Wednesday, October 15, 2008

The Fugitive Slave Act of 1793 14: "A Claim is to be Made!"

In the last installment, I argued that Justice Story’s analysis in Prigg was complete and the outcome clear by the sixth page of his opinion. Why, then, did he go on for another twelve pages? What else was there left to say?

As you may recall, the right of recaption permitted the master (or his agent) to, in effect, repossess his slave (just as a present day repo man may repossess a car), provided he could do so “without any breach of the peace or any illegal violence.” Breach of the slave’s peace, presumably, did not count. But there might well be situations where third parties might “secrete or conceal, or withhold the slave.” Recaption in such circumstances would require breach of the peace or violence against third parties. What then? The issue was not presented in the case (so far as we can tell), but Justice Story, for whatever reason, decided to explore it anyway.

As a practical matter, there were several choices. First, it was possible that the Clause did not impose any affirmative obligation on either the states or the federal government to establish procedures to assist slaveholders in such cases. Alternatively, procedures might be required, but if so, who was obligated to establish them? The states, the federal government, or both?

Justice Story first addressed, and dismissed, the possibility that no one – neither the states nor the federal government – was obligated to establish remedies for the slaveholder. To begin with, such a result would relegate the Clause to “a delusive and empty annunciation,” implicitly contradicting Justice Story’s earlier premise that the Clause granted slaveholders a positive, unqualified right to possession:
If, therefore, the clause of the constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced, in cases where it did not execute itself, it is plain, that it would have been, in a great variety of cases, a delusive and empty annunciation.

With this background, Justice Story then turned to the language of the Clause – “’but he (the slave) shall be delivered up, on claim of the party to whom such service or labor may be due.’” This language, he opined, “implies at once a guarantee and a duty.” It imposed an obligation on someone to enact legislation enforcing the slaveholder’s right:
Now, we think it exceedingly difficult, if not impracticable, to read this language, and not to feel, that it contemplated some further remedial redress than that which might be administered at the hands of the owner himself. A claim is to be made! . . . The slave is to be delivered up on the claim. . . . [These actions] require the aid of legislation, to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave.

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