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A “Triumph of Freedom” After All? Prigg v. Pennsylvania Re-examined

Published online by Cambridge University Press:  21 July 2011

Leslie Friedman Goldstein
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Extract

Prigg v. Pennsylvania (1842), has puzzled scholars for generations. Law professor David Currie has called it “perplexing.” It is a case over which scholars have come to a wide array of conflicting conclusions.

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Law and History Review , Volume 29 , Issue 3 , August 2011 , pp. 763 - 796
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Copyright © the American Society for Legal History, Inc. 2011

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References

1. Prigg v. Pennsylvania, 41 U.S. 539 (1842)Google Scholar.

2. Currie, David P., The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (Chicago: University of Chicago Press, 1985), 241–45Google Scholar, quote at 245.

3. Wiecek, William, “Slavery and Abolition before the U.S. Supreme Court 1820–1860,” Journal of American History 65 (1978): 34–59CrossRefGoogle Scholar. See also, Finkelman, Paul, “Prigg v. Pennsylvania and Northern State Courts: Anti-Slavery Use of a Pro-Slavery Decision,” Civil War History 25(1979): 5–35CrossRefGoogle Scholar.

4. Wiecek, ibid., 47. Finkelman, ibid., 16–19.

5. The case presented no such law but Taney and Daniel in dissent complained of this legal outcome.

6. William Wetmore Story, Life and Letters of Joseph Story, Vol. 2 (Boston: Little and Brown, 1851), 392–95.

7. Ibid., 292–93.

8. Swisher, Carl, The Taney Period 1836–1864, Vol. V of The Oliver Wendell Holmes Devise History of the Supreme Court of the United States (New York: Macmillan, 1974), 542–543Google Scholar, and Wiecek, “Slavery and Abolition,” 46, n. 47, both citing letter to Chase of March 12, 1847, Chase Papers, Library of Congress.

9. Biographical Directory of the U.S.Congress. http://bioguide.congress.gov/scripts/biodisplay.pl?index=S001068; Robert C. Kennedy, “Charles Sumner,” in The Impeachment of Andrew Johnson: Biographies http://www.impeach-andrewjohnson.com/11BiographiesKeyIndividuals/CharlesSumner.htm (June 22, 2009).

10. Wiecek, “Slavery and Abolition,” 46, n. 47.

11. Prigg, 41 U.S. at 611. Somerset v. Stewart, 98 English Reports 499, 510 (King's Bench, 1772).

12. Wiecek, “Slavery and Abolition,” 56; Lemmon v. The People, 20 N.Y. 562 (1860), cited in Wiecek at 57.

13. Aynes, Richard, “Bradwell v. Illinois: Chief Justice Chase's Dissent and the ‘Sphere of Women's Work’,” Louisiana Law Review [59 (1999): 521–41, at 522Google Scholar.

14. Thomas Morris, Free Men All: The Personal Liberty Laws of the North 1780–1861 (Baltimore: Johns Hopkins University Press, 1974), 106, citing letter of March 1, 1843.

15. Ibid., citing essay of March 1842, “The Duty of the Free States.”

16. Philanthropist, March 9, 1842, cited in Finkelman, “Anti-Slavery Use,” 17.

17. Warren, Charles, The Supreme Court in U.S. History, Vol. II (of III) (Boston: Little, Brown, 1923), 358Google Scholar.

18. Swisher, The Taney Period, 541–44, 547, basically echoes Charles Warren's conclusion and shows no awareness of the Berrien letter described in text following note 19.

19. Biographer Gerald T. Dunne frankly does adopt this standard. Dunne, Gerald T., Justice Joseph Story and the Rise of the Supreme Court (New York: Simon and Schuster, 1970), 402Google Scholar.

20. McClellan, James, Joseph Story and the American Constitution: A Study in Political and Legal Thought (Norman: University of Oklahoma Press, 1971), 262–63, n. 94Google Scholar. This copy of the letter, from the papers of Berrien in the Southern Historical Collection, University of North Carolina, is available on microfilm reel no.1 via loan. The general topic of the letter is the need for a federal law applying the common law of crimes to admiralty and maritime jurisdiction.

