Prigg v. Pennsylvania

Explanation and Analysis of the Document

As noted, seven of the nine justices wrote opinions in this case. Eight of the nine justices believed that Prigg’s conviction should be overturned. The main point of disagreement was between Story and Taney, on whether state officials could be required to participate in the return of fugitive slaves. McLean’s dissent argued that the Pennsylvania law was constitutional and thus it was permissible to prosecute Prigg for kidnapping.

In his opinion Story reached six major conclusions: that the federal Fugitive Slave Act of 1793 was constitutional; that no state could pass any law that added requirements to the federal law or impeded the return of fugitive slaves; that people claiming fugitive slaves (masters or their agents) had a constitutionally protected common law right of recaption, or “self-help,” which allowed a claimant to seize any fugitive slave anywhere and bring that slave back to the South without complying with the provisions of the Fugitive Slave Act; that a captured fugitive slave was entitled to only a summary proceeding to determine whether he or she was indeed the person described in the papers provided by the claimant; that a judge was not to decide whether the person before him was a slave or free but only whether he or she was the person described in the papers; and that state officials should, but could not be required to, enforce the Fugitive Slave Act.

When combined, these conclusions created an overwhelming proslavery result. Story’s notion of self-help was the most important for slave owners and the most dangerous for free blacks. Story claimed that the fugitive slave clause created “a positive, unqualified right on the part of the owner of the slave which no state law or regulation can in any way qualify, regulate, control, or restrain.” In Story’s view, under the Constitution,

the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave whenever he can do it without any breach of the peace or any illegal violence. In this sense and to this extent, this clause of the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national.

Under this extraordinary conclusion any southerner could seize any black and remove that person to the South without any state interference, as long as no “breach of the peace” occurred.

One might presume that a “breach of the peace” would always occur when a black, especially a free one, was seized by a slave catcher or kidnapper, but this was hardly the case. In his dissent, Justice McLean pointed out the logical problems of limiting Story’s right of self-help to instances in which there was no breach of the peace:

But it is said, the master may seize his slave wherever he finds him, if by doing so he does not violate the public peace; that the relation of master and slave is not affected by the laws of the State to which the slave may have fled, and where he is found. If the master has a right to seize and remove the slave without claim, he can commit no breach of the peace by using all the force necessary to accomplish his object.

In other words, the logic of Story’s opinion was that no amount of violence against an alleged slave would be illegal. Slavery was based on force, and thus it would never be a breach of the peace for a master to take his slave by brutal force.

Violent seizures at night or in isolated areas could be accomplished without anyone’s observing a breach of the peace. This happened with Margaret Morgan and her children. One moment they were in a wagon on their way home after Justice Henderson had released them. The next moment, in the middle of the night on a rural road with no one to help them, they were overpowered by four men and taken to Maryland. Once a black was shackled, intimidated, and perhaps beaten into submission, travel from the North to the South could be accomplished without any obvious breach of the peace. If state officials could not stop whites from transporting a black in chains, then kidnapping of any black could always be accomplished. Under such a rule anyone, especially children, might be kidnapped and enslaved. Kidnappings of this sort had led to the enactment of Pennsylvania’s 1826 personal liberty law.

In his majority opinion, Justice Story ignored the fact that one or more of Morgan’s children was born free in Pennsylvania. Instead, he held that the fugitive slave clause gave masters an absolute right to claim their runaway slaves without any interference from state laws or state officials. Thus, Pennsylvania’s 1826 personal liberty law was unconstitutional. Story held that only Congress could regulate the return of fugitive slaves, as it had in the 1793 law. That law required a master to bring a slave before any magistrate or judge, federal or state, to obtain a certificate of removal to take the slave with him. Even though Story found this law to be constitutional—and all state laws supplementing it to be unconstitutional—he also held that a master did not have to follow the procedure set out in the 1793 law. Instead, Story asserted that under the Constitution itself masters had a right of “self-help.” Thus, if a master found it convenient to return a fugitive slave without going before a judge, he could do so, as long as it was accomplished without a “breach of the peace.” For free blacks and their white allies this seemed like an invitation for kidnapping.

Story left the states powerless to prevent this type of kidnapping. His opinion effectively made the law of the South the law of the nation. In the South, race was a presumption of slave status; by giving masters and slave hunters a common law right of “recaption,” Story nationalized this presumption. As a result, slave catchers could operate in the North without having to prove the seized person’s slave status. The consequences for the nearly one hundred and seventy-five thousand free blacks in the North could have been dire. In his dissenting opinion, Justice McLean protested the result, but his complaints fell on deaf ears.

Story also ruled that northern states should help enforce the federal law, but they could not be forced to do so. This was a logical outcome of his reading of the Constitution. It was also consistent with nineteenth-century notions of states’ rights: that the national government could not compel the states to act in a certain way. Story emphatically declared that the northern states should enforce the law, but from his perspective whatever they did would be a useful outcome. If the northern states enforced the law, it would prove to the South that it had nothing to fear from a stronger union and a more powerful national government. If, on the other hand, the northern states did not enforce the law, the national government would have to create an enforcement system, and this would have the dual value of strengthening the national government—a lifetime goal of Story’s—and emphatically tying the South to support a nationalization of law.

In his concurring opinion, Chief Justice Taney misstated Story’s position. He claimed that Story would not allow the states to capture fugitive slaves. As the very end of Story’s opinion shows, this is not true. Story wanted the states to help with the return of fugitive slaves. He just did not believe they could be forced to do so.