NO ISSUE ROILED the American Republic in the first part of the nineteenth century as did slavery, and this was true in the courts as well. So long as the political system was able to tamp down the tensions—as it did in the 1820 Missouri Compromise—then the judiciary could ignore what its defenders euphemistically called “the peculiar institution.”
By the 1830s, however, antislavery sentiment had grown, and would continue to intensify until the Thirteenth Amendment finally abolished involuntary servitude. As the compromises over slavery that had been made at the 1787 Constitutional Convention began to unravel, issues that had been overlooked for decades could no longer be put aside. In Prigg v. Pennsylvania the justices wrestled with the problem of runaway slaves, the demands made by slave owners for the return of their “property,” and efforts by the North to allow those who had escaped from bondage to remain in freedom.
But the efforts by the judiciary, both in Prigg and in Dred Scott (see next chapter), to resolve the thorniest problem in American history both came to naught. If anything, they only fanned the flames of sectional tension.
At the 1787 Constitutional Convention in Philadelphia, the delegates had to overcome a number of serious differences in order to finally agree on a document that could be sent out to the states for ratification. Some of these are familiar, such as the agreement to base membership in the House of Representatives upon population, while each state received two senators. One of the most divisive issues involved slavery, with Southern states demanding protection for their “peculiar institution.” Although the words slave and slavery do not actually appear in the Constitution, there are several clauses that embodied the compromises made between the slaveholding states of the South and the free states of the North.
At the heart of the debate was the question of whether slaves should be considered “persons” and “property.” The North argued that if slaves were property, as Southerners claimed, then they should not be included as part of the population count used to determine representation in the lower house of Congress, but should be counted solely for purposes of taxation. Southerners argued that slaves not only produced great wealth but were a form of wealth themselves, and therefore required representation in Congress. The compromise in this area counted slaves on a three-fifths basis—that is, for terms of representation as well as taxation, five enslaved persons would count as three free persons. The agreement was a compromise over political power. The South had won extra representation for its slaves, even though the people filling the seats in Congress would always vote against the personal interests of the slaves.
The South also demanded, and won, a provision regarding runaway slaves in Article IV, Section 2: “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”
Since runaway slaves crossed state lines, and only the federal government had the power to enforce this provision, Congress passed the Fugitive Slave Act in 1793. Under the terms of this law, owners or the slave hunters they hired could capture an escaped slave in any territory or state of the Union, and all they had to do was swear orally before a state or federal judge that the person was a runaway. The captive was not entitled to a trial by jury, and the judge’s decision was final; the slave could not appeal to any other court. In addition, a person hiding an escaped slave could be fined $500—a very expensive penalty in those days.
At the time of the adoption of the 1793 act, slavery was widespread not only in the Southern states but in the Northern ones as well. Within a few decades, however, slavery had died out in the North; by the 1840s all Northern states had enacted laws freeing remaining slaves and forbidding slavery within their borders. The Missouri Compromise of 1820 also prohibited slaves in the vast Louisiana Territory above the southern border of Missouri. The eradication of slavery throughout the nation became one of the chief reforms of the Jacksonian era, and the growing abolition movement not only exacerbated tensions between North and South, but undoubtedly contributed to the coming of the Civil War.
As long as the constitutional provisions on slavery remained intact, though, there was little opponents of slavery could do on the federal level. In the Northern states, however, they achieved success in four general areas. First, they succeeded in eliminating whatever remnants of slavery existed within the North. Second, through political activism and litigation, opponents of slavery convinced most of the free states to emancipate any enslaved persons brought within their borders. In this area they relied on English law that slavery could only exist where positive—that is, legislatively enacted—law supported it. In the absence of positive law, they argued, there could be no slavery, and any slave entering the jurisdiction would be free. Chief Justice Lemuel Shaw ruled in Commonwealth v. Aves (1836) that slaves brought into Massachusetts by the voluntary action of their masters became immediately free. Soon nearly every Northern state had adopted this law, and it became the basis for the suit by Dred Scott seeking his freedom (see next chapter). As late as 1860, New York’s highest court ruled that a slave brought into the state for only one day became free (Lemmon v. The People). The Virginia owner no doubt intended to take this case to the U.S. Supreme Court, but the Civil War prevented any appeal.