21. “John M. Berrien,” Biographical Directory of the U.S. Congress http://bioguide.congress.gov/scripts/biodisplay.pl?index=B000413 (June 25, 2009).

22. McClellan, Joseph Story, emphases in the original.

23. William W. Story, Life and Letters, Vol. 2, 404–5. The ellipsis also omits a paragraph on a proposed Judicial Act of 1842.

24. Fehrenbacher, Don E. and McAfee, Ward M., The Slaveholding Republic: An Account of the United States Government's Relation to Slavery (New York: Oxford University Press, 2001), 221 (source of quote)Google Scholar; Holden-Smith, Barbara, “Lords of Lash, Loom, and Law: Justice Story, Slavery, and Prigg v. Pennsylvania,” Cornell Law Review 78 (1993):1086–1151Google Scholar; Finkelman, Paul, “Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism,” The Supreme Court Review, 1994: 247–94CrossRefGoogle Scholar; and Amar, Akhil Reed, America's Constitution: A Biography (New York: Random House, 2005), 243Google Scholar.

25. Holden-Smith, “Lords,” 1133, 1137–138; Finkelman, “Story Telling,” 249, 251, 282–83, 286, 290, 291–93.

26. Eisgruber, Christopher L.M., “Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism,” University of Chicago Law Review 55 (1988): 273–327CrossRefGoogle Scholar; Maltz, Earl, “The Problem of Fugitive Slaves,” pp. 83–113 in Slavery and the Supreme Court, 1825–1861 (Lawrence: University of Kansas Press, 2009)Google Scholar; see also Maltz, , “Majority, Concurrence, and Dissent: Prigg v. Pennsylvania and the Structure of Supreme Court Decisionmaking,” Rutgers Law Journal 31 (2000): 345–98Google Scholar.

27. Worcester v. Georgia, 31 U.S. 515 (1832)Google Scholar.

28. Elkison v. Deliesseline, 8 F. Cas. 493, 496.

29. See text for note 36 below.

30. Swisher, Taney Period, 544; Newmyer, Supreme Court Justice, 378. Both cite Story's discussion of the rendition clause recorded verbatim in notes by student Rutherford B. Hayes on December 21, 1843. See also Story's Letter to Simon Greenleaf, January 4, 1845, to the effect that “if Texas is annexed” (something Story dreaded as strengthening the slave power), in part “we owe it to the Abolitionists.” William W. Story, Life and Letters, Vol. 2, 511–12

31. Newmyer, Supreme Court Justice, 377, citing letter to Ezekiel Bacon, November 19, 1842.

32. Cover, Robert, Justice Accused (New Haven: Yale University Press, 1975) 238–43Google Scholar; and Roper, Daniel, “In Quest of Judicial Objectivity: The Marshall Court and the Legitimation of Slavery,” Stanford Law Review 21 (1969): 532–39CrossRefGoogle Scholar.

33. William W. Story, Life and Letters, Vol. 1, 336; Story, William W, ed. The Miscellaneous Writings of Joseph Story (Boston: C.C. Little and J. Brown, 1852), 122–47Google Scholar, cited in Wiecek, “Slavery and Abolition,” 36, n. 13.

34. U.S. v. La Jeune Eugenie 26 F. Cas.832, 845–48.

35. Story to Harriet Martineau, January 19, 1839, in William W. Story, Life and Letters, Vol. 2, 307–8. He also expressed fear there that “the question of slavery…will, if it continues to extend its influence, lead to a dissolution of the union.”

36. These laws had been declared unconstitutional at the federal circuit level but were continuing to be enforced. See text at citation for note 29 above. Howell Meadoes Henry, “The Seamen Acts,” in “The Police Control of the Slave in South Carolina” (PhD diss., Vanderbilt University, 1914), 124–33; W.W. Story, Life and Letters, Vol. 2, 514–15, Letter to Simon Greenleaf, February 2, 1845; and United States Congress, 27th Congress, 3rd Session, January 20, 1843, Majority and Minority Report Committee No. 80.

