Last week we covered the elections of 1792, which gave us the Senators and Representatives for the third Congress, and also the reelection of George Washington.
The new Congress could have begun its session in March of 1793. In fact, the new Congress did not meet until December of that year. Following the December 1792 elections, the second congress continued to meet and pass legislation.
Fugitive Slave Act
In February, it took up the Fugitive Slave Act. Before we get into the substance, I need to make clear that the law was not called the Fugitive Slave Act. That is what everyone called it later. In fact, the text of the statute does not even use the word slavery.
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| Escaping Slaves |
The Constitution had already authorized this power. The Constitutional Convention had added a clause:
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.
In other words, if a person was a slave or under an indenture in one state, and they escaped to another state where they were free, that state would still be obligated to return them to the state where they were being held to service. In other words, they had to be returned to slavery or to complete their indenture, depending on the status of the person. The Constitution did not explain all the details, like how the process would work, what proof would be required to take the accused into slavery, or who would pay for all of this.
The incident that brought this to the attention of federal officials actually predated the ratification of the Constitution. In 1780, Pennsylvania passed its gradual abolition act, something we discussed back in Episode 241.
The law permitted slave owners to retain any slaves that they owned prior to the law’s passage. To comply, owners had to register their slaves with the state, and pay a $2 fee. The point of registration was to prevent slave owners from claiming that children of slaves born later were actually born before the date of the legislation, and also to prevent new slaves from being imported into the state. Any slave who was brought into Pennsylvania after the law’s passage, and remained there for at least six months, was automatically emancipated under the law.
A Maryland slave owner named Davis moved to the northern tip of Virginia, in what is today the northern panhandle of West Virginia, near Pittsburg. The border between Virginia and Pennsylvania was unclear at the time. It eventually was determined that Davis’ farm was over the line in Pennsylvania. Because of the confusion, Pennsylvania extended the deadline for registering slaves in that area for people in that area, who had thought they were living in Virginia. Davis still failed to register his slaves, and instead continued to keep his slaves working on his farm in Pennsylvania. Under Pennsylvania law, they were free. I guess no one told the slaves there at the time.
It did not become an issue until 1788. It’s not clear what happened, but there was a local chapter of the Pennsylvania Abolition Society becoming active in the area, so Davis might have become concerned that his enslavement was illegal at this point. He took his slave John back over the line a few miles to the west into Virginia and rented him to a neighboring farm.
Several of John’s neighbors were upset by this. They traveled into Virginia, found John, and brought him back to Pennsylvania where he was a free man under the law. The Virginia farmer who had rented John then hired three Virginians to cross back into Pennsylvania and bring John back to his farm as a slave. He then moved John to another part of the state where it would not be easy for the Pennsylvanians to get him back.
For Pennsylvania, this was a case of kidnapping. John had lived in Pennsylvania for years, and under state law was a free man. Officials indicted the three Virginians on charges of kidnapping. Governor Mifflin of Pennsylvania sent a request to Virginia to extradite the accused men for trial. The Abolitionist Society also hired an attorney to have John returned to freedom in Pennsylvania.
Virginia refused to act on the extradition requests. The three alleged kidnappers remained free in Virginia. John remained enslaved in the eastern part of the state. Three years after the kidnapping, nothing had changed. Virginia refused to turn over anyone, while the case of a free black man who had been kidnapped and enslaved in Virginia was drawing more attention in Pennsylvania.
Virginia’s attorney general refused to take any action, writing that the kidnapping of a free black man was not a felony in Virginia and would not be considered for extradition. The kidnappers had not violated Virginia law nor federal law. Therefore, Virginia had no authority to arrest them or extradite them.
Both Pennsylvania and Virginia sent their legal arguments to President Washington, who turned them over to his Attorney General Edmund Randolph. The attorney general found issues with the claims of both states. The Pennsylvania faults were mostly technical, not providing an authenticated copy of the law that had been broken. Randolph also rejected Virginia’s claim that it could not arrest someone who had broken a law in another state, even if the act would have been legal in Virginia. Randolph recommended to Washington that he tell the Pennsylvania Governor to correct the technical errors with their extradition request and then resubmit their claim to Virginia.
Virginia still refused to turn over the kidnappers. Local Virginians in the area accused the Pennsylvania Abolition Society of stealing other slaves and carrying them to freedom in Pennsylvania. The case was becoming a politically charged issue in both states.
