Saturday, September 13, 2008

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.

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