37. Newmyer, Supreme Court Justice, 350–51, and nn. 21, 22, and 24, citing letters by Story from 1837, 1844, and 1845.

38. Berrien's copy of the letter is handwritten; the inflammatory part of the passage omitted by William Story, but for its first line, falls entirely upon page three, and but for the last line of page three, the page is filled with the section. Joseph Story's own hand-copied version of the letter would have been used by the son as the basis for the collection in the biography. If in that copy, which is no longer extant (per email communication with James McClellan, 2008), Story had put the entire section one line further down, it would have comprised page three. This page may have been lost or destroyed by Joseph Story.

39. Prigg v. Pennsylvania, 41 U.S. 539, 612–13.

40. The implications become even more abhorrent if one reads them in light of Story's statement from his Commentaries published nine years earlier, to the effect that the words of the Fugitive Slave Clause “contemplate summary ministerial proceedings and not the ordinary course of judicial investigation.” Melville Bigelow, ed., Commentaries on the Constitution of the United States, Vol. 2 (first published in 1833), 5th ed. (Boston: Little, Brown and Co., 1891), 588, 589Google Scholar; sections 1811, 1812 cited in Newmyer, Supreme Court Justice, 352. W.W. Story, Life and Letters, Vol. 2, 396.

41. W. W. Story, Life and Letters, Vol. 2, 396. Also cited in Morris, Free Men All, 102.

42. Nor, by 1842, did he take literally his own words from the Commentaries, years before, about “summary ministerial proceedings.” See note 40 above.

43. Eventually, the Boston jailor yielded to antislavery pressure and released Latimer to the custody of Gray, rather than continuing to hold him for Gray. Then, uncertain that he could maintain control against the antislavery mob, Gray sold the slave to abolitionists.

Morris, Free Men All, 109–11.

44. Located in Article IV, which describes interstate relations, the clauses read as follows:

“A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

“No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”

45. In the 1840s, Pennsylvania had two federal judges; states often had only one. Prigg, 41 U.S. 539, at 631, (Taney, CJ, dissenting); Swisher, Taney Period, 536.

46. “An Act respecting Fugitives from Justice, and Persons Escaping from the Service of Their Masters,” 1 Stat. 302 1793.

47. Facts here and below, unless otherwise indicated, are taken from case records in the United States Supreme Court Reports, Prigg v. Pennsylvania, 41 U.S. 539–58.

48. For details see Goldstein, Leslie F., Constituting Federal Sovereignty (Baltimore: Johns Hopkins Press, 2001), 165–71; Finkelman, “Anti-Slavery Use,” 21Google Scholar.

49. The most well-documented account is found in Finkelman, “Story Telling,” 274–78.

50. Ibid., 278 n.123.

51. Finkelman, “Anti-slavery Use,” 8; Holden-Smith, “Lords,” nn.223–29

52. 41 U.S. 539, at 556.

53. Earl Maltz agrees. “Majority, Concurrence, and Dissent” 396–97.

54. One can infer his antislavery position both from his being the only justice willing to let Prigg be punished as a kidnapper and from his solo opinion in Groves v. Slaughter, 40 U.S. 449 (1841), in which he insisted that under the Constitution freedom is national and slavery is local, permitted only if created by positive, state law: “The [national] Constitution acts upon slaves as persons, and not as property.” Groves, 507.

55. 31 U.S. 515 (1832).

56. The expansive quality of Marshall's reasoning in Worcester is noted by Magliocca, Gerard, “Preemptive Opinions: The Secret History of Worcester v. Georgia and Dred Scott,” University of Pittsburgh Law Review 63 (2002) 487, 538 n.233Google Scholar.

