Tuesday, October 14, 2008

The Fugitive Slave Act of 1793 13: The Myth Takes A Bite

Our last episode was a while ago, so you may want to start by reviewing earlier posts on Prigg. To make a long story short, when we last visited Justice Joseph Story, he had bought, hook, line and sinker, the myth that southern states would not have joined the Union without a fugitive slave clause that assured them “the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape.”

Justice Story’s conclusions as to what the Fugitive Slave Clause meant all flowed from this premise. Justice Story himself made crystal clear that his interpretation of the Clause represented an attempt to “effectuate” the Clause’s “objects” and “manifest purpose” as he understood them:
How, then, are we to interpret the language of the clause? The true answer is, in such a manner as, consistently with the words, shall fully and completely effectuate the whole objects of it. If, by one mode of interpretation, the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and by another mode, it will attain its just end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the constitution to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them.

What were the clause’s “obvious ends”? Justice Story circled back to restate them in the broadest possible form – a form that dictated the outcome (emphasis added):
The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control or restrain. The slave is not to be discharged from service or labor, in consequence of any state law or regulation. Now, certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said, that any state law or state regulation, which interrupts, limits, delays or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and labor, operates, pro tanto, a discharge of the slave therefrom. The question can never be, how much is the slave discharged from; but whether he is discharged from any, by the natural or necessary operation of state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right.

Having established that the slaveholder’s right was absolute and immediate, and that the slaveholder had the same right to recover his slave in another state as he had in his own, Justice Story then zeroed in more precisely on what this meant. In his own state, the master had the right of “recaption”, that is, the right to seize and recapture his slave without involving law enforcement or judicial officers, provided it could be accomplished without a breach of the peace:
[T]he clause puts the right to the service or labor upon the same ground, and to the same extent, in every other state as in the state from which the slave escaped, and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also. The owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own state confer upon him, as property; and we all known that right of seizure and recaption is universally acknowledged in all the slave-holding states. . . .

It followed, Justice Story held, that the Constitution conveyed on masters the same right of recaption in free states:
Upon this ground, we have not the slightest hesitation in holding, that under and in virtue of the constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can do it, without any breach of the peace or any illegal violence. In this sense, and to this extent, this clause of the constitution may properly be said to execute itself, and to require no aid from legislation, state or national.

We are only six pages into Justice Story’s 19-page opinion. Although he has (as we shall see in future installments) a good deal more to say, it is important to recognize that, at this point, the game is over as a practical matter. Prigg and his assistants had the right to enter Pennsylvania and seize and repossess Margaret Moran and her children without interference. Pennsylvania was barred from enacting or enforcing any law that “interrupts, limits, delays or postpones” this right. Pennsylvania indicted and convicted Prigg for violating such a law. It is not hard to figure out where this is going.

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