March 1, 1842 – The U.S. Supreme Court Decided Prigg v. Pennsylvania

Prigg v. Pennsylvania, 41 U.S. 539 (1842) is considered to be one of the most important Supreme Court decisions on slavery.  In this case, a badly split court (the decision included seven separate opinions, a rare practice in antebellum America), held that a Pennsylvania state law prohibiting Blacks from being taken out of Pennsylvania into slavery was unconstitutional.

The Fugitive Slave Clause of the U.S. Constitution (Article 4, Section 2, Clause 3 superseded by the Thirteenth Amendment) provided: 

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 clause clearly prohibited the Northern states from “discharging” any former slaves from their obligations of “service or labor,” but did not provide a mechanism for slave owners to recover their slaves.  The clause said only that the slaves shall be “delivered up” [by whom is unstated] upon assertion of a “claim.”   

Congress passed the 1793 Fugitive Slave Act to provide specific procedures and remedies for slave owners. However, Sections 3 and 4, which dealt with the rendition of fugitive slaves, neither vested responsibility for the enforcement of the law in any person or official nor set a standard by which the seized person’s status as a fugitive was to be proved.

In 1826 Pennsylvania passed an extensive anti-kidnapping law, making it difficult under Pennsylvania law to kidnap Blacks or mulattos to take them into slavery or servitude.

In 1837, Edward Prigg entered the state of Pennsylvania as the agent of Margaret Ashmore, a slave owner from Maryland, in order to find Ashmore’s alleged escaped slave Margaret Morgan. Pennsylvania law required Prigg to show documentary evidence proving Ashmore’s ownership for the legal removal of Morgan and her two children.  The state magistrate to whom Prigg submitted his evidence denied his “claim.” Prigg seized the family nonetheless, and removed them to Maryland.  Indicted and convicted under Pennsylvania’s anti-kidnapping statute, Prigg appealed on the grounds that Pennsylvania’s law violated both Article IV of the Constitution and the federal Fugitive Slave Law of 1793.

The case raised numerous issues, among them the complicated definition of the status of Margaret Morgan, the supposed slave in question. Her parents had been the slaves of a Marylander named Ashmore. Without formally emancipating them, sometime before 1812 he allowed them to live as free Blacks.   Margaret was born subsequent to this informal declaration.  She grew up and married a free Black, and they moved across the state line to Pennsylvania, all with the acquiescence of the senior Ashmore. Regardless of their status, their several children were free under Pennsylvania law. 

When Ashmore died, his estate passed to his niece Margaret. Her husband, Nathan Bemis, hired Prigg and two others to go with him to retrieve and enslave Margaret Morgan. Historian Paul Finkelman opines:

The fact that Bemis and Prigg were immediately able to locate Morgan suggests that she did not see herself as a fugitive slave and had never tried to hide her whereabouts from Ashmore or his niece. That the Morgans lived along the Maryland border also suggests they believed Margaret was a free person.”  (Paul Finkelman, “Sorting out Prigg v. Pennsylvania,” 24 Rutgers L.J. 605, 611 1992-1993)

 

Nevertheless, and after being denied authorization by a Pennsylvania Justice of the Peace, Prigg and Bemis took Margaret and the children (but not the husband) to Maryland where they were sold to a trader for shipment to the South.  Clearly Bemis was not interested in getting back a slave but in punishing a presumptuous Black. However, the Fugitive Slave Act placed no limitations on what could or could not be done with recovered slaves. In any event, the question of whether Margaret and her children should have even been considered as slaves was a fuzzy one.

(Justice McLean, in dissent, addressed these ambiguities extensively).

In addition, the case highlighted the increasing animosities between slave and free states, which did not always cooperate with one another in matters of extradition.  (The Supreme Court did not decide whether states could be compelled to cooperate with extradition requests until Kentucky v. Dennison, 65 U.S. (24 How.) 66, 1861.)

Most importantly, the case raised the issue of the interplay of state and federal power.  

Writing for the Court, Justice Joseph Story reversed Prigg’s conviction, ruling that the Pennsylvania act was unconstitutional, at least as applied to fugitive former slaves.