Third, opponents of slavery worked to improve the condition of free blacks in the North. Many states still had “black codes” on their books from the time when slavery had been legal, and these codes restricted the rights of free blacks just as did the counterpart codes in the South. Although the Massachusetts Supreme Judicial Court upheld the segregation of black children in public schools in Roberts v. Boston (1850), within five years the state legislature banned the practice. In 1857 a new constitution in Iowa removed the word white from provisions dealing with public education, and on the eve of Abraham Lincoln’s election in 1860, blacks could find some form of public education open to them in almost all of the Northern states.
Finally, starting in the 1820s and continuing until the Civil War, Northern legislatures passed “personal liberty laws” to prevent the kidnapping of free blacks by Southerners hunting for fugitive slaves. From the beginning, opponents of slavery, and especially Northern free blacks, had been concerned that the lax standards of proof in the federal Fugitive Slave Act would lead to the kidnapping of free blacks. All a slave catcher had to do was swear before a magistrate that the captive was an escaped slave, and there was nothing—under federal law—that the black man or woman could do to prove otherwise. The federal law, however, contained no guidelines on procedures states should follow, and so opponents of slavery stepped in to secure laws aimed at preventing free blacks from being taken, and also to ensure that fugitive slaves would not be removed without a fair hearing and clear evidence that they were, indeed, runaway slaves.
In the 1820s, New Jersey, New York, and Pennsylvania passed “personal liberty laws” providing fugitive slaves with basic legal protections. They could not be removed from the state without a fair hearing and clear evidence that someone identified as a runaway slave was indeed that person. Antislavery lawyers used the personal liberty laws to protect both free blacks and fugitives in their states. They also mounted a broad attack on the federal Fugitive Slave Act and showed that, on this issue at least, they could be as ardent defenders of states’ rights and strict constitutional construction as their Southern counterparts.
They questioned the power of the federal government to pass such a law, since the Constitution did not specifically grant to Congress authorization to implement the fugitive slave clause. The wording of the clause is quite vague as to who—if anyone—has responsibility to “deliver up on Claim of the Party to whom such Service or Labour may be due.” The Constitution, they claimed, made it clear when Congress could and could not act. The necessary and proper clause (Article I, Section 8) gave Congress the power only to implement powers specifically delegated to the national government. The full faith and credit clause (Article IV, Section 1) required states to honor the legal actions taken in other states, but congressional action was needed to establish a procedure for just how that should be done. Opponents of slavery challenged the constitutionality of the Fugitive Slave Act, and took a page directly from Southern defenders of states’ rights, who argued vociferously that Congress could enact only such laws as the Constitution specifically provided. Even John Marshall’s broad interpretation of the necessary and proper clause in McCulloch v. Maryland (1819) (see Chapter 2) only extended to the delegated powers of Congress; it did not create new powers, but only gave Congress great latitude in how it would implement its authority.
The response in state courts to this reasoning was mixed. Before 1820, the high courts in Pennsylvania and Massachusetts upheld the constitutionality of the Fugitive Slave Act. Then, starting in the 1830s, the supreme courts of New York, New Jersey, and Pennsylvania all adopted the position that Congress lacked power to pass such a law. Chief Justice Joseph C. Hornblower of New Jersey declared that the lack of a jury trial under the federal law undermined its constitutionality. In 1837 a young Cincinnati lawyer named Salmon P. Chase—who would later be a U.S. senator, governor of Ohio, secretary of the Treasury in the Lincoln administration, and then chief justice of the United States—took on the case of the slave Matilda Lawrence. Lawrence had escaped from Kentucky into Ohio, and her owner claimed her under the Fugitive Slave Act. Chase developed an elaborate attack on the law, claiming that it violated the Fourth Amendment protection against unreasonable search and seizure, the procedural guarantees of the Fifth Amendment’s due process clause, and the protections of jury trial and habeas corpus embodied in the Northwest Ordinance (of which Ohio was originally a part). Although the local court ordered Lawrence handed back to her owner, Chase’s arguments accurately reflected the sentiments of the antislavery community and its opposition to the federal law. They were printed up and received wide circulation throughout the North. At this point it was only a matter of time before the constitutionality of the Fugitive Slave Act and of the personal liberty laws would reach the Supreme Court.
