Before Dred Scott v Sanford there was Prigg v Pennsylvania

jgoodguy

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Originally the sense of unity of the States was strong, but friendly to slavery. Fugitive slaves were returned promptly. As the Northern States evolved into the Free States, issues arose about protecting their black citizens. In the South, all blacks were presumptively slaves. In the North, that did not exist and the opposite presumption existed: all blacks were presumptively free. The Civil War will grow out of that clash of presumptions. This clash will lead to a breakdown of comity, where States once respected each other's laws but later did not and made SCOTUS the final arbitrator. Eventually, everyone lost faith in SCOTUS. This thread will take a look at Prigg v Pennsylvania and especially Justice Story from a Free State but that sided with the slaveholders.

From
Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism
Christopher L.M. Eisgruber


Justice Joseph Story proclaimed his opinion for the Supreme Court in Prigg v. Pennsylvania to be a "triumph of freedom."' The Court's decision in that 1842 case held unconstitutional a Pennsylvania law opposed by slaveholders because the statute interposed procedural barriers to the recapture of escaped slaves. Few commentators have shared Story's assessment of his opinion, and in recent years several prominent scholars have criticized Story's treatment of the slavery question on both ethical and jurisprudential grounds.

I. THE CASE OF Prigg v. Pennsylvania
A. Facts of the Case

Article IV, section 2, paragraph 3 of the Constitution provides" that "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 La- bour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due." Although the cleverly worded clause neither expressly mentions nor implicitly authorizes slavery,5 the clear intent of the clause was to give the Southern states some guarantee that slaveowners could recapture slaves who had escaped to the North. But as Thomas Morris points out, the clause is less clear about the means by which such recapture should occur, and about who, if anyone, should legislatively implement the clause. Is the recapture of escaped slaves a matter for Congress, the states, or both?6 The question was hotly disputed prior to the Civil War. The Southern states were interested primarily in effective and efficient processes of recapture. This interest conflicted with that of the Northern states, where citizens sought to protect free blacks and (at least in some circles) emancipate enslaved blacks. Prigg presented to the Supreme Court the question of who had legislative authority to sort these interests and enforce the clause.

Footnotes.
3 My treatment of this topic owes much to Herbert J. Storing, Slavery and the Moral
Foundations of the American Republic, in Robert H. Horwitz, ed., The Moral Foundations
of the American Republic 214 (1977) ("Slavery and the Republic"). Storing's essay men-
tions, without discussing in detail, Story's opinion in Prigg. Id. at 218.
4 The provision is, of course, now a nullity because of the enactment of the thirteenth
amendment.
I It would be consistent with the words of the fugitive slave clause to argue that those
persons held to service or labour in one state may not be freed in another, but that no
persons may legitimately be enslaved in any state. See Storing, Slavery and the Republic at
221, 223-25 (cited in note 3).
' Thomas D. Morris, Free Men All 18 (1974).
 

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From
Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism
Christopher L.M. Eisgruber
 P275-6

Background info.

Sometime during 1832, Margaret Morgan, a black woman enslaved for life to Margaret Ashmore, escaped from Ashmore's Maryland residence and fled to Pennsylvania. For the next five years, Morgan lived in Pennsylvania with her husband and her children. But then in February 1837, Edward Prigg, acting as Ashmore's legal agent, went to Pennsylvania to capture Morgan and return her to slavery.