57. That this part of the federal law was unconstitutional had been the argument of Deputy Attorney General for Pennsylvania, Thomas Hambly. Prigg, 41 U.S. 539, 582–83. He quoted Justice Story back to himself from the case of Martin v. Hunter's Lessee, 14 U.S. 304 (1816): “Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself.” Martin, 330–31. See also Swisher, Taney Period, 539–41.

58. Justice Wayne presents a similar analysis, 41 U.S., 636, 444.

59. Houston v. Moore, 5 Wheaton 1, 68 (Story, J, dissenting).

60. 41 U.S. 539, 630 (Taney, CJ, dissenting).

61. 41 U.S. 539, 656–657 (Daniel, J, dissenting).

62. Moore v. Illinois, 55 U.S.14 (1852).

63. Newmyer, Supreme Court Justice, 352, 374; Morris, Free Men All, 104.

64. See pp. 2–3 above on remodeling the 1793 Act to require the safeguard of trial by jury for determining slave status and text for note 41.

65. The first new law to forbid state cooperation issued from Massachusetts in 1843, many months after the Berrien letter. Newmyer, Supreme Court Justice, 373.

66. W. W. Story, Life and Letters, Vol. 2, 392–94.

67. Ibid.

68. Ibid., 398.

69. See notes 20–22 and text therefor.

70. Prigg, 41 U.S., 612.

71. Prigg, 41 U.S. 539, 630–31 (Taney, CJ, dissenting).

72. Swisher, Taney Period, 545.

73. Wilson, Carol, Freedom at Risk: The Kidnapping of Free Blacks in America 1776–1865 (Lexington: University Press of Kentucky, 1994), 63–66Google Scholar.

74. See above pp. 2–3 on remodeling the 1793 Act to require the safeguard of trial by jury for determining slave status.

75. Finkelman, “Story Telling,” 290–91.

76. Weinberg, Louise, “Dred Scott and the Crisis of 1860,” Chicago-Kent Law Review 82 (2007): 97–139Google Scholar (claiming, 109, that by 1850 “it was reasonably foreseeable that no new slave state would ever be admitted again.”)

77. Weinberg, “Dred Scott,” 103–8; Marks, Carole, Moses and the Monster and Miss Anne (Urbana: University of Illinois Press, 2009), 137Google Scholar; and Davis, David B., Challenging the Boundaries of Slavery (Cambridge: Harvard University Press, 2003), 58, 77–78Google Scholar.

78. Graber, Mark, Dred Scott and the Problem of Constitutional Evil (New York: Cambridge University Press, 2006), 126–28CrossRefGoogle Scholar.

79. Klinker, Philip A., with Rogers Smith, The Unsteady March: The Rise and Decline of Racial Equality in America (Chicago: University of Chicago Press, 1999), 43–44Google Scholar; and Morris, Free Men All, 134.

80. See note 79.

81. Senator Berrien had no apparent role in the 1850 act. First introduced in spring of 1848 by Senator Arthur Butler [South Carolina], it went nowhere, and was re-introduced in an amended version in 1850. Butler's version would have simply given judging powers for fugitive slave cases to such federal officials as customs collectors and postmasters. The 1850 version (which passed) called on federal district judges to appoint officials called “federal commissioners” for each county. This version was suggested by Senator Lewis Cass (Democrat) of Michigan. Cass had risen to political fame as Jackson's Secretary of War directing Native American removal in the 1830s, missing by just two months an overlap with John Berrien who in June of 1831 resigned from the post of supervising that removal in his role as Attorney General in the Jackson administration. Mary Hershberger characterizes both Cass and Berrien as “ardent proponents” of Native American removal. There is more to the linkage between Native American politics and slavery politics than the personal role of Lewis Cass. See Section E below. The Fugitive Slave Act was formally introduced by Senator James Mason of Virginia, who credited Lewis Cass with having given him the plan and an anonymous “Northerner” with having drafted it. Mary Hershberger, “Mobilizing Women, Anticipating Abolition: The Struggle against Indian Removal in the 1830s,” Journal of American History, 86 (1999): 15–40. Marion Gleason McDougall, Fugitive Slaves 1619–1865, Fay House Monographs, No.3 (Boston: Ginn, 1891), 28; Morris, Free Men All, 130–35; Amy H. Sturgis, The Trail of Tears and Indian Removal (Westport, CT: Greenwood Press, 2007), 4, 40; and Foreman, Grant, Indian Removal: The Emigration of the Five Civilized Tribes of Indians (Norman:University of Oklahoma Press, 1932 and 1953)Google Scholar.

