Saturday, September 27, 2008

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?

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