Monday, September 15, 2008

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.

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