Salmon P. Chase, Nullifier

In his fine Fugitive Justice: Runaways, Rescuers, and Slavery on Trial, Steven Lubet describes Salmon Portland Chase's brush with nullification.

On Monday September 13, 1858, slave catchers seized a runaway slave by the name of John Price near Oberlin, Ohio and conducted him to the nearby town of Wellington, whence they planned to take a train to Columbus. Unbeknownst to them, Oberlin opponents of the Fugitive Slave Act of 1850 learned of the event and followed them. The slave catchers found themselves besieged in a Wellington hotel by a mixed-race crowd of 300 to 500 people demanding Price's release. In brief, members of the crowd stormed the hotel and transferred Price to a carriage. Price ultimately escaped to Canada.

On December 6, 1858, a federal grand jury in Cleveland indicted thirty-seven men for violation of the Fugitive Slave Act. Two of the defendants were tried and convicted in April and May 1859. A number of others were remanded to custody pending their trials.

In mid-May, however, the convicted defendants' attorneys filed a petition for habeas corpus with the Ohio Supreme Court, which scheduled argument for May 25, 1859.

Supporters of the defendants held a massive rally in Cleveland on May 24. By some estimates, as many as twelve thousand people attended. Although he had long been a leader in the anti-slavery movement, Governor Salmon P. Chase had not spoken out in connection with this or several previous incidents involving the Fugitive Slave Act and was not scheduled to attend. But perhaps because his earlier silences had been the subject of criticism he made an unexpected appearance.

Following other speakers who had vowed to resist the Fugitive Slave Act with force if necessary, Chase tried to walk a fine line between denouncing the law and advocating extra-legal measures. But in the end Chase "took a step toward the abyss":

If the process for the release of any prisoner should issue from Courts of the State [of Ohio], he was free to say that so long as Ohio was a Sovereign State, that process should be executed.

"'When the time came,' [Chase] said, 'and his duty was plain, he, as Governor of Ohio, would meet it as a man.'" In short, Chase had vowed to defy the federal government if necessary. "The Oberlin rescuers were still in jail and Governor Chase had all but promised to deploy the state militia on their behalf."

Luckily for Chase, the Ohio Supreme Court rescued him from his reckless commitment. By a 3 to 2 vote the Court denied the habeas petition. Although an abolitionist and a Republican, Chief Justice Joseph Rockwell Swan concluded that he was "bound by my official oath to sustain the supremacy of the constitution and the law:'THE PRISONER MUST BE REMANDED.'"

A Note on the No-Testimony Provision of the Fugitive Slave Act of 1850

Section 6 of the Fugitive Slave Act of 1850 specifically barred the alleged fugitive from testifying in his own defense: "In no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence."

In his wonderful (so far) Fugitive Justice: Runaways, Rescuers, and Slavery on Trial, lawprof Steven Lubet points out that this "provision was not quite as draconian as it now must seem" given the rules of evidence at the time. Nowadays, parties to suits are permitted to testify, with the trial judge giving the jury a instruction directing them to consider the party's interest in the case when evaluating that testimony.

In 1850, however, the general rule was that interested parties were barred from testifying altogether, on the theory that their testimony was inherently unreliable. The no-testimony provision of the Act thus "merely put an alleged slave (the subject of the proceeding, but not a formal party) on the same footing as the alleged master."

Virtually every aspect of the Fugitive Slave Act [of 1850] tilted against the alleged runaway, who was denied the right to a jury trial, to appeal, or to seek relief from another court. The law specifically provided that "in no trial or hearing under this act shall the testimony of such alleged fugitive be admitted in evidence." The latter provision was not quite as draconian as it now must seem. In 1850, plaintiffs and defendants in lawsuits, including criminal defendants, were not permitted to testify on their own behalf in any state or federal court, pursuant to the so-called interested party rule. Strictly speaking, then, the no-testimony provision of the Fugitive Slave Act merely put an alleged slave (the subject of the proceeding, but not a formal party) on the same footing as the alleged master (the plaintiff or claimant), neither being allowed to testify.

Two caveats are in order. First, as Prof. Lubet notes, the no-testimony provision of the Act nonetheless left the alleged fugitive at a terrible disadvantage:

But of course their true positions were far from equivalent. The claimants had resources to call upon other witnesses - agents, employees, neighbors - to testify to the identity and servile status of a prisoner, while the fugitives almost invariably had only themselves.

Second, Prof. Lubet may be incorrect that in 1850 parties were barred from testifying "in any state or federal court." Although it may have remained the general rule, it appears that at about this time some states were beginning to reconsider the old common-law rule and a few had already modified it. In A History of American Law, Prof. Lawrence M. Friedman cites both Connecticut and New York as having abandoned the rule by 1850:

A few of the more restrictive rules of evidence were, to be sure, relaxed. At one time, as we noted, nobody who was an interested party was allowed to testify at trial. England abolished this rule in 1843, Michigan in 1846, and other states followed over the next thirty years. The rule that disqualified the parties to a lawsuit was only a special case of the rule; it too was abolished. Connecticut did this in 1848; and the Field Code, in New York, in the same year, did the same. Other states gradually joined the trend, Illinois, for example, in 1867.

About the illustration, entitled Practical Illustration of the Fugitive Slave Law (published in Boston, 1851):

A satire on the antagonism between Northern abolitionists on the one hand, and Secretary of State Daniel Webster and other supporters of enforcement of the Fugitive Slave Act of 1850. Here abolitionist William Lloyd Garrison (left) holds a slave woman in one arm and points a pistol toward a burly slave catcher mounted on the back of Daniel Webster. The slave catcher, wielding a noose and manacles, is expensively dressed, and may represent the federal marshals or commissioners authorized by the act (and paid) to apprehend and return fugitive slaves to their owners. Behind Garrison a black man also aims a pistol toward the group on the right, while another seizes a cowering slaveholder by the hair and is about to whip him saying, "It's my turn now Old Slave Driver." Garrison: "Don't be alarmed Susanna, you're safe enough." Slave catcher: "Don't back out Webster, if you do we're ruind." Webster, holding "Constitution": "This, though Constitutional, is "extremely disagreeable." "Man holding volumes "Law & Gospel": "We will give these fellows a touch of South Carolina."Man with quill and ledger: "I goes in for Law & Order." A fallen slaveholder: "This is all "your" fault Webster." In the background is a Temple of Liberty flying two flags, one reading "A day, an hour, of virtuous Liberty, is worth an age of Servitude" and the other, "All men are born free & equal." The print may (as Weitenkampf suggests) be the work of New York artist Edward Williams Clay. The signature, the expressive animation of the figures, and especially the political viewpoint are, however, uncharacteristic of Clay. (Compare for instance that artist's "What's Sauce for the Goose," no. 1851-5.) It is more likely that the print was produced in Boston, a center of bitter opposition to the Fugitive Slave Act in 1850 and 1851.

The Fugitive Slave Act . . . of 1791?

Somehow I was under the impression that the Fugitive Slave Act of 1793 as passed was virtually identical to the bill as originally introduced. In Slavery and the Supreme Court, 1825-1861, Earl M. Maltz sets me straight.

The original version of a fugitive slave bill, Prof. Maltz explains, was in fact introduced two years earlier, and it differed in fundamental respects from the bill that was later passed.

The original fugitive slave bill, reported to the House of Representatives on November 15, 1791, was the work of a three-man committee composed of Reps. Theodore Sedgwick and Shearjashub Bourne – what a remarkable name! - of Massachusetts and Rep. Alexander White of Virginia.

