Joseph Story: “Privileges of Citizens—Fugitives—Slaves”

Explanation and Analysis of the Document

By the time he wrote his 1842 Swift v. Tyson opinion, Story had largely become an ideological outlier on the Supreme Court. Certainly, he had met with little success in seeking to convince his previous colleagues about the federal courts' recourse to the common law, but in other respects, Story shared broad areas of agreement with the justices who served with him under Chief Justice Marshall. The Marshall Court, which lasted from 1801 to 1835, pursued a nationalist constitutional agenda that in general sought to restrain state legislatures and give federal power a wide range of latitude. In the late 1820s and 1830s this approach fell out of favor with the ascension of Andrew Jackson to the presidency. Jackson and his supporters believed in a sharply limited role for federal power and wanted to give the states a large degree of discretion. Story believed that Jackson's appointees to the Supreme Court, best exemplified by Chief Justice Roger B. Taney, would undermine the achievements of the Marshall Court and perhaps severely damage the Republic. In 1837 Story, who did not normally write separate opinions, wrote a series of dissenting opinions defending his nationalist positions. He remained on the losing end of constitutional questions until his death in 1845, but he had long before shifted his front for the ideological conflict over constitutional interpretation to new ground.

In the 1830s and 1840s Story, in addition to serving as the senior associate justice on the Supreme Court, held the position of Dane Professor of Law at Harvard University, and he worked diligently to build the law school. Story published many of his lectures in a flood of legal treatises, including Commentaries on the Law of Bailments (1832), Commentaries on the Conflict of Laws (1834), Commentaries on Equity Jurisprudence (1836), Commentaries on Equity Pleadings (1838), Commentaries on the Law of Agency (1839), Commentaries on the Law of Partnership (1841), Commentaries on the Law of Bills of Exchange (1843), and Commentaries on the Law of Promissory Notes (1845). Much of this work focused on bringing a disciplined—Story would have said “scientific”—approach to legal study that took the jumble of common law doctrines and organized them into a coherent whole. But Story also used these treatises to educate young lawyers in what he considered to be the proper legal foundation for a republic and to challenge current political trends. His Commentaries on the Constitution of the United States (1833) provides a good example of these aims. Story wrote this work at the time of the nullification crisis, when South Carolina's opposition to a federal tariff led to the state's refusal to collect the tax and to threats of secession. Extreme states' rights theories, especially those of John C. Calhoun, underpinned these arguments, and Story wrote his constitutional commentaries to present a nationalist interpretation. As he did so, however, Story also worked to further his goal of placing federal jurisprudence on a common law foundation.

“Privileges of Citizens—Fugitives—Slaves,” a chapter discussing the privileges and immunities clause, the extradition clause, and the fugitive slave clause, underscores Story's efforts to achieve his desired ends. Each of these clauses appears in Article IV of the Constitution. Commentators usually associate this part of the document with issues of federalism, but Story portrays each of these provisions in a nationalist light. According to Story, the privileges and immunities clause, which reads that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,” was given this form in the Constitution to clear up some ambiguity from the Articles of Confederation. The articles contained a similar provision, but the text at various points used such terms as “free inhabitants,” “free citizens,” and “people” to refer to the beneficiaries of the privileges. Such imprecision led to problems. Story, for example, found one construction unavoidable: “It seems … that those, who come under the denomination of free inhabitants of a state, although not citizens of such state, are entitled, in every other state, to all the privileges of free citizens of the latter; that is to greater privileges, than they may be entitled to in their own state.” This construction, he argues, requires a state to treat people visiting from other states as citizens even if the state would not recognize such persons as citizens if they resided within its jurisdiction.

The Constitution remedied this problem by streamlining the language and consistently using the word “citizen.” The new language ensured not only that states would not treat other states' citizens as aliens but also that citizens enjoyed, as Story notes, “if one may so say, a general citizenship” that entitled them in any state to “all the privileges and immunities, which the citizens of the same state would be entitled to under like circumstances.” Such a reading of the clause was anathema to states' rights theorists like Calhoun, who denied that a general American citizenship even existed. Story's discussion of general citizenship segues nicely into his discussion of the extradition clause. Returning alleged criminals from one country to another has been a basic feature of international goodwill. Since this has been true among nations generally, the case for extradition would be even stronger within a Union like that formed by the Constitution. Extradition, Story declares, “is a power most salutary in its general operation, by discouraging crimes, and cutting off the chances of escape from punishment.” Moreover, provision for interstate extradition “will promote harmony and good feelings among the states” and “will increase the general sense of the blessings of the national government.”

Story moves on to his discussion of the Constitution's fugitive slave clause, which gave masters the right to enter northern states and reclaim alleged fugitives from slavery. Like many New Englanders, Story held misgivings about slavery. He opposed the expansion of slavery and the admission of Texas as a slave state and issued opinions critical of the international slave trade, most notably in the 1841 Amistad decision. Even so, in this chapter Story supports the right to reclaim fugitive slaves from the standpoint of national harmony. The clause, he states, “was introduced … solely for the benefit of the slave-holding states,” who had expressed concerns that the Articles of Confederation contained no such provision. He then notes that the clause's inclusion came about through “many sacrifices of opinion and feeling … made by the Eastern and Middle states to the peculiar interests of the south.” Story sees no reason for complaint here but wishes to “repress the delusive and mischievous notion, that the south has not at all times had its full share of benefits from the Union.”

Story closes with a brief discussion of the legal proceedings contemplated by the extradition and fugitive slave clauses. Essentially, they provided for “summary ministerial proceedings, and not the ordinary course of judicial investigations, to ascertain, whether the complaint be well founded, or the claim of ownership be established beyond all legal controversy.” Cases of extradition required only that there be prima facie evidence that a person was probably guilty of a crime, and a similar process was appropriate for fugitives from slavery. Story's seemingly neutral reading of this provision in fact challenged the way in which a number of northern states interpreted the Fugitive Slave Act. These states insisted that alleged fugitives from slavery be given more protection than specified in federal statute, and they passed a series of personal liberty laws that provided a variety of due process protections.

Nearly ten years later Story officially incorporated this position into constitutional law with his opinion in Prigg v. Pennsylvania (1842). Prigg came about in response to state personal liberty laws that imposed various due process requirements on the catching of slaves within the slave states. Story, speaking for a divided Court, held those laws unconstitutional, and in so doing he furthered some of his lifelong goals. Prigg continued Story's effort to place the federal courts on a common law foundation by insisting that the fugitive slave clause simply recognized the right of reception, which permitted masters, husbands, and like authority figures to reclaim their charges from wherever they might be unlawfully detained. His ruling also took a nationalist position by stripping from the states all power relating to fugitive slaves. States could neither aid nor hinder the apprehension of fugitives; all of that responsibility rested with the federal government.