Prigg v. Pennsylvania
Slavery, the Supreme Court, and the Ambivalent Constitution
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Slavery, the Supreme Court, and the Ambivalent Constitution
Ratings1
Average rating5
Margaret Morgan was born in freedom's shadow. Her parents were slaves of John Ashmore, a prosperous Maryland mill owner who freed many of his slaves in the last years of his life. Ashmore never laid claim to Margaret, who eventually married a free black man and moved to Pennsylvania. Then, John Ashmore's widow sent Edward Prigg to Pennsylvania to claim Margaret as a runaway. Prigg seized Margaret and her children-one of them born in Pennsylvania-and forcibly removed them to Maryland in violation of Pennsylvania law. In the ensuing uproar, Prigg was indicted for kidnapping under Pennsylvania's personal liberty law. Maryland, however, blocked his extradition, setting the stage for a remarkable Supreme Court case in 1842. In Prigg v. Pennsylvania, the Supreme Court considered more than just the fate of a single slavecatcher. The Court's majority struck down the free states' personal liberty laws and reaffirmed federal supremacy in determining the procedures for fugitive slave rendition. H. Robert Baker has written the first and only book-length treatment of this landmark case that became a pivot point for antebellum politics and law some fifteen years before Dred Scott. Baker addresses the Constitution's ambivalence regarding slavery and freedom. At issue were the reach of slaveholders' property rights into the free states, the rights of free blacks, and the relative powers of the federal and state governments. By announcing federal supremacy in regulating fugitive slave rendition, Prigg v. Pennsylvania was meant to bolster what slaveholders claimed as a constitutional right. But the decision cast into doubt the ability of free states to define freedom and to protect their free black populations from kidnapping. Baker's eye-opening account raises crucial questions about the place of slavery in the Constitution and the role of the courts in protecting it in antebellum America. More than that, it demonstrates how judges fashion conflicting constitutional interpretations from the same sources of law. Ultimately, it offers an instructive look at how constitutional interpretation that claims to be faithful to neutral legal principles and a definitive original meaning is nonetheless freighted with contemporary politics and morality. Prigg v. Pennsylvania is a sobering lesson for those concerned with today's controversial issues, as states seek to supplement and preempt federal immigration law or to overturn Roe v. Wade.
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Prigg v. Pennsylvania: Slavery, the Supreme Court, and the Ambivalent Constitution by H. Robert Baker
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Having read a few books on the cases involved in the fraught issue of slave law, I have been surprised to discover that this approach allows for a fascinating and insightful view of social history. The legal history approach requires that attention be paid to the facts, which in turn requires an analysis of social circumstances while acknowledging the limitations of actions available to the actors under the law at the time.
In this case, the issue was whether Pennsylvania could constitutionally enact a law that required out-of-state slave-catchers to comply with Pennsylvania state law before kidnapping an alleged slave to return that slave to slavery in a slave state. The legal issue was framed by an ambiguity in the Constitution's “fugitive slave clause” that failed to specify who would enforce fugitive slave rights.
The Fugitive Slave Clause (Article IV section 2) provides: “No person held to service or labour in one state, under the laws thereof, escaping into another shall, in consequences of any law or regulation therein, be discharged from such service or labour may be due, but shall be delivered up on claim of the party to whom such service or labour may be due.” Baker describes this as a guarantee that the Somerset principle would not apply among the states. (p. 29.) I think this is wrong: the Somerset holding applied to slaves voluntarily taken to England - not escaping to England. The Somerset holding remained a stare decisis in a number of cases until Dred Scott.
The ambiguity in the clause was that it did not specify to whom the claim would be made. There was virtually no federal enforcement mechanism until the 1830s and, so, one view was that the claim would be made to state courts under state laws, which could guarantee rights to those accused of having escaped to the free state, including the right to a jury trial or striking the testimony of the alleged master.
What is interesting in the light of the current belief that “America is a racist country” was the lengths that Northern free states went to protect Black citizens. Northern states universally passed laws forbidding the kidnapping of Black citizens without compliance with state claim laws. Further, the laws were written in such a way as to stack the decks in favor of the alleged slave, such as by requiring jury trials, which made enforcement of rights under the clause expensive and put the issue into the venue of Northern citizens who were not inclined to return Blacks to slavery. The 1830s saw Northern states enacting Personal LIberty Laws to protect Blacks from kidnapping by slave-hunters.