Frustratingly, I can't find the text of the bill online. As Prof. Maltz describes it, however, the bill relied upon the executive branch (i.e., governor) of the state into which the alleged fugitive had fled. The claimant (master) presented to the governor of the “fugitive” state an application “supported by depositions of two persons who affirmed that the person identified was fact a fugitive slave.” The governor then issued an arrest warrant that directed appropriate officers to arrest the fugitive and deliver him to the applicant. “State officials who refused to enforce the arrest warrants would have been subject to stiff fines in federal court.”

The original bill died in the House in 1791 of unknown causes. “The Sedgwick bill was read twice on November 15 [1791] and scheduled for a third reading. However, for unknown reasons, the third reading never took place, and the bill died without a vote.”

The Fugitive Slave Act of 1818? Part 9

The Senate received the House bill to amend the Fugitive Slave Act of 1793 on Monday February 2, 1818. The Senate accepted a few minor amendments. The only amendment of note was what we would now call a “sunset provision” stipulating that the new act would automatically expire after four years. On Thursday March 12, 1818, the bill, as amended, passed the Senate by a vote of 17 to 13.

Proponents now had victory within their grasp. Both the House and the Senate had passed versions of the bill by comfortable margins. Now all that remained was to reconcile the two. If the House held firm, it might even convince the Senate to give way on the sunset provision.

It did not come to pass. On Monday March 16, 1818, the "House took up the amendments proposed by the Senate to the bill." The matter was tabled without recorded vote.

On Friday April 10, 1818, Rep. James Pindall of Virginia, the bill's chief sponsor in the House, moved “that the House do now proceed to consider the amendments proposed by the the Senate, to the bill.” This time, the vote was recorded. The motion “was determined in the negative” - i.e., it failed – by a vote 63 to 73. The bill was not taken up again that session.

The reasons for the bill's defeat remain unclear. There was no recorded debate in the House 0n either March 16 or April 10, and none of the secondary sources I have located explains the result. Thomas D. Morris, for example, states merely that “The House, however, on March 16, 1818 , ordered [the bill] tabled. It was not taken up during the remainder of this session of Congress. Morris does not mention or analyze the April 10 vote.

It would be tempting to assume that a bloc of northerners in the House had second thoughts about the bill after having voted in favor of it on Friday January 30, 1818. However, an examination of the two recorded votes on January 30 and April 10 does not appear to confirm this hypothesis. Indeed, a comparison of the votes does not reveal any distinctly discernible pattern, at least as far as I can tell.

In the vote on January 30, 1818, the House passed the bill by a vote of 84 to 69 (total 153). The vote on April 10, 1818 against the bill was 63 to 73 (136 total). The total number of votes decreased by 17 (suggesting a number of legislators were absent or intentionally chose to sit the vote out), but more importantly the relative totals changed dramatically. The number of votes against the bill remained fairly steady (73 vs. 69), but the number of votes in favor of the bill declined dramatically (from 84 to 63, a loss of 21 votes).

Who, I wondered, were the Representatives who deserted the bill, and where did they come from? To answer that question, I went through the two House votes and compiled a list of those Representatives who voted in favor of the bill on January 30, but not on April 10. Where the Representative affirmatively voted against the bill the second time, I have added a “no.” Where he did not vote at all the second time, there is a blank. I then divided the voters into northern and southern contingents to see whether there was a regional pattern.

Voted For the Bill the First Time, But Not the Second

North (12/10)

John Holmes (MA) – No
John Wilson (MA) – No
John R. Drake (NY) - No
Josiah Hasbrouck (NY) - No
John Herkimer (NY) - No
Thomas H. Hubbard (NY) - No
David A. Ogden (NY)
John Palmer (NY) - No
Henry R. Storrs (NY)
Caleb Tompkins (NY) – No
John W. Campbell (OH) - No
Thomas Patterson (PA) – No

South (19/1)

Willard Hall (DE) - No
Louis McLane (DE)
Thomas W. Cobb (GA)
Joel Crawford (GA)
Richard C. Anderson, Jr. (KY)
Anthony New (KY)
Tunstal Quarles (KY)
George Robertson (KY)
Thomas Bayley (MD)
Philip Stuart (MD)
Joseph H. Bryan (NC)
Weldon N. Edwards (NC)
Joseph Bellinger (SC)
James Ervin (SC)
Wilson Nesbitt (SC)
George W. L. Marr (TN)
William A. Burwell (VA)
William J. Lewis (VA)
Thomas Newton, Jr. (VA)

As you will see, there were more southern deserters of the bill than northern. Twelve northerners and nineteen southerners who voted for the bill the first time did not do so after the bill returned from the Senate.

On the other hand, far more northerners than southerners switched their votes. Of the 12 northerners, 10 affirmatively voted against the bill the second time. Only two did not vote on April 10. Of the nineteen southerners, in contrast, only one (Willard Hall of Delaware) affirmatively changed his vote. The other eighteen did not vote one way or the other the second time around.

For the heck of it, I also assembled a list of Representatives who voted in favor of the bill the second time, but not the first. Where the legislator affirmatively voted against the bill the first time, I placed a “no”. There is no annotation if he did not vote one way or the other the first time:

Voted for the Bill the Second Time, But Not the First

North (3/2)

John F. Parrott (NH) – No
John Linn (NJ)
Alexander Ogle (PA) - No

South (7/1)

Thomas Culbreth (MD) - No
Stephen D. Miller (SC)
Lemuel Sawyer (SC)
Eldred Simpkins (SC)
William G. Blount (TN)
Thomas M. Nelson (VA)
Alexander Smyth (VA)

I'm not sure what I was expecting to find, but again I see no clear pattern. More southerners came forward to vote for the bill than northerners, but the sample seems to be too small to demonstrate a trend, and the southerners who did so are substantially fewer than the 19 southern representatives who apparently abandoned the bill in April.

In an earlier post, I suggested this attempt to amend the Fugitive Slave Act of 1793 would be a great subject for a paper or article. Get to it - and solve the mystery as to why the bill failed1

The Fugitive Slave Act of 1818? Part 8

I'm interrupting my review of the efforts in 1817-1818 to amend the Fugitive Slave Act of 1793 to point out that there is apparently next to nothing written about the episode. It strikes me that it would be a great topic for a paper or article. So how 'bout it, you historians and aspiring historians? Sharpen those quills and fire up those word processors!

Other than the brief mention in Earl M. Maltz's Dred Scott and the Politics of Slavery, which got me started on this series of posts, I've found all of three references to the proposed amendment.

In The Slaveholding Republic: An Account of the United States Government's Relationship to Slavery, Don E. Fehrenbacher devotes a brief paragraph to the episode (p. 214).

Fehrenbacher's accompanying footnote cites a single source (other than the Annals of Congress). That book contains a discussion that is all of five or six pages long. For reasons I don't understand, the book is available online: Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North 1780-1861, pp. 35-41.

Finally, I found a very short discussion of some of the arguments made in the debates in David P. Currie, The Constitution in Congress: The Jeffersonians 1801-1829 (p. 306, n. 147).

In the next post, I'll look at the Senate's passage of a slightly amended bill, and the bill's ultimate failure.

The Fugitive Slave Act of 1818? Part 7

The House of Representatives resumed debate on the Bill to amend to the Fugitive Slave Act of 1793 the next day, Friday January 30, 1818.