In the fall of 1791, Washington sent the whole mess to Congress, with a request that they come up with some laws that would cover the extradition of accused criminals as well as the return of fugitive slaves.
By this time all of New England, as well as Pennsylvania had either abolished slavery or passed a law that would gradually abolish it. Among northern states only New York and New Jersey had not passed any abolition law. While there was a growing abolition movement in many states, the overall consensus still favored slave ownership and the return of escaped slaves.
Still Congress had to come up with an acceptable law that detailed how extraditions would be handled. Congress did what they always did: form a committee to study the matter. The committee consisted of two members from Massachusetts, one of whom was Theodore Sedgwick, who years earlier had litigated the cases that ended slavery in Massachusetts. Also on the committee was Virginia Slave owner, Alexander White.
The committee came up with a process for the return of either accused criminals or suspected runaway slaves. Someone would have to file a valid application for an arrest warrant to the governor of the state. The governor would then issue warrants to law enforcement to have them arrest the fugitive. If arrested, the accused would be turned over to the purported owner of the slave, or to state authorities in the case of accused criminals. There was no right of due process for the accused before extradition, and those making the claim that a person was enslaved did not even have to submit a claim under oath. The bill also imposed heavy fines on anyone who interfered with the return of a slave or for officials who refused to act on warrants. The House ended up never considering the committee recommendation and instead waited for the Senate to propose its own bill.
Congress adjourned for the year, and returned in March of 1792. The Senate appointed its own committee, but that committee never reported back before the session ended in May. The Senate reappointed the committee in November, after its return.
By this time it was more than a year since Congress began considering the matter. The first Senate bill, offered on December 20, 1792, was even more in favor of the slave owners. It required all citizens to participate in the capture of fugitives, and imposed fines and jail time for anyone who refused to help. It permitted the return of slaves based on the deposition of just one credible person, without even requiring it to be under oath. It also proposed a daily fine for anyone who harbored or concealed a fugitive. That fine would be paid to the slave owner.
Senators threw out that bill and began consideration of a second bill. This second bill did not require people in the free state to participate in the capture of an alleged fugitive. Slave owners or their agents were free to seize someone themselves, without obtaining a warrant. However, they would be required to bring the captured person before a judge or magistrate before trying to leave the state and to prove to the satisfaction of the judge that this person was still bound to service. This would require sworn testimony or affidavits. The bill also proposed a statute of limitations. If a black person had lived in a free state as a free person for a certain number of years, the exact number was not added, removal would not be permitted.
Senators from slave states were unhappy with his bill after more than a week of debate. So they submitted a third bill for consideration. This bill removed the statute of limitations restriction. While it did not require locals to help capture the alleged fugitive, it did restore fines for anyone who actively tried to obstruct or hinder the capture. It allowed slave owners to sue for damages in federal courts for anyone who tried to prevent the capture of their slaves. In addition to civil damages, those who hindered a capture could be fined $500.
Local law enforcement could not be forced to help capture fugitives, but it gave private slave catchers a pretty free hand in capturing anyone they wanted without hindrance.
The Senate passed the bill and sent it to the House, which made a few minor technical changes. Both the House and Senate approved the bill overwhelmingly. After both houses passed the final bill, it went to President Washington, who signed the bill on February 12, 1793.
As for the incident that started this whole matter - none of the kidnappers from Virginia were ever extradited for trial, and John remained enslaved for the rest of his life in Virginia.
Other business
With the fugitive slave act complete, Congress turned to other business. One bill that they took up just days after completing the fugitive slave act was an amendment to the patent process. Under the law passed in 1790, Thomas Jefferson had to make a determination about whether a patent application was sufficiently important or useful to justify receiving a patent.
Jefferson hated this work. He did not have enough time to evaluate each application properly and was essentially forced to make a decision without really knowing enough to make an informed decision. Jefferson wanted the process changed so that he did not have to spend so much time on this.
The patent act signed into law on February 21, 1793 granted patents pretty much automatically. It became a clerical function that did not require much research or deliberation. If someone wanted to challenge a patent, they could take it to court and let a judge decide.
Another issue before Congress was the fact that states, and even private individuals, were buying Indian land to open up more lands for settlers. Congress approved a new law requiring that no sale of lands would be valid unless it was conducted through public treaty by the federal government. Since land sales made under questionable authority could lead to more war with the Indians, Congress wanted to control this process. President Washington signed the bill into law on March 1.
