"The Fugitive Slave Law of 12 Feb. 1793 was enforceable. A conflicting Pennsylvania law was struck down as unconstitutional."You're relying on Judicial Activism? Really?????
No, just the Constitution itself, and the radical revisionist Congress of 1793, inclusive of the then-recent Framers of the Constitution, and the law those Framers passed, which was signed into law by that radical revisionist President, George Washington, during his first term of office, the first term by any President under the then-newly minted Constitution. Obviously, they did not know what they meant when they wrote the Constitution as their ideas of what they meant conflict with your 21st century interpretation of what they wrote, and we know that your knowledge of such thihngs is superior to that of the Framers. Pursuant to your 21st century rendition of what they meant, these slave owning framers meant to free all the slaves, but then they forgot about it, and then as congress critters, they passed this Fugitive Slave Act by a 48-7 vote during Washington's first term in office. Of course, that is what happened. /s
Annals of Congress
Fugitive Slave Law of February 12, 1793
The recorded vote indicates passage by 48-7 majority.
It appears in the official publication of all United States law, United States Statutes at Large, Volume 1, Part 2, pp. 302-05.
Instead of the Constitution?
Obviously not, as the Fugitive Slave Act was enacted in 1793 during the first term of George Washington to enforce what that Framing generation put into the Constitution.
Article I, Section 1, originally provided, in relevant part:
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.
Contrary to Douglass' claims, this referred to slaves, to nobody other than slaves, was never intended to refer to resident aliens, and was never applied to resident aliens. In the early days of the United States, Federal laws did not control voting rights. State laws permitted aliens to vote in Federal elections.
Article I, Sec 9 provides,
The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
The Constitution affirmatively prohibited any Federal attempt, prior to 1808, to curtail the slave trade via the taxing power by explicitly limiting the power to impose a prohibitive tax or duty upon such trade.
Article V provides,
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
The Constitution explicitly prohibited any amendment, prior to 1808, which would in any manner affect Article I, Section 1 or Section 9.
Nor was Article IV, Section 3 ambivalent:
No person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due.
That was aptly known as the Fugitive Slave Clause. Enforcement of this clause was the subject of the 1793 legislation known as the Fugitive Slave Act.
It is a shame that you will not READ the court opinion about which you make declarations that this unanimous opinion, written by a famous Massachusetts jurist, was somehow an example of "judicial activism."
Also for your consideration, here is the law of February 12, 1793 as it appeared in the United States Statutes-at-Large in 1845, with explanatory footnotes.
Statutes-at-Large, Second Congress, Sess. II. Ch. 7. 1793
pp. 302-305
Sidenotes omitted, footnotes converted to endnotes.
Feb. 12, 1793.CHAP. VII.—An Act respecting fugitives from justice, and persons escaping from the service of their masters, (a)/i>
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the executive authority of any state in the Union, or of either of the territories northwest or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled, and shall moreover produce the copy of an indictment found, or an affidavit made before a magistrate of any state or territory as aforesaid, charging the person so demanded, with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear: But if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged. And all costs or expenses incurred in the apprehending, securing, and transmitting such fugitive to the state or territory making such demand, shall be paid by such state or territory.
Sec. 2. And be it further enacted, That any agent, appointed as aforesaid, who shall receive the fugitive into his custody, shall be empowered to transport him or her to the state or territory from which he or she shall have fled. And if any person or persons shall by force set at liberty, or rescue the fugitive from such agent while transporting, as aforesaid, the person or persons so offending shall, on conviction, be fined not exceeding five hundred dollars, and be imprisoned not exceeding one year.
Sec. 3. And be it also enacted, That when a person held to labour in any of the United States, or in either of the territories on the northwest or south of the river Ohio, under the laws thereof, shall escape into any other of the said states or territory, the person to whom such labour or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labour,(b) and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the state, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken before and certified by a magistrate of any such state or territory, that the person so seized or arrested, doth, under the laws of the state or territory from which he or she fled, owe service or labour to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labour, to the state or territory from which he or she fled.
Sec. 4. And be it further enacted, That any person who shall knowingly and willingly obstruct or hinder such claimant, his agent or attorney in so seizing or arresting such fugitive from labour, or shall rescue such fugitive from such claimant, his agent or attorney when so arrested pursuant to the authority herein given or declared; or shall harbor or conceal such person after notice that he or she was a fugitive from labour, as aforesaid, shall, for either of the said offences, forfeit and pay the sum of five hundred dollars. Which penalty may be recovered by and for the benefit of such claimant, by action of debt, in any court proper to try the same; saving moreover to the person claiming such labour or service, his right of action for or on account of the said injuries or either of them.