The first reported speaker that day, Benjamin Adams of Massachusetts (no relation to John or John Quincy as far as I know) led off with objections. The bill, he maintained, endangered the rights of both free blacks and the north.

Arthur Livermore of New Hampshire likewise cited the risk to free blacks as the basis for his objection:

[T]he bill contained no sufficient guard to the safety of those colored people who resided in the States where slavery was known only by name. The bill provided that alleged fugitives were not be identified and proven until they reached the State in which the person seizing them resided; and this would expose the free men of other parts to the hazard of being dragged from one extreme of the country to the other.

In some ways, the more interesting speeches were those of northerners explaining why they were prepared to vote in favor of the bill. Jonathan Mason of Boston cited the fact that the Constitution did, after all, acknowledge the right of slaveowners to recover “this kind of property.” He would not assume abuse of the system by southern judges, and in fact southern courts were more likely to deliver unbiased rulings than northern ones. He also admitted that he did not want his state to become “infested” with “the runaways from the South”:

The Constitution, formed in the spirit of compromise, had guarantied this kind of property to the Southern States, and as it appeared from the insufficiency of the existing laws, that the proposed bill was necessary to secure this right, he was willing to adopt the measure, as he was always willing to approve any measure to effect what the Constitution sanctioned.

The possible abuse of anything was no argument against it, if otherwise expedient, and on this ground he was not prepared to reject the feature of the bill so much opposed. The judicial tribunals of the South, he had no doubt, would decide on the cases as correctly as those of the North, and on this subject perhaps more so, as, he believed, so strong was the feeling on this subject in the latter section of the country [the North], and so great a leaning was there against slavery, that the juries of Massachusetts would, in ninety-nine cases in a hundred, decide in favor of the fugitive.

His feeling on this bill were also somewhat interested; as he wished not, by denying just facilities for the recovery of fugitive slaves, to have the town where he lived (Boston) infested, as it would be, without an effectual restraint, with a great portion of the runaways from the South.

John Holmes, from the Maine District of Massachusetts (the same John Holmes to whom Thomas Jefferson addressed his fire bell in the night letter), seconded his Bay State colleague. The bill “was necessary to secure the Constitutional rights” of the south, and “[h]e did not believe the freedom of a single man in the North would be endangered” by it.

Rep. James Pindall of Virginia, had, several days earlier, defended the bill against charges that it unconstitutionally imposed a duty to act upon state officers. The Fugitive Slave Clause, he argued, imposed a duty on states to "deliver up" fugitive slaves, and Congress was empowered to enforce that obligation:

It being thus shown, in regard to this clause of the Constitution, that a right and corresponding obligation are established between different States, which, by ordinary interpretation, depend for their development and exercise upon the proper officer of each State; and it being admitted on all sides that Congress has the power to regulate the due exercise of that right, and enforce the performance of that obligation, it follows that Congress can make a law to regulate the conduct of these State officers in the performance of their duty.

Now yet another Massachusetts congressman, Ezekiel Whitman, also from the Maine District, disputed Rep. Pindall's constitutional claim:

He objected to that provision, which makes it a penal in a state officer to refuse his assistance, in executing the act. This feature, if retained, would prevent his voting for the bill, as its penalties would require the State officers either to resign, or perform an act which might be repugnant to their feelings, and render their official stations frequently disagreeable. Furthermore, he did not believe Congress had the right to compel the State officers to perform this duty – they could only authorize it . . ..

Such arguments were, however, swept aside. Before the end of the day, the House passed the bill by a substantial margin, 84 to 69.

The Fugitive Slave Act of 1818? Part 6

On Thursday January 29, 1818, the House of Representatives took up the Bill of the Committee headed by Rep. James Pindall of Virginia to amend the Fugitive Slave Act of 1793.

As you might have guessed, the focus of opposition was the Home District certificate feature, which, northerners feared, gave southern judges the power, in effect, to force northern authorities to arrest and deliver alleged slaves without an independent determination as to whether they were, in fact, slaves. Charles Rich of Vermont, for example, urged that the bill be amended "as to guard more effectually the rights of free persons of color."

William P. Maclay of Pennsylvania (nephew of this William Maclay) likewise expressed the objection that the bill lacked "a provision to prevent the apprehension of free persons of color, under pretense of their being slaves."

John Sergeant, also of Pennsylvania, attempted to gut the bill, "having in view to materially change the nature of the bill by making judges of the State in which the apprentices, slaves, &c., are seized, the tribunal to decide the fact of slavery, instead of the judges of the States whence the fugitives have escaped." His motion was voted down "by a large majority."

After extended and apparently repetitive debate (the reporter for the Annals of Congress observed that "[t]he debate, though not very interesting, was zealously persisted in to a late hour"), the House voted to engross the bill and have the third reading the next day. The vote in favor was 86 to 55.

The Fugitive Slave Act of 1818? Part 5

Before turning back to the legislative history of the December 1817 Bill To amend an act, entitled "An act respecting fugitives from justice, and persons escaping from the service of their masters", to see what became of it, one more feature of the Bill itself deserves mention.

As I have described, the Home District certification process was central to the Bill. The drafters apparently expected that some northerners would complain bitterly that the Bill forced them to turn over fugitives based on certificates issued by slave state judges.

Presumably for this reason, the drafters felt the need to include a provision that would allow them to reassure northerners of the absolute integrity of the certificate-issuing process. They did so by fashioning a draconian penalty for fraudulently procuring or forging Home District certificates: death. Section 7 provided:

[I]f any person shall falsely make, alter, forge or counterfeit, or cause or procure to be falsely made, altered, forged or counterfeited, or willing aid or assist in falsely making, altering, forging or counterfeiting any certificate under or by colour of the first section of this act, or procure any other person to be arrested or imprisoned by force, on pretence of any such forged or counterfeited certificate, knowing the same to be forged or counterfeited; he or she, on conviction thereof shall suffer death.

About the illustration:

A crudely drawn satire bitterly attacking Democratic presidential candidate Franklin Pierce and appealing to the "Freemen of America." The print, possibly executed by a free black, criticizes the Democrats' platform, as established by the Baltimore Convention, which in the interest of preserving the Union endorsed the Compromise of 1850. More specifically the artist condemns Pierce's pledge to enforce the Fugitive Slave Act, included in the compromise as a submission to southern slaveholding interests. In the center Pierce prostrates himself before a "Slave holder & Peace Maker," a bearded man in wide-brimmed hat and striped trousers holding a cat-o-nine-tails and manacles. The upper half of Pierce is over the Mason Dixon line, his face in the dirt on the "Baltimore Platform." The slaveholder says: "Save the Union, / And with the "meanest" Yankee grease / Smear the hinges of your knees / And in "silence" pray for peace." Pierce, dubbed "one of the Southern "dirt" eaters "Saving" the Union," replies, "I accept this cheerfully." The Democratic platform is labeled "Southern pine" and is inscribed with reference to the compromise, "Fugitive Slave Law and nigger catching, and resist agitation on the Slavery question &c." On it lie a skull and crossbones, manacles, and a serpent. At far left is "the Devil come up to attend his revival," who commends, "Well done my faithful servants!" On the right is the infamous Hungarian general Julius von Haynau, who carries a whip and wears a "Barclay's Brewery" pitcher on his head. (Haynau was assaulted by Barclay employees while in England.) The Hungarian extends his hand toward the slaveholder, saying, "I feel quite at home in this company give me your hand my good fellow." Further to the right are Lewis Cass and Stephen A. Douglas, disappointed aspirants for the 1852 Democratic nomination. Cass says, "We are down Douglass, "Pierce" has bid lower than either of us." Douglas: "There is nothing impossible for a New Hampshire "Hunker" [i.e., conservative] Democrat to do in that line." On the ground nearby are the words, "the "slave&1ocratic miscalled the Democratic party, how they obey the "crack" of the slaveholder's whip!"

