by H. Robert Baker. Lawrence: University Press of Kansas, 2012. 216 pp. Cloth $34.95. ISBN: 978-0-7006-1864-4. Paper $16.95 ISBN: 978-0-7006-1865-1
Reviewed by Bradley C. Canon, Professor Emeritus, University of Kentucky. pol140[at] uky.edu.
“Prigg v. Pennsylvania is a landmark Supreme Court case? Never heard of it.” Well, Prigg is hardly a memorable constitutional law case nowadays, hasn’t been over the last century and a half, and isn’t found in any constitutional law textbooks. But it did have quite an impact on American history. Thus it is the subject of the latest book in the “Landmark Law Cases and American Society” series edited by Peter Charles Hoffer and N. E. H. Hull.
Prigg, decided in 1842, was the first case concerning freedom for slaves the Court rendered and the most salient one before Dred Scott. Put briefly, the Court was asked whether a slave freed in practice by her master, but not legally manumitted, could legally be recaptured years later at the behest of the master’s widow and be forcibly taken from Pennsylvania, where she resided, back to Maryland in violation of the former state’s kidnapping law (which required a hearing in a court of record and subsequent warrant to remove escaped slaves). Arguing on behalf of Prigg, the slavecatcher, Maryland contended that Pennsylvania’s law was unconstitutional because it diminished the scope of the Constitution’s fugitive slave clause (Art. IV, Sec. 2) which gave Congress exclusive jurisdiction on the subject. Congress, moreover, had passed the Fugitive Slave Act of 1793 which required only a summary judgment from any magistrate to render the return legal. Thus state laws adding to this process were void.
Pennsylvania contended that Congress had no power to legislate under the fugitive slave clause because no specific grant of legislative power appeared in the clause. It followed that the 1793 act was unconstitutional. Beyond that, even if constitutional, the act’s process was too minimal and would allow free blacks to be turned into slaves without due process. The state had a police power obligation to protect its residents against violence and kidnapping.
The Supreme Court sided with Maryland in an 8-1 vote. Pennsylvania’s kidnapping law was struck down insofar as it applied to blacks. Justice Joseph Story writing for the Court held that Article IV, Sec. 2, guaranteed slaveholders’ right to recapture fugitive slaves anywhere in the country without a warrant and that Congress had an exclusive right to legislate on this matter. States could act only if violence or breach of the peace resulted. The logical corollary to federal exclusivity, Story held, is that Congress could not compel states to assist in recaptures. However, states could do so if they chose. Two justices (including Marylander C. J. Roger Taney) [*576] concurred in the result, but argued that the fugitive slave clause laid a positive duty upon the states to assist slave owners in recovering their property. Justice John McLean, a non-abolitionist Ohioan, wrote a spirited dissent. He argued that blacks in Northern states were presumed to be free and their right to liberty could not be compromised on the naked claim of a slaveholder. The fugitive slave clause did not elevate the latter’s right above all other rights.
Baker doesn’t discuss the Prigg case until halfway through the book. The first part of the book is a highly readable and informative discussion of the status of blacks in the North – both free and fugitive – going back to the late 18th century. Baker focuses on legislation in northern states where it was feared that free blacks could be captured and “taken south and sold” without due process. This was not infrequent as it resulted in an enhanced profit for a professional slavecatcher above and beyond a contractual fee the slave’s owner would pay. Also, as northern repugnance to slavery and then abolitionist sentiment rose, many legislators wanted to put obstacles in the path of recapturing slaves. Baker also focuses on judicial proceedings involving escaped slaves, especially in northern state courts. Weaved into these foci are issues of federalism, preemption, state sovereignty and who, if anyone, was responsible for enforcing constitutional provisions that lacked a specific authorization for Congressional legislation.
Needless to say, initial reactions to Prigg differed along sectional lines. Southerners applauded, although many felt that the Court should have adopted Taney’s position instead of Story’s. The North in general objected to what it saw as a judicial assault on the rights of the states to exercise their police power. Abolitionists were horrified and many concluded that the Constitution was irrevocably pro-slavery; some advocated disunion rather than live in a country that countenanced human bondage. The case stirred many a debate from the halls of Congress and state legislatures to newspaper pages and meeting halls across the country.
Hoffer and Hull’s series is about landmark legal cases, but I think Baker’s treatment of Prigg’s impact understates its importance in shaping American history. He discusses the judicial follow-up: mostly lower federal courts enforcing Prigg and the Supreme Court thrice reaffirming it. He also notes that many northern states repealed their laws providing assistance in the rendition of slaves. But he doesn’t really probe how significant a wedge Prigg proved to be in widening America’s sectional divisiveness and mistrust, how deeply its impact aggravated both northerners and southerners.
By the late 1840s, southerners were seeing the downside of their victory. Story’s release of the states from having to assist in capturing slaves and the subsequent repeal of northern cooperative laws enhanced the difficulties of recapturing fugitive slaves. Slavecatchers could go only to federal courts for the summary hearing that the 1793 act required. Federal courts were few and far between. Sometimes the extra expense of carting an escapee to a distant court discouraged the effort altogether, especially for less valuable slaves. Southerners complained that [*577] Prigg often made recapture more rather than less difficult. (The author doesn’t speculate on whether Story, from Massachusetts, foresaw and perhaps intended this result.)
These complaints were a crucial element in the agitation leading to the Compromise of 1850. That year’s crisis was precipitated when California sought admission as a free state (with no slave state to counterbalance it) and also by a rising controversy about to what extent, if any, should Congress allow slavery in the territories won in the Mexican War. (The related question about the border between Texas and New Mexico also figured in.) The South’s major gain in the Compromise was replacing the 1793 act with the much harsher Fugitive Slave Act of 1850. It laid a positive duty upon citizens generally to assist (in a posse if necessary) in returning escaped slaves. Federal commissioners to hold summary hearings were appointed for every county in the United States. An affidavit (taken in his home state) by the slaveholder showing ownership, describing the fugitive and the approximate area he might be found was all that was necessary to obtain a certificate of removal. A commissioner received $10 if the black person was returned, but only $5 if he found a misidentification.
The Fugitive Slave Act met fierce resistance in the North. Even non-abolitionists resented the federal government’s incursion into state sovereignty and the “drafting” of citizens to do its dirty work. Abolitionists were furious and sometimes took to violent resistance. In some instances mobs formed to block the slave’s return and forcible rescues sometimes occurred. Many states refused slavecatchers the use of jails to hold fugitives until a judge or commissioner could hear the case. Governors refused to summon the militia to protect slaves from being retaken. The Underground Railroad rapidly expanded with many a fleeing slave now being sped to Canada and permanent freedom. Many free blacks moved further north of the Mason-Dixon line and the Ohio River. For their part, southerners were enraged that the North was not keeping its part of the Compromise and firebrands again threatened secession as they had done in 1850. Their ire was as much psychological as it was financial. Most likely only 30,000 to 50,000 escaped slaves made it to Canada. North and South were more sharply divided than ever. While it would go too far to list Prigg as a prime factor leading to the Civil War, it doubtlessly was an aggravating factor.
Prigg v.Pennsylvania makes interesting reading. It is a must read for scholars and students interested in American constitutional development.
Dred Scott v. Sanford, 60 U.S. 393 (1857)
Prigg v. Pennsylvania, 41 U.S. 539 (1842)
Copyright by the Author, Bradley C. Canon