Prigg v. Pennsylvania (1842)
The so-called Fugitive Slave Clause of the Constitution, Article IV, Section 2, states, “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.” Though the Clause, of course, does not mention slaves at all—and Frederick Douglass would later suggest that it textually refers to indentured servants being held to their voluntary contracts—everyone at the time of its ratification knew that it indeed concerned slaves who had escaped bondage by fleeing (and thus becoming fugitives) in a so-called free state that was, nonetheless, constitutionally bound to return them to the state from which they came.
In 1793 Congress passed the first Fugitive Slave Act (a second one would be passed in 1850) setting out the procedures by which slavemasters (or hired slave catchers) would make their claims and gain legal custody over the fugitives. Quite remarkably, the constitutional issues raised by the act did not come before the Supreme Court for almost half a century. In Prigg v. Pennsylvania (1842), the Supreme Court, through Justice Joseph Story, a Massachusetts native and Harvard law school professor who described himself as antislavery, both upheld the law and, just as importantly, struck down Pennsylvania’s own attempt to regulate the process by which fugitives would be returned to bondage.
The facts of Prigg are especially grim. Edward Prigg was a Maryland-based slave catcher who captured Margaret Morgan and her children in Pennsylvania; she was married to a free black man, Joe Morgan, and in 1832 they had moved across the border from Maryland to Pennsylvania. Although there is good reason to think that she had been freed by a previous owner, the successor to his estate recognized no such freedom and sent Prigg and other slave catchers to recapture her. There is no plausible argument that the children were “fugitive slaves,” but that did not stop their being captured as well and sold to a slave trader for shipment to the deep South. Pennsylvania had attempted to prosecute Prigg for violating its “personal liberty” law that required slave catchers to appear before Pennsylvania courts and prove their case rather than simply “snatch” the alleged fugitive, as Prigg had in fact done. It was Prigg’s conviction that the Court, through Story, reversed, on the ground that Pennsylvania simply had no legal authority to put any stumbling blocks at all in the way of slave catchers.
Prigg may be usefully compared to the seminal case of McCulloch v. Maryland (1819). First, as in McCulloch, the Court finds an “implied power” of Congress to pass legislation even though the Constitution does not explicitly assign such a power to Congress. Secondly, also as in McCulloch, the consequence of this power is to displace the states from being able to make their own policies with regard to fugitive slaves. Both cases, therefore, are very much about the practical meaning of federalism, and both endorse strong national power while, at the same time, limiting the exercise of state power.
In some ways, Prigg is even more remarkable than McCulloch. McCulloch was based on an analysis of the assignment of powers to Congress in Article I, Section 8, of the Constitution, which culminates in the Necessary and Proper Clause that Marshall read, in effect, to grant Congress broader powers than those expressly set out in the text. But the Fugitive Slave Clause is not, of course, found in Article I at all. It is one of a basically unconnected series of clauses in Article IV. Several involve the obligations of states to one another, ranging from extradition of fugitives from justice and the return of fugitive slaves (though not named as such) to the duty to give “full faith and credit” to the legal enactments of other states. Section 1, the Full Faith and Credit Clause, concludes by stating that “the Congress may by general Laws” structure the process by which the laws of any given states will be “proved” in relevant litigation. Similarly, Section 3 explicitly gives Congress the power to admit new states to the union as well as to pass laws regarding the territories of the United States. However, the Fugitive Slave Clause, sandwiched in Section 2 between these two provisions, includes no such grant of power to Congress. One might interpret this lack as suggesting, with regard to Section 2, that although states do indeed have obligations to one another, Congress has no power to structure the means by which those obligations will be fulfilled.
Story rejected any such restrictive reading of the Constitution, largely because he believed that it would inflame southern slaveowners and, therefore, ultimately threaten the existence of the union itself, and the maintenance of the union was Story’s highest principle. Congress did, therefore, have the power to pass the Fugitive Slave Law. Moreover, he argued, Congress’s power was exclusive. That is, only Congress could legislate procedures for the return of alleged fugitives; states were without authority to pass the so-called personal liberty laws that gave the alleged fugitives some minimal due process rights. Chief Justice Roger Brooke Taney, in a concurring opinion, suggested that nothing barred states from passing laws involving fugitive slaves so long as they did not place a burden on slaveowners but, perhaps, made it even easier to regain claimed fugitives by allowing the slave catcher to go to a more conveniently located state court instead of one of the very few federal courts available in Pennsylvania. Justice John McLean wrote a lone dissent, but the Court was otherwise overwhelming in its emphasis on the importance of protecting the interests of slaveowners. The degree of protection is revealed most clearly in what is perhaps the most remarkable feature of Prigg, Story’s holding that slave catchers need not go to any court at all if their capture was “peaceful.” The Constitution was satisfied, he said, if slave catchers “peacefully” snatched a purported fugitive off any street in Pennsylvania and took her back to Maryland, where she would, at least in theory, be part of a legal proceeding to determine whether she was in fact a fugitive.
| BIBLIOGRAPHY:
Paul Finkelman, “Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story’s Judicial Nationalism,” Supreme Court Law Review (1995): 247–94; and Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North (Baltimore: Johns Hopkins University Press, 1974). |
Sanford Levinson
SEE ALSO: Fugitive Slave Provision: Article IV; McCulloch v. Maryland