The Fugitive Slave Act of 1818? Part 4

Although I have catalogued a number of incentives built in to the December 1817 Bill To amend an act, entitled "An act respecting fugitives from justice, and persons escaping from the service of their masters" to encourage masters to obtain Home District certificates, I have saved the best for last: what I term the "executive authority option".

Section 6 of the Bill proposed an entirely new executive-to-executive system available for use by masters who procured Home District certificates. In brief, a master who had obtained a Home District certificate could ask the executive of his state (say, the Governor of Maryland) to send a demand to his Fugitive District counterpart (say, the Governor of Pennsylvania) that the latter turn over the fugitive named in the certificate. In that event, the latter was obligated to locate and arrest the fugitive, transport him to that state's border, and there deliver the fugitive to the master or the master's agent:

[W]henever the executive authority of any state in this union, or of either of the territories thereof, shall for or in behalf of any citizen or inhabitant of such state or territory, demand any fugitive slave of the executive authority of any state or territory, to which such slave shall have fled, and shall moreover produce a [Home District] certificate issued pursuant to the first section of this act, it shall be the duty of the executive authority of the state or territory to which such fugitive shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause such fugitive to be delivered to the said agent, on the confine or boundary of the state or territory in which said arrest shall be, and in the most usual and direct route to the place from whence the said fugitive shall have escaped.

The agent was required to pay "the reasonable expense of such arrest, detention and delivery of such fugitive," but the advantages to the slaveholder were obviously enormous. Rather than hiring a slave-catcher to travel into Pennsylvania, he could have the State of Pennsylvania do the work and deliver the fugitive to him at the Pennsylvania-Maryland border.

About the illustration:

The opposition of Northern abolitionists, churchmen, and political figures to enforcement of the Fugitive Slave Act of 1850 is criticized in this rare pro-Southern cartoon. In two panels artist Edward Williams Clay illustrates the abolitionist's invocation of a "higher law" against the claim of a slave owner, and the application of the same principle against the Northerner in a case of stolen textiles. In the left panel a slaveholder "Mr. Palmetto" and a federal marshal confront an abolitionist "Mr. Pumpkindoodle" and a garishly dressed, runaway slave "Pompey" in a warehouse or shop interior. On the counter is a copy of the newspaper the "Emancipator." Palmetto: ". . . I've come here to take that fugitive slave who belongs to me, according to the provisions of the U. S. law! Officer do your duty!" Pumpkindoodle (handing a pistol to the slave): "What! seize my African brother! never! I dont recognize any U.S. law! I have a higher law, a law of my own. here Pompey take this pistol and resist to the death! if he attempts to take you!" Pompey (trembling): "Ye yes sa! I'll try, cause brudders [antislavery senator from New York William H.] Seward and [abolitionist William Lloyd] Garrison says its all right; and so does Parson Squash! But I'm mighty feared." Federal marshal: "Whew! I think I'd better make myself scarce!" In the panel on the right, the same abolitionist approaches the seated slaveholder in the latter's shop. A sturdy slave "Cesar" and a grinning attendant stand by. On the counter are several bolts of fabric, labeled "Bay State Shawls," "Cotton Shirting," "Domestic Prints," "Amoskeag Ticks," "Lowels Negro Cloth" and "Hamilton Long Cloth." A copy of the "Charleston Mercury" lies open on Palmetto's lap. Pumpkindoodle: "Look here Mr. Palmetto them 'ere goods is mine! They've been stole from me, and if you dont give 'em up, I'll take the law of the land on you!" Palmetto: ". . . They are fugitives from you, are they? As to the law of the land, I have a higher law of my own, and possession is nine points in the law. I cant cotton to you. Kick out the abolitionist Cesar." Cesar: "Of course Massa. De dam Bobolitionist is the wus enemy we poor niggers have got."

The Fugitive Slave Act of 1818? Part 3

In my last post concerning a Bill To amend an act, entitled "An act respecting fugitives from justice, and persons escaping from the service of their masters", introduced on December 29, 1817 by a three-man committee headed by James Pindall, I described the Home District (my term) certificate process authorized by the proposed legislation and some of the incentives contained in the bill that encouraged masters to use the process.

There were other incentives as well. In particular, a master who obtained a Home District certificate acquired immunity from claims by or on behalf of the seized fugitive, both in the state in which the fugitive was seized and in any state through which the returning master passed on his way back home. Section 4 provided:

[N]o person claiming such fugitive from labor, nor the agent of any such person who shall have received a [Home District] certificate pursuant to the first section of this act, shall be in anywise imprisoned, arrested, or detained, in person, or distrained or attached by his goods, chattles, or effects, by reason of any action, suit, or process, to be had, moved, or prosecuted by or in behalf of the fugitive named or mentioned in the said certificate, in the state or territory where the said fugitive shall be apprehended, or in any other state or territory through which he shall or may necessarily pass, in returning to the state or territory from whence the said fugitive shall have absconded.

There was only one exception: "homicide or mayhem."

[N]or shall such claimant or his agent, be imprisoned, arrested, or detained by any warrant or prosecution brought or commenced by reason or pretence of assaulting, beating, imprisoning, or otherwise maltreating such fugitive, except the same be had or moved on a charge of homicide or mayhem.

About the illustration:

An impassioned condemnation of the Fugitive Slave Act passed by Congress in September 1850, which increased federal and free-state responsibility for the recovery of fugitive slaves. The law provided for the appointment of federal commissioners empowered to issue warrants for the arrest of alleged fugitive slaves and to enlist the aid of posses and even civilian bystanders in their apprehension. The print shows a group of four black men--possibly freedmen--ambushed by a posse of six armed whites in a cornfield. One of the white men fires on them, while two of his companions reload their muskets. Two of the blacks have evidently been hit; one has fallen to the ground while the second staggers, clutching the back of his bleeding head. The two others react with horror. Below the picture are two texts, one from Deuteronomy: "Thou shalt not deliver unto the master his servant which has escaped from his master unto thee. He shall dwell with thee. Even among you in that place which he shall choose in one of thy gates where it liketh him best. Thou shalt not oppress him." The second text is from the Declaration of Independence: "We hold that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." The print is unusually well drawn and composed for a political print of the period. The handling of both the lithographic technique and the figures betray particular skill.

The Fugitive Slave Act of 1818? Part 2

The Fugitive Slave Act of 1793 was a pretty bare-bones affair. The central provision – one brief section – outlined a scheme by which masters or their agents could themselves apprehend escaped “servants” and obtain a certificate from a state or federal judge in the locality to which the slave had fled authorizing the claimant to return the fugitive to his original state. If the master or agent could not apprehend the slave without causing a “breach of the peace,” the claimant could apply to a local magistrate for a warrant requiring local law enforcement to arrest the alleged fugitive.

Although the fugitive slave bill that Rep. James Pindall introduced on December 29, 1817 contained several innovations, the linchpin of the proposed legislation – entitled A Bill To amend an act, entitled “An act respecting fugitives from justice, and persons escaping from the service of their masters” – was a new certificate, issued by a judge in the locality from which the slave escaped. (For convenience, I will refer to this locality as the “Home District”; the locality to which the alleged fugitive has escaped I will refer to as the “Fugitive District.”)