APPROVED, February 12, 1793.
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(a) Fugitives from justice. Holmes v. Jennison, governor of Vermont, 14 Peters, 540.
A foreign government has no right, by the law of nations, to demand of the government of the United States a surrender of a citizen or subject of such foreign government, who has committed a crime in his own country, and is afterwards found within the limits of the United States. It is a right which has no existence without, and can only be secured by a treaty stipulation. Case of Jose Ferrierados Santos, 2 Brockenb. C. C. R. 493.
(b) Fugitives from labour. In an action for the penalty by the owner of a fugitive slave, for obstructing the plaintiff in arresting and seizing his slave, under the 4th section of the act of Congress of February 12, 1793, whether the alleged slave owes his service or labour, is a question for the jury to decide. Hill v. Low, 4 Wash. C. C. R. 327.
If the defendant knowingly obstructs the owner or his agent in seizing the fugitive, he cannot excuse himself against the penalty, by pleading ignorance of the law, or an honest belief that the person was not a fugitive from service or labour. Ibid.
Mere obstruction, hindrance, or interruption, is no offence under this act, unless it be interposed to prevent a seizure in the first instance, or a re-capture in case the fugitives after seizure should escape; and the offence in such case would be complete, although the owner should ultimately succeed in making the arrest. Ibid.
After the arrest is consummated, no subsequent obstruction, whilst the arrest continues, although it should afford an opportunity for escape, amounts to the offence; although it might possibly entitle the owner to an action at common law: or if an escape in consequence of the obstruction should happen, it might amount to the other offence, a rescue. Ibid.
The act of Congress, respecting fugitives owing service or labour, does not apply to slaves brought by their masters from one state to another, who afterwards escape or refuse to return. Ex parte Simmons, 4 Wash. C. C. R. 396.
A sojourner who brings his slave with him to Pennsylvania, cannot claim him as his slave, after he has resided there six months. He is free by the law of that state of March 1, 1780. Ibid.
Under the act respecting fugitives from service of February 12, 1793, the judge or magistrate has no power to issue a warrant to arrest the fugitive, or commit him after the investigation is over, and the certificate is granted; although in practice the judge commits de die in diem pending the examination. The whole power is to examine, decide, and grant, or refuse the certificate. Worthington v. Preston, 4 Wash. C. C. R. 461.
If after the certificate is granted, the owner of a slave delivers him to the gaoler, who receives him, he is not officially liable for an escape, even although the commitment were under a warrant from the examining magistrate. Ibid.
Neither is the gaoler liable for an escape, as bailor, if there was no contract to pay him a reward for safe keeping, unless gross negligence be proved. Ibid.
On a question of freedom or slavery, the same rules of evidence prevail as in other cases concerning the right of property. Baldwin’s C. C. R. 577.
A bill of sale is not necessary to pass the right to a slave. Ibid.
A citizen of another state, from which a slave absconds into the state of Pennsylvania, may pursue and take him without warrant, and use as much force as is necessary to carry him back to his residence. Ibid.
Such an absconding slave may be arrested on Sunday; in the night time; in the house of another, if no breach of the peace is committed. Ibid.
This right of the master results from his ownership, and the right to the custody and service of the slave by the common law, and the 11th section of the abolition law of Pennsylvania, and other laws of that state. It is the same right by which bail may arrest the principal in another state. Ibid.
The constitution of the United States does not confer, but secures the right to reclaim fugitive slaves against state legislation. Baldwin’s Rep. 579.
It is no offence against the laws of a state for a master to take his absconding slave to the state from whence he absconded. The offence consists only in taking a free person by force, under the act of Pennsylvania of 1820, and the act of 1780. Ibid.
No person has a right to oppose the master in reclaiming his slave, or to demand proof of property. A judge or magistrate cannot order his arrest or detention, without oath, warrant, or probable cause. Ibid.
The master may use force in repelling such opposition, or the execution of such order, and the officer who gives such order, and all concerned in its execution, are trespassers. Ibid.