82. Morris, Free Men All, 133.

83. Ibid., 133–45 traces the 1850 debates in detail.

84. Ibid., 138–39.

85. Ibid., 139–40, 144.

86. Ibid., 143–44.

87. H.M. Henry, “Police Control of the Slave,” 127–28.

88. The historical account of Worcester v. Georgia in this paragraph derives from Charles Warren, The Supreme Court, 213–29, 234–37; Joseph C. Burke, “The Cherokee Cases: A Study in Law, Politics, and Morality,” Stanford Law Review 21 (1969): 500–31; and Miles, Edwin A., “After John Marshall's Decision: Worcester v. Georgia and the Nullification Crisis,” The Journal of Southern History 39 (1973):519–44CrossRefGoogle Scholar.

Whereas the attempt was unsuccessful for the Cherokee missionaries, the ensuing South Carolina nullification crisis pushed the Jackson administration to persuade the Georgia governor to settle the Cherokee matter via pardons, and pushed Congress to adopt the Force Act on March 2, 1833. The latter's Section Seven grants federal district court judges and Supreme Court justices power to grant writs of habeas corpus for the release of any persons held by state authorities in “jail or confinement, where he or they shall be … confined … for any act done or omitted to be done in pursuance of a law of the United States, or … any order [of a federal judge], anything in any act of Congress to the contrary notwithstanding.” Ch. 57, 4 Stat. 632, 634–35. The final phrase indicates that the words “law of the U.S.” covers treaty law and constitutional law, so would seem to apply to both the Cherokee situation and the black seamen problem. Daniel Webster personally denied that concerns with the Cherokee situation motivated the Force Act. Burke, “The Cherokee Cases,” 531.

89. See note 36 above and text therefor.

90. McDonald, Forrest, A Constitutional History of the United States (New York: Franklin Watts, 1982), 109Google Scholar; Foreman, Indian Removal, 44 and 107; Green, Michael, “The Expansion of European Colonization to the Mississippi Valley, 1780–1880,” in The Cambridge History of the Native American Peoples of the Americas, Vol. I North America, Part 1, ed. Trigger, Bruce and Washburn, Wilcomb (New York: Cambridge University Press, 1996), 517Google Scholar; Burke, “The Cherokee Cases,” 503–506, 512; Norgren, Jill, The Cherokee Cases (Norman: University of Oklahoma Press, 2004), 81–86Google Scholar; Hershberger, “Mobilizing Women,” 21.

91. Letter to Mrs. Joseph Story, Washington, January 13, 1832, in W.W. Story, Life and Letters, Vol. 2, 79.

92. Letter to Mrs. Joseph Story, Washington, February 26, 1832, ibid., 84.

93. Letter to William W. Story, Washington, February 21, 1836, ibid., 229.

94. 30 U.S. 1 (1831).

95. Letter from Story to Peters, June 24, 1831, Richard Peters Papers, Pennsylvania Historical Society, cited in Burke, “The Cherokee Cases,” 518, n. 111.