In a nutshell, Section 1 of the Bill authorized a master of an escaped slave, or the master’s agent, to apply to a judge in his Home District for a certificate attesting “that the person so escaping, is the slave of such claimant, or doth owe to such claimant, service or labor, whereof the law compels a specific performance.”

[W]hen a person held to labor or service in any of the United States, or in either of the territories thereof, by the laws of any such state or territory, shall escape into any other state or territory, the person to whom such labor or service may be due, or his or her agent, may apply to any judge of the district or circuit court of the district from whence such fugitive shall have escaped, or to any two judges or justices of the peace of the state or territory from whence such fugitive shall have escaped; and upon proof to the satisfaction of such judge or magistrates, that such fugitive is a slave, or doth, under the laws of the state or territory, from whence he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge of the district or circuit court, or such judges or magistrates, to award a certificate that the person so escaping, is the slave of such claimant, or doth owe to such claimant, service or labor, whereof the law compels specific performance. And the official authority of such judges or magistrates may be verified by seal of such state or territory, or of any court of record therein, or in such other manner as such acts are usually authenticated.

The language of Section 1 indicates that this procedure was not mandatory; that is, the master was not required to obtain a certificate from his Home District. However, as we shall see, the Bill created powerful incentives for the master to do so.

First and foremost, a master (or his agent) armed with such a Home District certificate was entitled to present it to a judge in the Fugitive District. Under the 1793 Act, the Fugitive District judge was required to determine whether "the person so seized or arrested, doth, under the laws of the State or Territory from which he or she fled, owe service or labor to the person claiming him or her." Given the difficulties of proof, this in effect gave the judge broad discretion to deny applications.

The 1817 Bill attempted to limit this discretion where the Fugitive District judge was presented with a Home District certificate as much as possible. Under such circumstances, it was the judge's “duty” to issue a warrant for the apprehension of the fugitive:

That on producing such [Home District] certificate as aforesaid, to any judge of the circuit or district court, or judge or justice of the peace in the state or territory to which such fugitive shall have escaped, it shall be the duty of such judge or magistrate to grant a warrant authorizing any marshal, sheriff, sergeant, constable, or public bailiff of the state or territory last aforesaid, to apprehend such fugitive, and bring him or her before such judge or justice . . ..

Furthermore, after apprehension of the fugitive, the only determination that the Fugitive District judge was entitled to make was whether “the person so apprehended is the same person named or mentioned in or by the aforesaid [Home District] certificate”. Having determined that issue, the judge was required to turn over the fugitive:

[I]f it shall thereupon appear to the satisfaction of such [Fugitive District] judge or magistrate, by affidavit or otherwise, that the person so apprehended is the same person named or mentioned in or by the aforesaid [Home District] certificate, the said judge or justice shall issue his warrant requiring any marshal, sheriff, sergeant, constable, or public bailiff, of such state or territory, to take the charge and custody of such fugitive, and to deliver him or her to the said claimant, or his or her agent . . ..

It seems a fair inference that these provisions reflected the perception of the drafters that free state judges were using, or at least might use, their greater discretion under the 1793 Act to evade their responsibilities to issue warrants for the arrest and turnover of fugitives.

A third advantage that accrued to masters who obtained Home District certificates was the right to obtain assistant in intrastate transport of their captured fugitives. When the Fugitive District judge issued a warrant directing the marshal or other law enforcement officer to turn over the fugitive to the claimant, the claimant was entitled to have the officer, for a fee, transport the fugitive to the border of the state:

. . . [T]he said [Fugitive District] judge or justice shall issue his warrant requiring any marshal . . . [etc.] of such state or territory, to take the charge and custody of such fugitive, and to deliver him or her to the said claimant, or his or her agent on the confine or boundary of the state or territory last aforesaid, in the most direct and usual route to the place from whence the said fugitive shall have absconded.

While this benefit may seem trivial, its inclusion is interesting. It may suggest that the drafters thought southerners were concerned that a return trip with a captured fugitive - for example, from Cleveland to Cincinnati, or from Buffalo to New York City - was a potentially hazardous undertaking.

Finally, the Bill authorized returning masters to receive similar transportation services from law enforcement in other states through which they passed with their captives. A Maryland master returning with a fugitive from New York via Pennsylvania, for example, was entitled to have a Pennsylvania sheriff transport the fugitive from the New York-Pennsylvania border to the Pennsylvania-Maryland border:

And the judge of any district or circuit court, or any judge or justice of the peace of any state or territory, between the state or territory wherein such fugitive may be apprehended, and the state or territory from whence he or she shall have escaped, shall, on the application of such claimant, or his agent, and on inspection of the aforesaid certificate, issue a warrant requiring any sheriff, marshal, sergeant, constable, or public bailiff, of such intervening state or territory to receive such fugitive on the confine or boundary of such state or territory, and to deliver him or her to the claimant or his agent, on the confine or boundary thereof, in the most direct and usual route to the place from whence such fugitive shall have absconded.

Were southern masters so concerned about their security on return trips that the drafters of the Bill set up this remarkable - and remarkably intrusive - procedure? It would seem so.

In the next post, we will look at yet other advantages accruing to masters who obtained Home District certificates.

About the illustration:

A satire on the antagonism between Northern abolitionists on the one hand, and Secretary of State Daniel Webster and other supporters of enforcement of the Fugitive Slave Act of 1850. Here abolitionist William Lloyd Garrison (left) holds a slave woman in one arm and points a pistol toward a burly slave catcher mounted on the back of Daniel Webster. The slave catcher, wielding a noose and manacles, is expensively dressed, and may represent the federal marshals or commissioners authorized by the act (and paid) to apprehend and return fugitive slaves to their owners. Behind Garrison a black man also aims a pistol toward the group on the right, while another seizes a cowering slaveholder by the hair and is about to whip him saying, "It's my turn now Old Slave Driver." Garrison: "Don't be alarmed Susanna, you're safe enough." Slave catcher: "Don't back out Webster, if you do we're ruind." Webster, holding "Constitution": "This, though Constitutional, is "extremely disagreeable." "Man holding volumes "Law & Gospel": "We will give these fellows a touch of South Carolina."Man with quill and ledger: "I goes in for Law & Order." A fallen slaveholder: "This is all "your" fault Webster." In the background is a Temple of Liberty flying two flags, one reading "A day, an hour, of virtuous Liberty, is worth an age of Servitude" and the other, "All men are born free & equal." The print may (as Weitenkampf suggests) be the work of New York artist Edward Williams Clay. The signature, the expressive animation of the figures, and especially the political viewpoint are, however, uncharacteristic of Clay. (Compare for instance that artist's "What's Sauce for the Goose," no. 1851-5.) It is more likely that the print was produced in Boston, a center of bitter opposition to the Fugitive Slave Act in 1850 and 1851.

The Fugitive Slave Act of 1818? Part 1

In his discussion of the Fugitive Slave Clause, referenced in my last post, Earl M. Maltz emphasizes the southern desire for greater involvement by northern state authorities in the rendition process (emphasis added):

In the antebellum world, where state government officials vastly outnumbered representatives of the federal government, these limitations [the ruling in Prigg that state officials could not be compelled to enforce the Fugitive Slave Act of 1793] were of great practical significance to slaveholders. Indeed, from an early date Southerners had pressed for greater state participation in the rendition of fugitive slaves and in 1817 nearly succeeded in having such a requirement enacted into federal law.