It is historically well known that the clause in the constitution of the United States, relating to persons owing service and labour in one state escaping into other states, was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding states; and indeed was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted that it is constituted a fundamental article, without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevailing in the non-slaveholding states, by preventing them from intermeddling with or obstructing or abolishing the rights of the owners of slaves. Prigg v. Commonwealth of Pennsylvania. 26 Peters, 539.
The owner of a fugitive slave has the same right to seize and to take him in a state to which he has escaped or fled, that he had in the state from which he escaped ; and it is well known that this right to seize or recapture is universally acknowledged in all the slaveholding states. The court have not the slightest hesitation in holding, that under and in virtue of the constitution, the owner of the slave is clothed with authority in every state of the Union, to seize and recapture his slave; wherever he can do it without any breach of the peace, or illegal violence. In this sense, and to this extent, this clause in the constitution may properly be said to execute itself, and to require no aid from legislation, state or national. Ibid.
The constitution does not stop at a mere annunciation of the rights of the owner to seize his absconding or fugitive slave, in the state to which he may have fled. If it had done so, it would have left the owner of the slave, in many cases, utterly without any adequate redress. Ibid.
The constitution declares that the fugitive slave shall be delivered up on claim of the party to whom service or labour may be due. It is exceedingly difficult, if not impracticable, to read this language, and not to feel that it contemplated some further remedial redress than that which might be administered at the hand of the owner himself. “A claim” is to be made. Ibid.
“A claim” in a just juridical sense, is a demand of some matter as of right, made by one person upon another to do or to forbear to do some act or thing as a matter of duty. It cannot well be doubted, that the constitution requires the delivery of the fugitive “on the claim” of the master: and the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is intrusted. Ibid.
The clause relating to fugitive slaves is found in the national constitution, and not in that of any state. It might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government; nowhere delegated or intrusted to them by the constitution. On the contrary, the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, executive, or judiciary, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution. Ibid.
A claim to a fugitive slave is a controversy in a case “arising under the constitution of the United States,” under the express delegation of judicial power given by that instrument. Congress, then, may call that power into activity, for the very purpose of giving effect to the right; and if so, then it may prescribe the mode and extent to which it shall be applied; and how, and under what circumstances, the proceedings shall afford a complete protection and guarantee of the right. Ibid.
The provisions of the sections of the act of Congress of 12th February, 1793, on the subject of fugitive slaves, as well as relative to fugitives from justice, cover both the subjects; not because they exhaust the remedies, which may be applied by Congress to enforce the rights, if the provisions shall be found, in practice, not to attain the objects of the constitution: but because they point out all the modes of attaining those objects which Congress have as yet deemed expedient and proper. If this is so, it would seem, upon just principles of construction, that the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject; and by necessary implication prohibit it. For if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot be that the state legislatures have a right to interfere. Where Congress have an exclusive power over a subject, it is not competent for state legislation to interfere. Ibid.
The clause in the constitution of the United States, relating to fugitives from labour, manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control, or restrain. Any state law or regulation, which interrupts, limits, delays, or postpones the rights of the owner to the immediate command of his services or labour, operates, pro tanto, a discharge of the slave therefrom. The question can never be, how much he is discharged from; but whether he is discharged from any, by the natural or necessary operation of the state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive right. Ibid.
The constitutionality of the act of Congress relating to fugitives from labour, has been affirmed by the adjudications of the state tribunals, and by those of the courts of the United States. If the question of the constitutionality of the law were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it; and such extensive and uniform recognitions would, in the judgment of the court, entitle the question to be considered at rest. Congress, the executive, and the judiciary, have, upon various occasions, acted upon this as a sound and reasonable doctrine. Cited, Stuart v. Laird, 1 Cranch, 299. Martin v. Hunter, 1 Wheat. 304. Cohens v. The Commonwealth of Virginia, 6 Wheat. 264. Ibid.
The provisions of the act of 12th February, 1793, relative to fugitive slaves is clearly constitutional in all its leading provisions; and, indeed, with the exception of that part which confers authority on state magistrates, is free from reasonable doubt or difficulty. As to the authority so conferred on state magistrates, while a difference of opinion exists, and may exist on this point, in different states, whether state magistrates are bound to act under it, none is entertained by the court, that state magistrates may, if they choose, exercise the authority, unless prohibited by state legislation. Ibid.
The power of legislation in relation to fugitives from labour, is exclusive in the national legislature. Ibid.