Congress also took up amendments to the Judiciary Act. I mentioned last week Chief Justice John Jay was considering quitting because of the miserable experience of having to ride around the country on circuit to hear appeals. Jay and other justices petition both President Washington and members of congress to eliminate what one justice called “exile from our families” for half of each year. In January, 1793, Justice Thomas Johnson resigned, citing the hardship of riding circuit.
At the end of 1792, Washington gave another State of the Union Address calling for judicial reform. What the justices wanted was more judges to hear cases. They wanted appellate judges, who could hear appeals, then the Supreme court could be a secondary appeal. Under the current system, circuit justices would hear appeals and rule on them, then if the case got appealed to the Supreme Court, they would have to rule on it again. Having the same person rule on the same case twice was something that many justices considered unconstitutional.
Congress considered the idea of adding appellate judges, and rejected it. Members of Congress thought circuit riding was important so that the justices were forced to have more of a connection to the localities across the country. They also did not want to pay for a whole new level of judges. Instead, they reduced the circuit riding a little by no longer requiring that three justices ride together on each circuit. Rather, one Justice would hear cases, thus the work could be spread out a little more.
Congress did take one thing off their plate. Justices were also expected to review and rule on pension claims for Revolutionary War veterans. They had to evaluate whether a veteran was destitute and disabled enough to qualify for a pension. A fight over this took place during 1792 when a circuit court held that the Pension Act was unconstitutional and refused to consider any applications. Attorney General Randolph argued this point to the Supreme Court, but the Court then had a problem with half the justices arguing that the Attorney General could not seek a writ of Mandamus unless the president explicitly authorized him to do so. Randolph got around that problem by leaving the court, and coming back a few hours later saying he had received authorization to argue this case, not as attorney general, but as the personal attorney for one of the pension applicants. The Court refused to rule on the case and held it over to the next session.
Before the next session met, Congress acted. The new law moved responsibility for pension applications from the circuit courts to the federal district courts, and also authorized the appointment of several commissioners to assist with the processing of pension applications.
The bill also put some limits on federal courts, including preventing them from issuing injunctions related to state court activities. The House and Senate both passed bills, which President Washington signed into law on March 2, 1793.
Washington’s Second Term Begins
On that same day, the Second Congress concluded its business and adjourned. The new Congress could have started the next day, but instead would not meet for another nine months. President Washington’s second term, however, began immediately. The President took the oath of office to begin his second term on March 4.
Unlike his first inauguration, which included ceremony, public celebration, and a parade, the second inaugural was a low key affair. Washington rode in a coach to Congress Hall. At noon, in the Senate chamber, Associate Justice William Cushing issued the oath of office as Vice President Adams, Thomas Jefferson and members of the House and Senate watched.
Washington then gave the shortest inaugural speech in history. It is so short, I’ll read it in full here:
Fellow-Citizens:
I am again called upon by the voice of my country to execute the functions of its Chief Magistrate. When the occasion proper for it shall arrive, I shall endeavor to express the high sense I entertain of this distinguished honor, and of the confidence which has been reposed in me by the people of United America.
Previous to the execution of any official act of the President, the Constitution requires an Oath of Office. This Oath I am now about to take, and in your presence: That if it shall be found during my administration of the Government I have in any instance violated willingly, or knowingly, the injunction thereof, I may (besides incurring Constitutional punishment) be subject to the upbraidings of all who are now witnesses of the present solemn ceremony.
That was it. After that, Washington left the building. A small crowd had gathered and gave the President three cheers as he climbed back in his carriage. He was back home by 1:00. With that, Washington’s second term as President began.
Next Week: we will begin discussion of the first crisis of Washington’s Second term: the Citizen Genêt Affair.
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Next Episode 380 Fugitive Slave Act of 1793 (coming soon)
Previous Episode 378 Kentucky Joins the Union
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Further Reading
Websites
Fugitive Slave Acts: https://www.history.com/articles/fugitive-slave-acts
Fugitive Slave Act of 1793 [text of statute] https://docsteach.org/document/fugitive-slave-act-1793
Fugitive Slave Act of 1793 [text of statute] https://www.mountvernon.org/education/primary-source-collections/primary-source-collections/article/fugitive-slave-act-of-1793
First Fugitive Slave Law: https://www.ebsco.com/research-starters/history/first-fugitive-slave-law
“Enclosure: Statement of Conflict between Pennsylvania and Virginia, 20 December 1791,” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-22-02-0398.