Having never heard that we almost had a Fugitive Slave Act of 1817 (actually 1818, hence the title of this post), I did some digging to see what I could find on the bill that failed and its legislative history.

The search was worth it. I can’t say I've completed my research, but the bill that was introduced in late December 1817 is fascinating – downright ingenious.

The moving force behind the bill that was presented seems to have been a Representative I had never heard of - James Pindall of Virginia. The Annals of Congress for the 1st Session of the 15th Congress record that on Monday December 15, 1817 Rep. Pindall moved for the appointment of a committee “to inquire into the expediency of providing more effectually by law for reclaiming servants and slaves escaping from one State into another; and that the said committee have leave to report by bill or otherwise.”

That same day, the House obligingly granted Rep. Pindall’s request, appointing a three-man committee composed of Pindall himself and two border state colleagues, Philemon Beecher of Ohio and Richard Clough Anderson, Jr. of Kentucky.

The committee worked quickly. Exactly two weeks later, on Monday December 29, 1817, “Mr. Pindall . . . reported a bill to amend the act respecting the recovery of fugitives from justice, and persons escaping from the service of their masters . . .. The bill was twice read and committed.”

In the next post, we’ll take a look at the committee’s ingenious handiwork.

Was Prigg a Compromise?

In his book Dred Scott and the Politics of Slavery, Earl M. Maltz makes an interesting point about the Supreme Court’s decision in Prigg v. Pennsylvania. I have discussed the decision at length – double click on the Prigg v. Pennsylvania label at the right to see the posts – so I will not provide a ton of detail here, but here is the essential background.

Very briefly, Justice JosephStory’s Opinion of the Court largely upheld the validity of the Fugitive Slave Act of 1793. The decision is generally seen as a “pro-southern” opinion both for this reason and because it accepted arguments, seen as coming from the south, that the Fugitive Slave Clause of the Constitution implicitly empowered Congress to fashion a federal remedy for the fugitive slave problem. In particular, Justice Story upheld the statutory scheme by which federal judges were authorized to hear slaveholder claims and order the return fugitives. A number of commentators, Maltz notes, thus see “a pro-Southern orientation in Story’s analysis.”

But Maltz also observes that it is possible to look at the opinion somewhat differently. Story also held that state officers could not be compelled to enforce the federal statute. This, Maltz suggests, was a substantial concession to the North, particularly by the three southern justices who joined Story’s opinion in full: John Catron (Tennessee), John McKinley (Alabama) and James Moore Wayne (Georgia). This is because federal judges were few and far between compared with state judicial officers. By excusing state officers from enforcing the statute, the court was placing a substantial burden on southern masters to locate a potentially distant federal judge.

Maltz persuasively argues that “the concurrence of the three southern justices in Prigg is most plausibly viewed as a reflection of a decision to sacrifice some of the interests of slaveowners in the hope of minimizing the sectional friction created by the dispute over fugitive slaves”:

. . . Catron, McKinley and Wayne almost certainly believed that they were making significant concessions to the North in endorsing the ban on supplemental state remedies for slaveowners pursuing fugitives and by the declaration that state officials could not be forced to cooperate in the enforcement of the federal statute. In the antebellum world, where state government officials vastly outnumbered representatives of the federal government, these limitations were of great practical significance to slaveholders.

After noting that two other southerners on the court – Roger B. Taney of Maryland and Peter V. Daniel of Virginia – “argued vigorously that effective enforcement . . . required participation by state officials,” Maltz points out that one of the southern justices who joined with Story explicitly referred to the trade-off between state enforcement and intersectional friction:

[W]hile conceding that the ban on state enforcement measures might well hinder the efforts of slaveowners to recapture fugitives, Wayne asserted that Southerners should be willing to pay that price in order to “remove . . . those causes which have contributed more than any other to disturb that harmony which is essential to the continuance of the Union.”

"I have not now occasion to add another word"

In his remarks of January 29, 1850, Henry Clay next turned to the issue of fugitive slaves. His seventh resolution provided:

7th. Resolved, That more effectual provisions ought to be made by law, according to the requirement of the Constitution, for the restitution and delivery of persons bound to service or labor in any State, who may escape into any other State or Territory in the Union.

Although the law that would eventually result would become flashpoint of conflict, Clay's statement in support of his resolution was exceedingly brief. The resolution related “to a subject embraced in a bill now under consideration by the Senate.” “I have not now occasion to add another word.”

About the illustration:

A sheet music cover illustrated with a portrait of prominent black abolitionist Frederick Douglass as a runaway slave. Douglass flees barefoot from two mounted pursuers who appear across the river behind him with their pack of dogs. Ahead, to the right, a signpost points toward New England. The cover's text states that "The Fugitive's Song" was "composed and respectfully dedicated, in token of confident esteem to Frederick Douglass. A graduate from the peculiar institution. For his fearless advocacy, signal ability and wonderful success in behalf of his brothers in bonds. (and to the fugitives from slavery in the) free states & Canadas by their friend Jesse Hutchinson Junr." As the illustration suggests, Douglass himself had escaped from slavery, fleeing in 1838 from Maryland to Massachusetts. He achieved considerable renown for his autobiography "Narrative of the Life of Frederick Douglass," first published in 1845. The Library's copy of "The Fugitive's Song" was deposited for copyright on July 23, 1845. An earlier abolitionist song composed by Hutchinson, "Get Off the Track!" (no. 1844-14), also used a cover illustration to amplify its message.

The Fugitive Slave Act of 1793 14: "A Claim is to be Made!"

In the last installment, I argued that Justice Story’s analysis in Prigg was complete and the outcome clear by the sixth page of his opinion. Why, then, did he go on for another twelve pages? What else was there left to say?

As you may recall, the right of recaption permitted the master (or his agent) to, in effect, repossess his slave (just as a present day repo man may repossess a car), provided he could do so “without any breach of the peace or any illegal violence.” Breach of the slave’s peace, presumably, did not count. But there might well be situations where third parties might “secrete or conceal, or withhold the slave.” Recaption in such circumstances would require breach of the peace or violence against third parties. What then? The issue was not presented in the case (so far as we can tell), but Justice Story, for whatever reason, decided to explore it anyway.

As a practical matter, there were several choices. First, it was possible that the Clause did not impose any affirmative obligation on either the states or the federal government to establish procedures to assist slaveholders in such cases. Alternatively, procedures might be required, but if so, who was obligated to establish them? The states, the federal government, or both?

Justice Story first addressed, and dismissed, the possibility that no one – neither the states nor the federal government – was obligated to establish remedies for the slaveholder. To begin with, such a result would relegate the Clause to “a delusive and empty annunciation,” implicitly contradicting Justice Story’s earlier premise that the Clause granted slaveholders a positive, unqualified right to possession:

If, therefore, the clause of the constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced, in cases where it did not execute itself, it is plain, that it would have been, in a great variety of cases, a delusive and empty annunciation.

With this background, Justice Story then turned to the language of the Clause – “’but he (the slave) shall be delivered up, on claim of the party to whom such service or labor may be due.’” This language, he opined, “implies at once a guarantee and a duty.” It imposed an obligation on someone to enact legislation enforcing the slaveholder’s right:

Now, we think it exceedingly difficult, if not impracticable, to read this language, and not to feel, that it contemplated some further remedial redress than that which might be administered at the hands of the owner himself. A claim is to be made! . . . The slave is to be delivered up on the claim. . . . [These actions] require the aid of legislation, to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave.