A Maryland farmer named John Ashmore had owned Margaret Morgan’s parents, but sometime before 1812, Ashmore had allowed the two to live in virtual freedom. Although Ashmore never formally manumitted the two slaves, he had on numerous occasions declared he “had set them free.” The two blacks raised their daughter Margaret as a free person. When Ashmore died in 1824 the inventory of his estate listed only two slaves, both young males, and at the time no claim was made by Ashmore’s heirs on either Margaret or her parents. Margaret believed herself to be free, married a free black named Jerry Morgan, and was assumed to be free by most people in the community. In the early 1830s the Morgans, who by then had two children, moved to Pennsylvania, where they had two more children. (No matter what the courts might later determine about Margaret’s status, there should never have been a legal question that her children born in Pennsylvania were free.)
In 1837 Ashmore’s niece and heir hired Edward Prigg, a Maryland farmer, to go into Pennsylvania along with his neighbor, Nathan Beemis (who was Ashmore’s son-in-law), and two other men to capture Margaret Morgan, her husband Jerry, and her children, and to bring them back to the niece, who claimed to be the rightful owner. When the two men arrived in Pennsylvania, they applied to a justice of the peace for a warrant to arrest Margaret Morgan as a fugitive slave. After obtaining the warrant, Prigg arrested Morgan and her children and brought her back to the court in order to obtain a certificate of removal under the 1826 Pennsylvania personal liberty law. Given the circumstances of the family, it is not surprising that the magistrate refused to issue the certificate. At this point Prigg, Beemis, and the two other men forcibly removed Margaret and her children from Pennsylvania. The niece, who apparently wanted their monetary value more than slaves, turned Margaret and her children, including those born in Pennsylvania, over to slave traders, and they were never heard from again.
Prigg and his cohorts were indicted for kidnapping in Pennsylvania by a York County grand jury, but Maryland initially refused to extradite the men, even though the Maryland governor privately conceded they had broken the law. After extensive negotiations between Maryland and Pennsylvania officials, the Pennsylvania legislature passed an act that provided that any of the four defendants could post a thousand-dollar bond until a final decision would be reached. Maryland then handed Prigg over to Pennsylvania authorities for trial, with the assurance that if convicted at a jury trial, he would not be punished until after the Supreme Court had ruled on the matter. As expected, a York County jury found Prigg guilty of kidnapping, and Prigg appealed to the Pennsylvania Supreme Court. Under the terms of the agreement, if this court found in Prigg’s favor, he would be turned loose and the case would be dismissed. By this time, however, officials in Pennsylvania and Maryland, as well as in other states, wanted a ruling on the constitutionality of the Fugitive Slave Act and the personal liberty laws. The Pennsylvania high court issued a short summary judgment affirming the conviction so that the issue could be taken to the U.S. Supreme Court.
Seven justices wrote opinions in Prigg—a majority opinion, five concurrences, and a dissent, which tied it for the most opinions up to that time in any Supreme Court case. By the standards of the nineteenth century this was truly extraordinary. While multiple opinions today are commonplace, they were rare in the antebellum period. After Chief Justice John Marshall abolished the practice of seriatim opinions (in which each justice writes a separate opinion), justices rarely wrote individual opinions except to dissent from the result of the case. The vast majority of decisions were unanimous. In 1832, for example, the Court decided fifty-five cases. Forty-six were unanimous, and eight cases contained a single dissent. In 1842 the Court decided forty-three cases, including Prigg. Thirty-eight contained only a single “opinion of the court.” In four other cases, there were two opinions. This contrasts sharply with the seven opinions in Prigg. In the entire period from 1801 until 1842 no case had more than seven opinions, and only one besides Prigg had that many. That case, Groves v. Slaughter, decided a year before Prigg, also involved slavery.
The many opinions in Prigg, as well as the wide range of those opinions, suggest its importance. Speaking for the Court, in what was understood at the time to be an overwhelmingly proslavery decision, was Joseph Story of Massachusetts, whom many believed to be at least nominally opposed to slavery. Story, in his younger days, had attacked the institution, and even after his appointment to the high court had criticized the African slave trade. But he was also hostile to abolitionists, and while he was against slavery, had never showed any sympathy to the plight of the slaves themselves.