The right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever state of the Union they may be found, is, under the constitution, recognized as an absolute positive right and duty, pervading the whole Union with an equal and supreme force; uncontrolled and uncontrollable by state sovereignty or state legislation. The right and duty are co~extensive and uniform in remedy,and operation throughout the whole Union. The owner has the same security and the same remedial justice, and the same exemption from state regulations and control, through however many states he may pass with the fugitive slave in his possession, in transitu, to his domicile. Ibid.
The act of the legislature of Pennsylvania upon which the indictment against Edward Prigg, for carrying away a fugitive slave, is founded, is unconstitutional and void. It purports to punish as a public offence against the state, the very act of seizing and removing a slave by his master, which the constitution of the United States was designed to justify and uphold. Ibid.
There is no general principle in the law of nations, which requires a surrender of a fugitive slave. The surrender must be required by compact. Jones v. Vanzant, 2 M‘Lean’s C. C. R. 596.
There is also the following from the debates of the Constitution.
June 1788
Elliot's Debates 3:452–54
Mr. George Mason. Mr. Chairman, this is a fatal section, which has created more dangers than any other. The first clause allows the importation of slaves for twenty years. Under the royal government, this evil was looked upon as a great oppression, and many attempts were made to prevent it; but the interest of the African merchants prevented its prohibition. No sooner did the revolution take place, than it was thought of. It was one of the great causes of our separation from Great Britain. Its exclusion has been a principal object of this state, and most of the states in the Union. The augmentation of slaves weakens the states; and such a trade is diabolical in itself, and disgraceful to mankind; yet, by this Constitution, it is continued for twenty years. As much as I value a union of all the states, I would not admit the Southern States into the Union unless they agree to the discontinuance of this disgraceful trade, because it would bring weakness, and not strength, to the Union. And, though this infamous traffic be continued, we have no security for the property of that kind which we have already. There is no clause in this Constitution to secure it; for they may lay such a tax as will amount to manumission. And should the government be amended, still this detestable kind of commerce cannot be discontinued till after the expiration of twenty years; for the 5th article, which provides for amendments, expressly excepts this clause. I have ever looked upon this as a most disgraceful thing to America. I cannot express my detestation of it. Yet they have not secured us the property of the slaves we have already. So that “they have done what they ought not to have done, and have left undone what they ought to have done.”Mr. Madison. Mr. Chairman, I should conceive this clause to be impolitic, if it were one of those things which could be excluded without encountering greater evils. The Southern States would not have entered into the Union of America without the temporary permission of that trade; and if they were excluded from the Union, the consequences might be dreadful to them and to us. We are not in a worse situation than before. That traffic is prohibited by our laws, and we may continue the prohibition. The Union in general is not in a worse situation. Under the Articles of Confederation, it might be continued forever; but, by this clause, an end may be put to it after twenty years. There is, therefore, an amelioration of our circumstances. A tax may be laid in the mean time; but it is limited; otherwise Congress might lay such a tax as would [Volume 3, Page 293] amount to a prohibition. From the mode of representation and taxation, Congress cannot lay such a tax on slaves as will amount to manumission. Another clause secures us that property which we now possess. At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws; for the laws of the states are uncharitable to one another in this respect. But in this Constitution, “no person held to service or labor 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 labor; but shall be delivered up on claim of the party to whom such service or labor shall be due.” This clause was expressly inserted, to enable owners of slaves to reclaim them.
This is a better security than any that now exists. No power is given to the general government to interpose with respect to the property in slaves now held by the states. The taxation of this state being equal only to its representation, such a tax cannot be laid as he supposes. They cannot prevent the importation of slaves for twenty years; but after that period, they can. The gentlemen from South Carolina and Georgia argued in this manner: “We have now liberty to import this species of property, and much of the property now possessed had been purchased, or otherwise acquired, in contemplation of improving it by the assistance of imported slaves. What would be the consequence of hindering us from it? The slaves of Virginia would rise in value, and we should be obliged to go to your markets.” I need not expatiate on this subject. Great as the evil is, a dismemberment of the Union would be worse. If those states should disunite from the other states for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.
As Madison stated, the Constitution expressly inserted the Fugitive Slave Clause to enable owners of runaway slaves to reclaim them. There can be no whitewashing of this history. No attempt at revisionist history can make the records disappear.