“George Washington to the United States Senate and House of Representatives, 27 October 1791,” Founders Online, National Archives, https://founders.archives.gov/documents/Washington/05-09-02-0068
David, C. W. A. “The Fugitive Slave Law of 1793 and Its Antecedents.” The Journal of Negro History, vol. 9, no. 1, 1924, pp. 18–25. JSTOR, https://doi.org/10.2307/2713433
Finkelman, Paul. “The Kidnapping of John Davis and the Adoption of the Fugitive Slave Law of 1793.” The Journal of Southern History, vol. 56, no. 3, 1990, pp. 397–422. JSTOR, https://doi.org/10.2307/2210284
Sebok, Anthony J. “Judging the Fugitive Slave Acts.” The Yale Law Journal, vol. 100, no. 6, 1991, pp. 1835–54. JSTOR, https://doi.org/10.2307/796788
An Act to Regulate Trade and Intercourse With the Indian Tribes. https://www.govinfo.gov/content/pkg/STATUTE-1/pdf/STATUTE-1-Pg329.pdf
“Supreme Court Justices to George Washington, 9 August 1792,” Founders Online, National Archives, https://founders.archives.gov/documents/Washington/05-10-02-0425
Creating the Federal Judicial System: https://www.fjc.gov/sites/default/files/2012/Creat3ed.pdf
The Judiciary Act of 1793 [text] https://en.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_1/2nd_Congress/2nd_Session/Chapter_22
Second Inaugural Address https://millercenter.org/the-presidency/presidential-speeches/march-4-1793-second-inaugural-address
Free eBooks
(from archive.org unless noted)
The Rendition of Fugitive Slaves: The Acts of 1793 and 1850, and the Decisions of the Supreme Court Sustaining Them, National Democratic Campaign Committee, 1860.
Brant, Irving James Madison: Father of the Constitution, 1787-1800. Bobbs-Merrill Co. 1950 (borrow only).
Finkelman, Paul Slavery in the Courtroom: An Annotated Bibliography of American Cases, Washington: Library of Congress, 1985.
McDougall, Marion G. Fugitive Slaves (1619-1865), Boston: Ginn & Co. 1891.
Spencer, Ichabod S. Fugitive Slave Law. The Religious Duty of Obedience to Law; a sermon preached in the Second Presbyterian Church in Brooklyn, Nov. 24, 1850, New York: M.W. Dodd, 1850.
Spooner, Lysander. A Defence for Fugitive Slaves, Against the Acts of Congress of February 12, 1793, and September 18, 1850. Boston: Bela Marsh, 1850.
Pellew, George John Jay, Houghton, Mifflin, and Co. 1890.
Books Worth Buying
(links to Amazon.com unless otherwise noted)*
Campbell, Stanley. The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860. Chapel Hill: University of North Carolina Press, 1970.
Chervinsky, Lindsay M. The Cabinet: George Washington and the Creation of an American Institution, Belknap Press, 2020.
Elkins, Stanley M. and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788–1800, Oxford Univ. Press, 1993 (borrow on archive.org).
Ellis, Joseph J. His Excellency. George Washington, Alfred A. Knopf, 2005.
Finkelman, Paul Slavery and the Founders: Race and Liberty in the Age of Jefferson, Armonk, 2001.
Hunger, Harlow Giles Mr. President: George Washington and the Making of the Nation's Highest Office, De Capo Press, 2013.
Leibiger, Stuart Founding Friendship George Washington, James Madison, and the Creation of the American Republic, Univ. of Virginia Press, 1999.
Meacham, Jon Thomas Jefferson: The Art of Power, Random House, 2012
Morris, Thomas D. Free Men All: The Personal Liberty Laws of the North, 1780-1861. Baltimore: Johns Hopkins University Press, 1974.
Newman, Richard S. The Transformation of American Abolition: Fighting Slavery in the Early Republic, Chapel Hill: University of North Carolina, 2002.
Randall, Willard Sterne Thomas Jefferson: A Life, Henry Holt and Co. 1993.
Wilson, Carol Freedom at Risk: The Kidnapping of Free Blacks in America, 1780–1865,
* As an Amazon Associate I earn from qualifying purchases.
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