In his opinion for the Court, Story reached four major conclusions, all of which combined to give Southern slaveholders a significant victory. Everyone on the Court except Justice John McLean agreed with the outcome—that Prigg’s conviction was invalid—and with Story’s major points that (1) the Fugitive Slave Act of 1793 was constitutional; (2) state personal liberty laws that interfered with the rights of slave owners under the Constitution were unconstitutional; (3) the Constitution gave masters a common-law right to recapture a fugitive slave without resorting to any legal process, if it could be done without a “breach of the peace”; and (4) no fugitive slave was entitled to any due process hearing or trial beyond a summary proceeding to determine if the person seized was the person described in the affidavit or other papers provided by the claimant.
Although the least surprising of the holdings, it was by no means inevitable that the 1793 law would be found constitutional. Pennsylvania had argued that Congress had no authority to legislate on the subject because it was not one of its powers as enumerated by the Constitution. Although the fugitive slave clause appeared as part of the comity provisions in Article IV (which provided for legal reciprocity among the states), the clause did not directly give Congress specific powers to enforce it. In addition, the 1793 law might also have been invalidated because it violated other parts of the Constitution. It denied free blacks and alleged slaves the rights to a jury trial, habeas corpus, double jeopardy, and other Bill of Rights protections. Although the runaway slaves had not been charged with “crimes,” it would not have been unreasonable for the Court to demand that persons who potentially faced a life of involuntary servitude ought to have at least minimal due process safeguards.
Story’s assertion that exclusive jurisdiction over fugitive slaves lay with the federal government should not have been surprising, given his strong nationalist ideology. In some ways this ran counter to the Southern states’ rights doctrines, but the South welcomed the opinion because it gave strong support for slavery. Pennsylvania’s personal liberty law, like those of other Northern states, encroached upon what Story saw as the exclusive domain of congressional power. Contemporaries as well as historians since have seen Story’s opinion as supporting the system of slavery with the power of the federal government, and putting those who opposed the return of fugitive slaves in the awkward position of following their conscience, and thus seemingly violating not only federal law but the Constitution as well. In fact, Prigg is the first Supreme Court decision to explicitly recognize slavery as a constitutionally protected institution within the Union.
Story’s conclusion that a master had a personal right to recapture his slave without following any more than the most summary judicial procedure was in some ways the most unexpected part of his opinion, since it went much further than the Court had ever gone in dealing with the rights of slave owners, and even further than the case required. Under the fugitive slave clause, Story found “a positive and unqualified recognition of the owner in the slave, unaffected by any state law or regulation whatsoever.” This being the case, “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 know that this right of seizure and recaption is universally acknowledged in all the slaveholding states.” Story then declared that under the comity provisions of Article IV, all other states had to recognize that an owner is clothed with the full legal authority to seize and recapture his property. So long as this recapture did not breach the peace or instigate illegal violence, it required no aid in the form of state or national legislation. By the same token, neither state nor national legislation could impinge on that right. As critics immediately noted, this was an open invitation for the kidnapping of free blacks, since they had no recourse to the courts to prove their status; a slave owner’s declaration that a person was a slave trumped everything else.
Most significantly, Story’s opinion effectively made the law of the South the law of the nation. In the South, race was a presumption of enslaved status, and by giving masters and slave hunters a common-law right of recapture, Story nationalized this presumption. As a result, slave catchers could operate in the North without having to prove the seized person’s enslaved status. The consequences for the nearly 175,000 free blacks in the North were dire. Even if they were not personally threatened with recapture, the anxiety must have been great.
The only controversy among the majority justices centered on the role of the states in the return of fugitive slaves. Justice Story believed that state officials ought to enforce the fugitive slave law by passing implementing legislation authorizing state officials to act in support of slave catchers. But the federal government could not require states to do so. Story, in what was probably the earliest use of the “preemption doctrine,” asserted that because Congress had passed legislation on this subject, the states were preempted from acting in any way contrary to federal policy. This ruling dovetailed with Story’s lifelong goal of nationalizing law and allowing for the development of a federal common law.