The particular facts of the case are illustrative of the issues. Margarett Morgan was born a slave in Maryland. She moved to Pennsylvania, allegedly after being freed her master. When her master passed away, his widow decided to reclaim Margarett. By this time Margarett had married a free Black citizen of Pennsylvania, Jerry Morgan, and had a child. In 1832, Margaret and Jerry moved to Pennsylvania. In 1837, Edward Prigg came into Pennsylvania and kidnapped Margaret back to Maryland after a desultory effort to comply with Pennsylvania law that would have given Margaret the right to a trial in Pennsylvania before a judge or jury hostile to slavery. Jerry Morgan persuaded the local sheriff to bring criminal charges against Prigg for kidnapping in violation of Pennsylvania's Personal Liberty Law.
The issue teed up for decision was whether could be held criminally responsible for kidnapping Margaret Morgan in violation of Pennsylvania's Personal Liberty Law.
Baker's book nicely goes through the legal precedents that existed prior to the 1842 decision in Prigg. The precedent could be fairly said to lean against Prigg. However, the United States Supreme Court found in Prigg's favor and struck down Pennsylvania's law. The majority opinion by Justice Story was a “nationalist” in the sense of elevating federal law over state law. Since the Congress had enacted the Fugitive Slave Law of 1790, it had spoken authoritatively and comprehensively on the subject. (This principal is applied today under the doctrine of federal preemption.) Since the Fugitive Slave Act provided a national right, federal law overrode contrary state law, leaving state's no role on the subject (outside of police power issues.) Baker writes that Justice Story “braided Lord Mansfield's Sommerset v. Stewart into his opinion.” Mansfield had held that slavery was not a natural right but required a positive law to create rights in slave. Story seems to accept the proposition that the Fugitive Slave Law provided such a basis. Later, in Dred Scott, the seeds planted by Story would bear fruit.
Chief Justice Taney went further in a concurrence that foreshadowed Dred Scott by arguing that the individual states had a positive duty to enact laws that assisted slaveowners in recovering fugitive slaves.
Justice John McLean wrote a dissent arguing that a “slave was a sensible and human being” who could be protected by the state, even if the master might have a superior claim to the slave's labor than the slave himself. McLean understood that Story's legal theory denied that free blacks had legal rights, although Story simply assumed that conclusion.
Here's a factoid that surprised me, and shows how complex history is. Baker discusses the significance of Jerry Morgan staying in slave Maryland for some time to be with his wife. Then, he notes:
“But it may have been a safer decision than we know. Hartford County, Maryland had a sizable and growing free black population. The number of free blacks living there doubled between 1790 and 1800, and nearly doubled again between 1800 and 1810. The percentage of blacks who were free also rose steadily during this period, rising from 18 percent in 1790 to 33 percent in 1810 to 41 percent in 1830. And the trend continued. By 1860, more than 67 percent of Hartford County's black population was free. In the legal borderlands, freedom and slavery coexisted.” (p. 103.)
The idea that over half of the black population in a Southern state would be free surprises me. My surprise speaks more to my own ignorance and the popular presentation that all blacks prior to 1865 were slaves. Clearly, there were free black populations throughout America, but we hear so little about them.
After the decision, Margaret Morgan and her child disappear from history into slavery. Jerry Morgan's life was even more tragic. In traveling to legal proceedings, he failed to have papers and was detained as a fugitive slave. In attempting to escape this legal predicament, he jumped ship and drowned.
The Prigg decision was one of many decisions understood by the North as indicating that the South had unbridled control over the nation. Worse still, Northern states were prevented from protecting their own citizens. In 1850, Congress passed a new Fugitive Slave Law that was viewed as more intrusive than the prior law.
We can see how the travesty of Dred Scott was built legal brick by legal brick. When I look back on the concrete, personal reality of this bit of history, I find it horrifying. My thoughts go to Jerry Morgan and how he lost everything in a life that was hard enough to begin with and had turned into a horror story.