96. Hershberger, “Mobilizing Women,” 23–24.

97. Ibid., 15–21, 32. Indian Removal Act of May 28, 1830. U.S. Statutes at Large, Vol. IV, Ch. CXLVIII, 411–12, Twenty-first Congress, 1st Session. Much of the removal of tribes in Northern states occurred peaceably and by legitimate treaties. Green, “Expansion,” 529–33. Useful sources on the antiremoval campaigns and their linkage to the antislavery movement also include Kerber, Linda, “The Abolitionist Perception of the Indian,” Journal of American History 62 (1975): 271–95CrossRefGoogle Scholar; Portnoy, Alysse, Their Right to Speak: Women's Activism in the Indian and Slave Debates (Cambridge: Harvard University Press, 2005)CrossRefGoogle Scholar; Hershberger, Mary, “Review of Portnoy, Their Right to Speak,” Journal of American History 93 (2006): 528–29CrossRefGoogle Scholar; Natalie Irene Joy, “Hydra's Head: Fighting Slavery and Indian Removal in Antebellum America,” (PhD diss., University of California, Los Angeles, 2008); and Magliocca, Gerard, “The Cherokee Removal And The Fourteenth Amendment,” Duke Law Journal 53 (2003): 875–965Google Scholar.

98. Kerber, “Abolitionist Perception.” 275–76; Joy, “Hydra's Head,” “Introduction,”10.

99. W. W. Story, Life and Letters, Vol. 2, 83, Letter from Washington, D.C., March 8, 1832. The sense of what Story says after this passage is obscure. He seems to believe that the president will pay at the polls for failing to enforce the ruling, for he says we will “look to the consequences.” Jackson did, however, get re-elected.

100. Bolt, Christine, American Indian Policy and American Reform (New York: Routledge, 1990), 58Google Scholar.

101. Kerber, “Abolitionist Perception,” 274, 288; Hershberger, “Mobilizing Women,” 35.

102. Hershberger, “Mobilizing Women,” 278–82. Gerard Magliocca (in “Cherokee Removal”) has made the case that the struggle over Native American removal not only was linked to the antislavery movement from 1829 to the 1840s, but that it continued to have this impact into the postbellum period. He identifies a number of concepts and characteristic phrases from the antiremoval campaign that endured among key members of Congress, who then later deployed these terms in the shaping of the Fourteenth Amendment.

103. The Force Act of 1833 created a legal remedy (see note 88 above) but the paucity of federal magistrates around the country made it not so readily enforceable.

104. Miles, “After John Marshall's Decision,” 526, citing letter from Cass to William Reed, November 14, 1831. Cass, nonetheless, once the nullification crisis with South Carolina arose, bringing urgency to the need to avoid a violent conflict between the federal government and authorities of Georgia, worked behind the scenes to encourage the governor of Georgia to offer attractive terms of clemency to Worcester and Butler so that they would accept a gubernatorial pardon, 537.

105. Federal commissioners had existed since 1812. These were appointed on an as-needed basis by the circuit courts and paid on a fee-for-services basis, with fees set by state law. Prior to 1842 their duties were limited to taking affidavits and bail and depositions from witnesses, but pending in Berrien's Judiciary Committee as of January (and having been re-introduced after a failure to be acted upon since February of 1841) was a bill to add the enforcement powers of arrests and imprisonment. With the federal tariff highly controversial in the South and the Fugitive Slave Act highly controversial in the North, this commissioners act, as adopted in August of 1842, extended these powers in a carefully worded phrase, to “all the powers that any justice of the peace, or other magistrate, of any of the states may now exercise for … any crime or offence against United States…; and all the powers that any judge or justice of the peace may exercise under …[the law regulating] seamen in the merchant service.” Apparently, this federal law allowed that if a given state did not permit its magistrates to enforce a particular federal law, the federal commissioners would follow the same rule. The bill passed into law without substantial debate and without a slavery-influenced alignment. John C. Calhoun, for instance voted against it and Berrien for it. Lindquist, Charles, “The Origin and Development of the U.S. Commissioner System,” 14 American Journal of Legal History (1970) 1, 5–8; 5 Stat. 516Google Scholar; 11 Congressional Globe (27th Cong. 2d Sess.) 168, 718, 723, 728; 37 Journal of the House of Representatives 1283, 1400.