Justice Joseph Story, 1844

He held that Congress had exclusive jurisdiction in this area, citing The Federalist to bolster his argument that the rights and duties imposed by the Constitution implies a remedy, “and where else would the remedy be deposited (Madison asked in The Federalist), than where it is deposited by the Constitution?”  (Prigg at 617).  But while all of the justices agreed that the states could not pass laws creating additional requirements to the federal law or impeding the return of fugitive slaves, they disagreed on how to define these terms; what obligation state officials had to aid in the rendition process; and if they did have such an obligation, what it should be.

Justice Story noted that the section of the Act of 1793 conferring jurisdiction on state magistrates was very troublesome, expressing doubt that Congress had power to compel state judges to act.  He stated that state officials had no obligation to enforce federal penal law in this area because the Constitution does not provide for “any state functionaries, or any state action, to carry its provisions into effect.” (at 615) Presumably Story was trying to lay the basis for a possible legislative attack upon slavery in the future.  His son, at any rate, in his biography of his father (Life and Letters of Joseph Story by William Wetmore Story) argued that his father’s opinion constituted a not-too-subtle sabotage of the practical enforceability of the Fugitive Acts.

Others, however, argue that Justice Story actually aided in nationalizing the institution.  As Finkleman observes:

Any notion of freedom – or even of the localization of slavery – in the opinion has to be balanced against Story’s assertions that the master’s right to his slave was “positive,” “unqualified,” and “absolutely secured.”  As Story’s greatest biographer noted, “[H]ere, in language all too plain for some, was an argument for the return of fugitive slaves anchored solidly in the Constitution and backed by the greatest living authority on American constitutional law.” (citations omitted; Finkleman, op. cit. at 659)

The question of interpretation is relevant because Justice Story was known as a passionate advocate of abolition.  In 1819, he even publicly called for the eradication of slavery from the territories.  He also wrote the famous opinion for United States v. The Amistad (40 U.S. 518, 1841)  ruling that the Africans on board the Amistad were free individuals; that having been kidnapped and transported illegally, they had never been slaves.

On the other hand, he recognized that appeasing the slave-holding states had been necessary to make an American union possible, and in Prigg even characterized the Fugitive Slave Act as an indispensable element in that regard.  He wrote that the Constitution gave slave holders:

…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 constituted a fundamental article without the adoption of which the Union could not have been formed.” (Prigg at 540)

In spite of his personal loathing of the Fugitive Slave Act, he perceived his primary obligation to be to the Constitution.  Of course, Lincoln’s position was quite similar, and like Story, Lincoln decided that although the rule of law should obtain, there was more than one way to skin the cat.

But both Story and Lincoln faced a formidable obstacle in the Chief Justice of the Supreme Court, Roger Taney, whose concurrence in Prigg  averred:

I dissent, therefore, … from that part of the opinion of the court which denies the obligation and the right of the state authorities to protect the master, when he is endeavoring to seize a fugitive from his service, in pursuance of the right given to him by the constitution of the United States; provided the state law is not in conflict with the remedy provided by congress.”

The Prigg decision angered opponents of slavery.  As the famous abolitionist Wendell Phillips lamented the next year, when another fugitive slave challenge arose:

There stands the bloody [fugitive slave] clause – you cannot fret the seal off the bond.  The fault is in allowing such a Constitution to live an hour….”  (W. Phillips, Speech at Faneuil Hall, Boston, Oct. 30, 1842, quoted in I. Bartlett, Wendell Phillips: Brahmin Radical, 1961)

Following Prigg, however, some state judges refused to participate in federal fugitive slave proceedings, and there were not enough federal magistrates to process applications. Southern slaveholders then agitated for new legislation, which they received as part of the famous “Compromise of 1850,” a package of legislative measures enacted by Congress to reconcile the differences existing between the North and South concerning the issue of slavery in newly formed U.S. territories. The Fugitive Slave Act of 1850 authorized the appointment of a federal commissioner in every county in the United States who could issue certificates of removal for fugitive slaves. It also added additional punishments for lack of citizen cooperation, and denied a slave the benefit of a trial. The statements of the alleged slave’s owner (who did not even have to appear in court) would constitute sufficient evidence for the action.

It would take a war to imbue the Constitution with moral justice.