In order to effect Morgan's return, Prigg had to abide by a March 1826 act of the Pennsylvania legislature entitled "An act to give effect to the provisions of the Constitution of the United States relative to fugitives from labour, for the protection of free people of colour, and to prevent kidnapping." The statute established a state process for the rendition of fugitive slaves that required slavechasers like Prigg to appeal to a Pennsylvania "judge, justice of the peace or alderman" for a warrant directing a sheriff or similar officer to arrest the alleged fugitive. After arrest, the alleged fugitive had to be brought before the same magistrate who had issued the warrant; this magistrate would preside over proceedings designed to determine the verity of the slavecatcher's claims. The act also declared that no Pennsylvania alderman or justice of the peace had jurisdiction over, or would take cognizance of, claims arising under the Fugitive Slave Act passed by Congress in 1793.8

Prigg appeared before Thomas Henderson, justice of the peace for York County, Pennsylvania, in February of 1837 and obtained the necessary warrant. Yet when officers brought Morgan before Henderson, the justice of the peace refused, for reasons not ex- plained in the record, to take any further cognizance of the matter. Prigg nonetheless took Morgan and her children back to Maryland, thereby violating Pennsylvania law. Prigg was arraigned and charged in York County on April 1, 1837; he pled not guilty and was tried May 22, 1839. The jury found by special verdict the facts summarized in this and the preceding paragraph, and the court pronounced Prigg guilty of kidnapping. Prigg prosecuted succes- sive writs of error, first to the Supreme Court of Pennsylvania and then, after the Pennsylvania court affirmed conviction, to the United States Supreme Court.9
7 Prigg, 41 U.S. at 556-57.
8 Id. at 550-56.
9 Id. at 543, 556-57.
 

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Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism
Christopher L.M. Eisgruber[ P275


B. The Fugitive Slave Act and the Personal Liberty Laws

The problem is to protect Slaveholder property rights while allowing States to protect their free black citizens from kidnapping. The citizenship issue will be addressed in Dred Scott by Taney ruling that African Americans have no rights nor citizenship. Processes and procedures will need to be addressed and created. There will be conflicting views of States' Rights to resolve.

In order to appreciate the issues raised by Prigg, it is essential to understand the national importance of the fugitive slave prob- lem in 1842, when Prigg was decided. Throughout the nation's history, the efforts of Southern slaveholders to recapture escaped slaves generated two related political problems. Initially, the state and federal governments had to decide how to secure the rights apparently guaranteed to slaveowners by the fugitive slave clause: what processes, if any, were appropriate to regulate the recapture of slaves? At the same time, the governments had to find a way to protect the rights of free blacks whom slaveowners might deliber- ately or mistakenly kidnap. Of course, the rights of fugitive slaves themselves also came into play, as seen initially in the attempts of some of the Northern states to protect fugitives from abuse by vio- lent slavecatchers and, eventually, through their efforts to emanci- pate the escapees. Nonetheless, early in the nation's history the crafting of fugitive slave laws attended primarily to the property rights of slaveowners and the liberty of free blacks.10
States Rights will come into play as the rights of African Americans and slave owners were valued differently by Northern and Southern States. In the South, African Americans were assumed to be slaves. In the North, they were assumed to be free and the North believed in due process for African Americans resulting in judicial procedures that slave owners had to navigate, often at great expense. In the South, a slave owners word was enough. Later in the 1850 Fugitive Slave Act, all a slave owner had to have was a notarized signed affidavit which superseded any State procedures.

While they all had to balance the rights of slaves and their owners, the Northern and Southern states weighed them in differ- ent ways. In the South, "the resolution of this tension was weighted in favor of slaveholders by means of a presumption that would serve as a guide to a court in any hearing involving the sta- tus of a black. The presumption was that all blacks were slaves."" The presumption in the Northern states, by contrast, was radically different. The Northern states enacted procedural restrictions on the recapture of slaves, restrictions embodying a "clear-cut and all- important presumption of freedom" in an attempt to "affirm through law the presumption that all men are free until proven otherwise by orderly procedures."'12


