed, does not admit a trial by jury. It allowed the owner of the slave, his agent or attorney, to seize the fugitive and take him before any judge of a United States Circuit or District Court, or any local magistrate.[78] The only requirement for the conviction of the slave was the testimony of his master, or the affidavit of some magistrate in the State from which he came, certifying that such a person had escaped. Hindering arrest or harboring a slave was punishable by a fine of five hundred dollars. The law thus established a system allowing the greatest harshness to the slave and every favor to the master. Even at that time, when persons might still be born slaves in New York and New Jersey, and gradual emancipation had not yet taken full effect in Rhode Island and Connecticut, it was repellent to the popular sense of justice; there were two cases of resistance to the principle of the act before the close of 1793.[79]
Propositions of 1797 and 1802.
§ 19. Propositions of 1797 and 1802.—Until 1850 no further law upon this subject was passed, but as the provisions of 1793 were found ineffectual, many attempts at amendment were made. In 1796 a troublesome question arose out of the seizure, under the act of 1793, of four negroes who had been manumitted in North Carolina. A retroactive act of that State had declared them slaves again, and they had fled to Philadelphia where they were arrested. January 30, 1797, they petitioned Congress for relief, and after an exciting debate the House by a vote of 50 to 33 refused to receive the petition.[80] There is nothing in the scanty records which connects this case or petition with an attempt to amend the act; but it is altogether likely that it occasioned Murray's motion of December 29, 1796, for a committee to report on alterations of the law;[81] and that it led to the almost simultaneous appointment of a House committee on January 2,[82] and a Senate committee on January 3.[83] No report is recorded.
The coming on of difficulties with France, and the Alien and Sedition Acts of 1798, absorbed the popular attention. In 1800 debates on the slave trade and on the reception of petitions from free negroes began. January 22, 1801, a House committee was appointed to report a bill increasing the stringency of the act.[84] The bill was reported, but failed to be considered.[85] In the next Congress the matter was at last brought to an issue. A committee, of which Nicholson of Maryland was chairman, was appointed, December 11, 1801,[86] and reported only seven days later. The report was made a special order for December 21.[87] On that day no debate is recorded, but a petition from a free colored soldier of the Revolution was contemptuously denied reception.[88] January 14 and 15, the bill was debated freely, and from the debate and sundry amendments the character of the bill may be inferred. Not only harboring, but employing a fugitive, was made punishable; and it was ordained that every black employed must be furnished with an official certificate, and that every person who employed a negro must publish a description of him. Southern members "considered it a great injury to the owners of that species of property, that runaways were employed in the Middle and Northern States, and even assisted in procuring a living. They stated that, when slaves ran away and were not recovered, it excited discontent among the rest. When they were caught and brought home, they informed their comrades how well they were received and assisted, which excited a disposition in others to attempt escaping, and obliged their masters to use greater severity than they otherwise would. It was, they said, even on the score of humanity, good policy in those opposed to slavery to agree to this law."[89] This appeal to the humanity of the North failed to produce the requisite effect. On the test vote, January 18, 1802, every Southern member except two voted for the bill, every Northern member except five against it; the vote was 43 to 46, and the bill was laid aside.[90]
Propositions from 1817 to 1822.
§ 20. Propositions from 1817 to 1822.—For many years the question of amendment of the law does not appear to have come up in Congress. The abolition of the slave trade seems to have absorbed the attention of Congress. Several treaties were negotiated including clauses on the return of fugitives.[91] The question was brought up again in 1817 by Pindall of Virginia, who for several years urged a revision of the act. A committee of which he was chairman was appointed, December 15, 1817, and reported a bill, December 29, 1817.[92] This third proposition of general amendment led to a debate, January 26 and 29, 1818, in which for the first time we have a record of discussion on the principles of the act and its relations to human freedom. The opposition was based not only on constitutional, but on humanitarian grounds.[93] A petition of the Pennsylvania Abolition Society, asking for a milder law than that of 1793, added fuel to the discussion.[94]
The principle of the bill was that the fugitives should be surrendered by a requisition on the State Executive, as in the case of fugitives from justice: the question of proof was thus left to the courts of the State of the claimant, and there was to be no habeas corpus. The strongest expression of disapproval is found in the speech of Mr. Adams of Massachusetts, who said, "that, in guaranteeing the possession of slaves, the Constitution did not authorize or require the General Government to go as far as the bill proposed to render this bill effectual; that the bill contained provisions dangerous to the liberty and safety of the free people of color in other sections of the Union."[95] Mr. Rich of Vermont desired "that it might be so amended as to guard more effectually the rights of free persons of color. This motion he enforced by urging the oppressions to which these persons were now subjected, and the necessity of some regulation on the subject, which he thought might be very properly connected with this bill."[96] Mr. Livermore also showed that it exposed the colored men of the North to the peril of being dragged South, and there convicted.[97]
All these objections, however, were considered of little value by some who, like Smith of Maryland, thought that the subject of the free colored population and their protection should be treated separately, while Mr. Holmes of Massachusetts suggested that the operation of the writ of habeas corpus would render such acts of injustice improbable.[98] Mason, of the same State, objected to a trial by jury, which had been suggested, because "juries in Massachusetts would in ninety-nine cases out of one hundred decide in favor of the fugitives, and he did not wish his town [Boston] infected with the runaways of the South."[99]
Upon two constitutional points the opponents of the bill made a stand. Mr. Sergeant wished to change the bill materially, by making "the judges of the State in which ... slaves are seized the tribunal to decide the fact of slavery, instead of the judges of the State whence the fugitives escaped," but this was negatived by a large majority.[100]