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§ 17. The first Fugitive Slave Act (1793).—For some time, however, the provision of the Constitution remained unexecuted; and it is a striking fact that the call for legislation came not from the South, but from a free State; and that it was provoked, not by fugitive slaves, but by kidnappers. The case seemed to suggest that an act of Congress was necessary, more definite in conditions and detail than the provision of the Constitution.

A free negro named John was seized at Washington, Pennsylvania, in 1791, and taken to Virginia. The Governor of Pennsylvania, at the instigation of the Society for the Abolition of Slavery, asked the return of the three kidnappers; but the Governor of Virginia replied that, since there was no national law touching such a case, he could not carry out the request.⁶¹

On the matter being brought to the notice of Congress by the Governor of Pennsylvania,⁶² a Committee, consisting of Mr. Sedgwick, Mr. Bourne of Massachusetts, and Mr. White, was appointed in the House of Representatives to bring in a bill or bills "providing the means by which persons charged in any State with treason, felony, or other crime, who shall flee from justice, shall, on the demand of the executive authority of the State from which they fled, be delivered up, to be removed to the State having jurisdiction of the crime; also providing the mode by which a person held to service or labor in one State under the laws thereof, escaping into another, shall be delivered up on the claim of the party to whom such service or labor may be due."⁶³

A bill prepared by the House committee, of which Mr. Sedgwick was chairman, was reported, November 15, 1791;⁶⁴ but for some reason which does not appear, it was dropped, and a Senate committee, of which Calvert was chairman, was appointed, March 30, 1792, "to consider the expediency [of] a bill respecting fugitives from justice and from the service of their masters."⁶⁵ Nothing was done during this session, and, November 22, 1792, a second Senate committee was appointed, consisting of Johnston, Calvert, and Read,⁶⁶ and they submitted a bill, December 20, 1792.⁶⁷ Unfortunately, we have no details of the debate; but on December 28, a third Senate committee was appointed by adding Taylor and Sherman to the committee of November 22, and to them the bill was recommitted with instructions to amend.⁶⁸ At last, January 3, 1793, the bill was reported in a form not unlike that finally agreed upon.⁶⁹ Of the amendments offered, the text of only one is preserved in the Journals; it was for the insertion of a less sum than five hundred dollars as the penalty for harboring a fugitive, or resisting his arrest.⁷⁰ It was not adopted. After two debates, of which we have no record, the bill passed the Senate, January 18.⁷¹ In the House it seems to have elicited little discussion, and it passed, February 5, by a vote of 48 to 7.⁷² The bill became law by the signature of the President, February 12, 1793.⁷³

In thus uniting with the clause providing for the extradition of fugitives from justice one requiring the return of fugitive slaves, Congress was but following examples set in 1643 by the Articles of Confederation,⁷⁴ and again in 1787 by the Constitution.⁷⁵ From the scanty records, it is possible to discern only that there was serious difference of opinion in the Senate, and that the measure finally adopted was probably a compromise. In the one amendment stated, there is a faint protest against the harshness of the law.⁷⁶

§ 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