This conflict will generate all sorts of political agitation between North and South. The conflict began as early debates over the Fugitive Slave Act of 1793 and as the North retreated from slavery, due to its domestic self-criticism and growth of a "wide-ranging humanism". In sort as the North became more free, the conflicts with the Slave South increased. Southern Slave Owners complained about the expense of going through Northern Courts to recover their constitutionally protected property.
The practical consequences (or, at the very least, the perceived consequences) of the different presumptions of the Northern and Southern states provoked considerable political agitation. Controversy erupted as early as the second decade of the nineteenth century, when Congress debated various proposed changes to the Fugitive Slave Act of 1793. With the end of the War of 1812, the country's political intellect diverted its attention from foreign af- fairs to domestic self-criticism. In the North, this self-criticism led to the growth of a "wide-ranging humanism" which, together with Jesse Torrey's 1817 tract detailing the slave trade's capture of free American blacks, heightened Northern concern over kidnapping. The Southern states, meanwhile, complained that Northern laws and courts inadequately respected the property rights of slaveowners:
veowners:

According to proslavery people northern courts often favored
claims to freedom, and in some areas antislavery people con-
tinuously flouted the law by assisting runaways, and without
penalty. . . . As for the legal processes of the free states,
Judge Spencer Roane of Virginia forcefully stated the proslav-
ery view in December, 1821, in Lewis v. Fullerton: the right to
reclaim fugitive slaves would be "nearly a nullity" if the
courts of the free states could confer liberty by the simple ex-
pedient of a habeas corpus. 13
10 Morris, Free Men All at 29 (cited
11 Id. at 2.
12 Id. at 5-6, ix. For a discussion of the
the Northern states, see id. at 6-12.
1 Id. at 29-35.
 
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jgoodguy

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Neither side had the political power to force its solution on the nation.  Debates over the Fugitive Slave Act of 1793 ended without a resolution in 1822.  The frustrated Northern States passed state legislation which made it more difficult for slave chasers to recapture actual fugitives.   After Maryland objected to Pensylvania's 1820 act, the 1826 was passed and it resulted in Prigg.
Nevertheless, as Morris points out, "neither side had sufficient political power to alter the existing arrangement,"' 4 and so the de- bates over amending the Fugitive Slave Act ended inconclusively in 1822. The Northern states, unhappy with the summary proce- dures specified by the 1793 Act and having lost hope for a federal remedy to the kidnapping problem, began to pass state legislation. Pennsylvania's experience during this time reveals the symptoms of these concerns. Pennsylvania passed an act in 1820 that im- posed severe penalties upon those who by force or fraud kidnapped free blacks, as well as limited the reach of the federal Fugitive Slave Act by denying certain lower state officials jurisdiction to en- force the federal Act. The 1820 Act required those few state offi- cials who did retain jurisdiction to maintain a record, including a description of the alleged slave, of all proceedings pursuant to the federal Act. By proscribing the participation of state officials in federal fugitive slave proceedings, Pennsylvania made it substan- tially more difficult for slavechasers to recapture fugitives. In fact, there were so few qualified Pennsylvania and federal officials avail- able to hear the claims of Southern slaveholders after the Act of 1820 that the state of Maryland actively lobbied to change the law. Pennsylvania responded to these concerns in 1826 with the act that gave rise to Prigg.15
The act of 1826 was a compromise.  The act created a burden for Southern slaveholders by more procedures, but because there were more State officials more numerous than federal and some help was better than no help.
The Act of 1826 was a compromise, one that established a sep- arate, state procedure for the rendition of fugitive slaves and em- powered lower state officials to enforce it. Although the new proce-dure itself was less favorable to Southern slaveholders than was the federal procedure, it was nonetheless more useful to the slavechasers because state officials were more numerous than were federal officials. In exchange for giving Southern slaveholders this new procedure, Northern antislavery forces obtained the elimina- tion of the slavechasers' historical right to simply retake, when possible without violence, those blacks whose status as fugitives was undisputed. After 1826, any taking of any alleged fugitive in Pennsylvania could occur legally only if done with judicial approval.16
Like all compromises, this was debated, but both the Pennsylvania Abolition Society and the Maryland commissioners were relatively satisfied by the Act. 

