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.

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.

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?