The Fugitive Slave Act of 1793 13: The Myth Takes A Bite

Our last episode was a while ago, so you may want to start by reviewing earlier posts on Prigg. To make a long story short, when we last visited Justice Joseph Story, he had bought, hook, line and sinker, the myth that southern states would not have joined the Union without a fugitive slave clause that assured them “the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape.”

Justice Story’s conclusions as to what the Fugitive Slave Clause meant all flowed from this premise. Justice Story himself made crystal clear that his interpretation of the Clause represented an attempt to “effectuate” the Clause’s “objects” and “manifest purpose” as he understood them:

How, then, are we to interpret the language of the clause? The true answer is, in such a manner as, consistently with the words, shall fully and completely effectuate the whole objects of it. If, by one mode of interpretation, the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and by another mode, it will attain its just end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the constitution to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them.

What were the clause’s “obvious ends”? Justice Story circled back to restate them in the broadest possible form – a form that dictated the outcome (emphasis added):

The clause manifestly contemplates the existence of 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. The slave is not to be discharged from service or labor, in consequence of any state law or regulation. Now, certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said, that any state law or state regulation, which interrupts, limits, delays or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and labor, operates, pro tanto, a discharge of the slave therefrom. The question can never be, how much is the slave discharged from; but whether he is discharged from any, by the natural or necessary operation of state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right.

Having established that the slaveholder’s right was absolute and immediate, and that the slaveholder had the same right to recover his slave in another state as he had in his own, Justice Story then zeroed in more precisely on what this meant. In his own state, the master had the right of “recaption”, that is, the right to seize and recapture his slave without involving law enforcement or judicial officers, provided it could be accomplished without a breach of the peace:

[T]he clause puts the right to the service or labor upon the same ground, and to the same extent, in every other state as in the state from which the slave escaped, and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also. The owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own state confer upon him, as property; and we all known that right of seizure and recaption is universally acknowledged in all the slave-holding states. . . .

It followed, Justice Story held, that the Constitution conveyed on masters the same right of recaption in free states:

Upon this ground, we have not the slightest hesitation in holding, that under and in virtue of 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.

We are only six pages into Justice Story’s 19-page opinion. Although he has (as we shall see in future installments) a good deal more to say, it is important to recognize that, at this point, the game is over as a practical matter. Prigg and his assistants had the right to enter Pennsylvania and seize and repossess Margaret Moran and her children without interference. Pennsylvania was barred from enacting or enforcing any law that “interrupts, limits, delays or postpones” this right. Pennsylvania indicted and convicted Prigg for violating such a law. It is not hard to figure out where this is going.

The Fugitive Slave Act of 1793 12: Justice Story Buys the Myth

The most extraordinary thing about Justice Story’s opinion in Prigg is that it rests on a myth.

After the preliminaries (facts, procedural history, complements to the parties, the sensitive nature of the case), Justice Story began his substantive analysis by embracing and incorporating the myth of the Fugitive Slave Clause’s creation. I have emphasized key words and phrases:

Historically, it is well known that the object of [the Fugitive Slave Clause] was to secure to the citizens of the slave-holding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slave-holding States, and indeed was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.

As I explained in an earlier post, this creation myth of the Fugitive Slave Clause is pure fantasy. In the next paragraph, Story admitted that, but for the Clause, slaveholding states had no protection against non-slave states freeing runaways coming within their borders. Although Story asserted that this buttressed his conclusion about the nature of the Clause, quite the opposite is true: any protection that the Clause provided slaveholding states was better than nothing.

Furthermore, there is nothing in the historical record (and Story cited nothing) indicating that an all-encompassing Fugitive Slave Clause was part of a “fundamental” bargain “without the adoption of which the Union could not have been formed.” In his argument (which Justice Story ignored), the Attorney-General of Pennsylvania had explained that the historical record supported placing exactly the opposite spin on the myth:

[S]ymptoms of repugnancy to slavery began to be manifested in Pennsylvania and other states [in the 1780s]; and the southern states were apprehensive that it might, at some future day, interfere with the recovery of their property. They desired a guarantee from the general government; not that that government should provide for redelivery of their fugitive slaves, but that the constitution of the Union should prohibit the states from passing laws declaring them to be free. The provision of the constitution under consideration furnishes this guarantee; it never was intended for more. See Elliot’s Debates, 335, 336; Mr. Madison’s and Governor Randolph’s speeches in the Virginia convention.

Justice Story assumed that slave states would not have adopted the Constitution without a clause guaranteeing them an “unqualified right” to recapture. But the Pennsylvania Attorney-General pointed out that it was equally plausible to assert that non-slaveholding states would have refused to join the Union if the clause had not been narrowly drawn:

Had the southern states demanded more than this simple guarantee [that states should be prohibited from passing laws declaring fugitive slaves to be free]; had they required that the right of the states to prescribe the mode of surrendering up fugitive slaves should be yielded to congress exclusively; we know not but it might have jeoparded [sic?] the formation of the Union itself. It is well known, the word “slave” is not found in the constitution. That it was excluded on account of the scruples of certain of the northern members of the convention; and had these members been told, that they were depriving the states they represented of the power of directing the mode in which fugitive slaves were to be redelivered to their masters, who can doubt, that they would have rejected with indignation, any instrument of government, containing such a surrender of state sovereignty as this?

The Fugitive Slave Act of 1793 11: A Hypothetical Decision

This is proving to be a very long series. Before looking at what the Supreme Court actually did in Prigg, I thought I should sum up what amounts to the prologue by laying out what I think the court should, or at least could, have done.

As I have indicated, I believe a fair reading of the Fugitive Slave Clause shows it to have been quite limited in scope. It (a) forbade states from freeing slaves who escaped into them, and (b) required states to “deliver up” fugitive slaves. Nothing in the Clause forbade states from establishing reasonable procedures regulating the manner in which masters were to make applications for arrest and delivery of fugitives. Likewise, nothing in the Clause barred states from declaring that willful violation of those procedures amounted to kidnapping, punishable as a felony.

So too with the Fugitive Slave Act. Even assuming that Congress had the power under the Constitution to pass the Act – an issue that the Supreme Court did not have to decide – Section 3 simply gave a master the additional right to seize the alleged fugitive and then turn the fugitive over to a state or federal judge for a final determination. States could not impose procedures on federal courts, but nothing in Section 3 forbade states from establishing procedures governing the practices of their own courts. Likewise, nothing in the Act barred states from criminalizing the willful failure to obtain a certificate from some judicial authority, state or federal.

That is precisely what Edward Prigg did here. After he failed to obtain a certificate from the state justice of the peace, he had the right and the obligation to apply to another state judge, or, failing that, to a federal judge. He did not do so. Instead, he simply kidnapped Margaret Morgan and her children. The Commonwealth of Pennsylvania was, I believe, entitled to punish this conduct.

In short, it seems to me that the Supreme Court could have affirmed Prigg’s conviction and sidestepped virtually all the constitutional issues. As I’m sure you know, that is not the route the Court chose to take.

The Fugitive Slave Act of 1793 10: Pennsylvania and Maryland Construct a Test Case

As we have seen, on April 1, 1837, Edward Prigg, Nathan S. Bemis, Jacob Forward and Stephen Lewis seized Margaret Morgan and her children in York County, Pennsylvania and transported them to Maryland and slavery.

At some point thereafter, a York County grand jury indicted Prigg, Bemis, Forward and Lewis for kidnapping Morgan in violation of Section 1 of the 1826 Act. The indicted defendants, however, were no longer in Pennsylvania; they were safely sheltered in Maryland.