The precise impact and intent of the 1826 Act are unclear. One historian has argued that the Act was intended to and did make it virtually impossible for Southerners to recover fugitive slaves in Pennsylvania.17 An earlier historian points out, however, that the Act's concessions to slaveholders were significant.18 Per- haps the most persuasive evidence of the Act's mixed pro- and an-tislavery character is that both the Pennsylvania Abolition Society and the Maryland commissioners who lobbied the Pennsylvania legislature were relatively satisfied with the Act.'9
13 Id. at 29-35.
14 Id. at 41.
15 Id. at 45-46.

16 Id. at 46-53.
 

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The compromises failed one by one until the Civil War came.   Prigg did not solve the problem, nor did Dred Scott.  The harsher 1850 compromise Fugitive Slave Law did not solve the problem.  The problem is that the issue was more in the imagination of Southerners than in reality.  Fugitive slaves were less than 1000 a year, often much less.  The Fugitive Slave Act of 1850 returned less than 400 slaves.  Imagination can lead to war, however. 

In any event, the peace earned by the compromise of 1826, whatever its character, began to erode within the next decade. Intensified by the debate over whether new states and territories should be slave or free, the slavery controversy became increasingly heated and its parties increasingly polarized. Proponents of immediate abolition emerged as a visible and sometimes potent political force in the North. Because Northerners were growing less conciliatory or because the rhetoric of abolition and the politics of antislavery generated an understandable distrust and suspicion, the South became dissatisfied with the fugitive slave laws of the Northern states. By 1840, tensions overstate treatment of fugitive slaves were sufficiently great that Maryland sought, and Pennsylvania provided, pro forma proceedings in the Prigg case so as to facilitate a quick Supreme Court decision spelling out the limits of state power to legislate on the matter of fugitive slaves. The matter, of course, did not end there. By 1850, the Southern states, taking advantage of the fear of some Northern moderates that the Union was near dissolution, were able to obtain a new and harshly stringent federal slave law to address the inadequacies they perceived in the statutes of the Northern states. And by 1860, when South Carolina did secede, that state cited the Northern state laws prohibiting kidnapping and regulating the recapture of fugitive slaves as one of the factors contributing to its decision to depart from the Union.20
 

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From
Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism
Christopher L.M. Eisgruber
P276-7


C. Justice Story's Opinion in Prigg

The important points to remember is that there were 2 conflicting objectives, to capture slaves and to protect the rights of free blacks. The nation had been in conflict over this since the Articles of Confederations.

In order to appreciate the issues raised by Prigg, it is essential to understand the national importance of the fugitive slave problem in 1842, when Prigg was decided. Throughout the nation's history, the efforts of Southern slaveholders to recapture escaped slaves generated two related political problems. Initially, the state and federal governments had to decide how to secure the rights apparently guaranteed to slaveowners by the fugitive slave clause: what processes, if any, were appropriate to regulate the recapture of slaves? At the same time, the governments had to find a way to protect the rights of free blacks whom slaveowners might deliberately or mistakenly kidnap. Of course, the rights of fugitive slaves themselves also came into play, as seen initially in the attempts of some of the Northern states to protect fugitives from abuse by violent slavecatchers and, eventually, through their efforts to emancipate the escapees. Nonetheless, early in the nation's history the crafting of fugitive slave laws attended primarily to the property rights of slaveowners and the liberty of free blacks.10
The problem with solutions to a simple problem was that the North viewed blacks as freemen, while the South viewed all blacks as slaves.

While they all had to balance the rights of slaves and their owners, the Northern and Southern states weighed them in different ways. In the South, "the resolution of this tension was weighted in favor of slaveholders by means of a presumption that would serve as a guide to a court in any hearing involving the status of a black. The presumption was that all blacks were slaves." The presumption in the Northern states, by contrast, was radically different. The Northern states enacted procedural restrictions on the recapture of slaves, restrictions embodying a "clear-cut and all-important presumption of freedom" in an attempt to "affirm through law the presumption that all men are free until proven otherwise by orderly procedures."' 2
 
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