Mysteries abound in the case, and now we encounter another. Maryland was obligated to extradite the defendants to Pennsylvania at the latter state’s request. Ironically, Maryland’s obligation to do so sprang from the Extradition Clause, which shared Article IV, Section 2 with the Fugitive Slave Clause, and from Sections 1 and 2 of the same 1793 Act that also included the Fugitive Slave Act of 1793. The defendants were not extradited, however, and I have been unable to determine why not. Two possibilities come to mind: Pennsylvania demanded extradition and Maryland refused; or Pennsylvania did not bother to make a formal demand because it was clear that Maryland would not comply. One way or the other, the two states entered into negotiations over the matter.

It took two years, but in May 1839 the states struck a deal by which one of the four defendants – Edward Prigg – was returned to Pennsylvania, to be tried under special procedures that were designed to create a test case “to settle . . . the power of state legislation over” the Fugitive Slave Clause. Because the states were the real parties in interest, attorneys for the State of Maryland represented Prigg; the attorneys representing Pennsylvania included its Attorney-General. Before the Supreme Court, Mr. Johnson, the Pennsylvania Attorney-General, hailed the agreement as an exemplar of inter-state cooperation:

This proceeding was one of amity, of concord, on the part of Pennsylvania and of Maryland, which were, as the learned counsel had told the court, the real and substantial parties. They came into that court to try a great question of constitutional law, to terminate disputes and contentions which were arising, and had for years arisen, among the border line between them, on this subject of the escape and delivery up of fugitive slaves. Neither party sought the defeat or humiliation of the other. It was for the triumph of law, they presented themselves before the court. They were engaged, under an imperative sense of duty, in the work of peace; and he hoped he would be pardoned, if he added, of patriotism also.

I wonder, however, whether Prigg demonstrates why test cases are often bad ideas. In its eagerness to settle the issue, one way or the other, did Pennsylvania lose sight of Margaret Morgan – or at least of her children? As I mentioned above, the charge was that Prigg had kidnapped Morgan. The indictment on which Prigg was tried does not seem to have included a charge of kidnapping the children, at least one of whom was conceived and born in Pennsylvania.

Margaret Morgan was a fugitive slave. The child born in Pennsylvania was a free person under that state’s law. Maryland presumably would have argued that the child, too, was a fugitive subject to capture because the child of a female slave was a slave under Maryland law; the fact that Margaret conceived and gave birth while an unlawful fugitive in a free state should not change the status of a her child who would otherwise have been a slave. Even so, the kidnapping of the child clearly presented far more complex and difficult issues than did the kidnapping of Margaret herself – issues that the Supreme Court was able to ignore because Pennsylvania did not prosecute Prigg for the child’s kidnapping.

Prigg was tried in York County on May 22, 1839. In accordance with the special procedures agreed to between the states, the jurors rendered a “special verdict” that described the applicable Pennsylvania statutes, Margaret Morgan’s history, and Prigg’s “remov[al] and carry[ing] away” of her and her children to Maryland. The jury did not declare Prigg innocent or guilty, but instead left it to the trial judge to reach a determination based upon the facts set forth in the special verdict.

By prearrangement, the trial judge gave judgment against Prigg, who in May 1840 appealed to the Supreme Court of Pennsylvania on the ground that the 1826 Pennsylvania Act “is repugnant to the provisions of the constitution of the United States, and is therefore void.”

The Pennsylvania Supreme Court affirmed “pro forma” (which in this context apparently means summarily and without opinion). This in turn furnished the foundation for Prigg to appeal to the United States Supreme Court.

The Fugitive Slave Act of 1793 9: Two Tales of Margaret Morgan

Facts often get lost in legal decisions. Prigg seems to be an interesting example of this phenomenon.

The official report relates that, as of 1832, “and for a long period before that time,” Margaret Morgan, a “negro woman,” was the slave for life, under the laws of the state of Maryland, of one Margaret Ashmore, a resident of Harford County, Maryland. “Some time in the year 1832,” Morgan escaped and fled from Maryland to Pennsylvania. She apparently settled in York County, Pennsylvania, where she resided until her arrest in (apparently) March 1837.

The report relates that Morgan gave birth to “children” in Pennsylvania. One child was born in Pennsylvania “more than a year after Margaret Morgan had fled and escaped from Maryland.” The implication, at least, is that one other child was born less than a year after Morgan fled, and was probably conceived in Maryland.

In February 1837, Margaret Ashmore appointed Edward Prigg, also a resident of Maryland, as “her agent or attorney, to seize and arrest the said negro woman, Margaret Morgan, as a fugitive from labor, and to remove, take and carry her from [Pennsylvania] into the state of Maryland, and there deliver her to” Ashmore.

As we will see, three other men – Nathan S. Bemis, Jacob Forward and Stephen Lewis, Jr. – were later indicted with Prigg. The court report does not relate whether Ashmore appointed them as her agents as well, or whether Prigg hired them as assistants, either in Maryland or Pennsylvania.

Prigg traveled to York County promptly after his appointment. Presumably, Ashmore and Prigg already knew of Morgan’s whereabouts. In the month of his appointment – February 1837 – Prigg appeared before a justice of the peace of York County, Thomas Henderson, Esq. It seems that Prigg was aware of and initially followed the procedures found in the 1826 Act, for he

made oath that the said negro woman, Margaret Morgan, had fled and escaped from the State of Maryland, owing service or labor for life, under the laws thereof, to the said Margaret Ashmore.

Prigg may have sought the arrest of Morgan’s children, as well as of Morgan herself, because Justice Henderson issued a warrant for “Morgan, and her children.” In accordance with the 1826 statute, the warrant was addressed to a local constable:

[T]he said Thomas Henderson . . . issued his warrant, directed to one William McCleary, then and there being a regularly appointed constable in and for York county, commanding him to take the said negro woman, Margaret Morgan, and her children, and bring them before the said Thomas Henderson, or some other justice of the peace for the said county . . ..

In accordance with the warrant, Constable McCleary “apprehend[ed]” Morgan and her children and brought them before Justice Henderson.

Then events took an odd turn. “Henderson thereupon refused to take further cognizance of said case.” Exactly what this means, or why Henderson acted as he did, the report does not say. Was he a quasi-abolitionist who could not bring himself to issue the certificates Prigg was seeking? Did he realize that he had been handed a political hot potato that he wanted nothing to do with?

I infer that Morgan and her children were released from custody because of what happened next. On April 1, 1837, Prigg, with the help of Bemis, Forward and Lewis, simply seized Morgan and her children and “carried [them] into Maryland, and delivered them to Margaret Ashmore.”

Professor Akhil Amar adds facts that make the story of Margaret Morgan and her children even more appalling than the pale outline provided by the court:

Marylander John Ashmore owned several slaves whom he had allowed to live in virtual freedom but never formally emancipated. One of these, Margaret, married James Morgan, a free black. The couple had several children in Maryland and later, with the apparent acquiescence of Ashmore’s heirs, moved to Pennsylvania, where for any years they lived openly as a free family. There, Margaret gave birth to one or more additional children, who under Pennsylvania law were free citizens born on free soil and thus fell far outside the fugitive-slave category. Eventually, Ashmore’s heirs decided to claim Margaret as their slave and sent Edward Prigg and others into Pennsylvania to recover their alleged property. The Prigg party dragged Margaret and her children into Maryland, where the blacks were treated as slaves and apparently sold.