Chief Justice Roger B. Taney, while concurring with Story’s general conclusions, nonetheless objected to this portion. Story had in effect said that while states could choose to help enforce the federal law, they did not have to do so. Taney immediately saw the danger in this—namely, that Northern states would refuse any aid to the slave owners or their agents, and could, by refusing to cooperate, effectively nullify the law. The chief justice argued that states were obligated to help enforce the law, and they could and should enact more elaborate legislation to assist in the recapture of runaways.
In dissent, Justice McLean warned that the decision would lead to the enslavement of free blacks. Indeed, Justice Story’s refusal to consider the status of the Pennsylvania-born children of Margaret Morgan illustrates that the dangers set out in McLean’s opinion were far from hypothetical.
The importance of Prigg had been apparent as soon as the Court had announced that it would hear the case. In January 1841, over a year before oral argument, John Quincy Adams—who had become one of the most vocal opponents of slavery—had made two trips to the Court to secure a printed copy of the record so he could study it. The abolitionist leader Theodore Dwight Weld had predicted that “the decision will involve the Constitutionality of the laws of Mass., N.Y., and other northern states. . . . Of course the trial is of immense importance.”
Following the decision on March 1, 1842, newspapers hailed or damned it as a victory for slavery. The conservative New York Herald thought it would “have the most salutary effect in repressing the incendiary movements of the abolitionists, and in quieting the just apprehensions entertained at the South.” William Lloyd Garrison’s Liberator, the most fiery of all the antislavery organs, responded by predicting that the decision would “treble the present number of abolitionists and serve to raise their zeal to a pitch, and that will not exactly quiet the apprehensions of the South.”
Story doubtless hoped that his opinion would reduce sectional tensions and give the South a greater sense of security in the nation. This goal, however, backfired. Prigg failed to settle the issue because of strong public sentiment against it in the North. This opposition manifested itself in Boston later in 1842, in the case of a runaway slave named George Latimer. Initially, Latimer was confined in the local jail while his owner, James B. Gray, waited for proper documentation of Latimer’s status to arrive from Virginia. Abolitionists appealed to Chief Justice Shaw for a writ of habeas corpus, but Shaw refused, claiming that Latimer was legitimately held under the Fugitive Slave Act of 1793. Local abolitionists, however, convinced the county sheriff that he could not hold a slave in a Massachusetts jail. Faced with the prospect of trying to keep Latimer in a Boston hotel, Gray agreed to sell Latimer—for far less than the slave was worth—to agents of his defense committee, who immediately freed him.
The most common reaction in the North was, as Taney had feared, seizure upon Story’s dictum that states did not have to take positive steps to implement the law. Massachusetts, Vermont, Connecticut, New Hampshire, Pennsylvania, and Rhode Island all enacted legislation prohibiting state officials from enforcing the federal statute. Ohio repealed a statute that had required state officials to enforce the law. Although a Democratic governor of New York urged the assembly to repeal the state personal liberty law since it was unconstitutional after Prigg, the legislature refused to do so, and the New York law remained in force until the Civil War.
Northern legislatures, in fact, took Story’s comments literally—namely, that while they could enforce the federal law, they did not have to, and in fact could direct state officers not to participate in abetting the slave catchers. In 1843, Massachusetts passed the “Latimer Law,” which prohibited the use of any state facility for holding a fugitive slave and prohibited all state employees from participating in the return of a slave. Even more important, the Latimer incident highlighted the growing dilemma for abolitionists and lawyers between obedience to law and adherence to what many perceived as a higher moral duty. The moral repugnance of slavery led the abolitionists, especially the more radical followers of William Lloyd Garrison, to mount an outright attack on the Constitution and on those federal and state laws that enforced its slavery provisions. A majority of lawyers and judges, however, opted for obedience to the law, taking refuge in strict adherence to the letter of the state statute. This formalistic view permitted some of them to find, in the absence of positive state law upholding slavery, the means to free some individual fugitives. Most, however, even when pronouncing their personal opposition to slavery, argued that they could not prevent the return of blacks to their owners until the laws had been changed.
Even without legislation, antislavery judges and lawyers found Prigg a useful tool for opposing the rendition of fugitive slaves. State judges could declare that they had no authority to hear cases involving fugitives, and to suggest that claimants seek a remedy in federal court, even though the nearest federal court might be hundreds of miles away or not even in session. The slave, of course, could be returned to the South under the self-help rule—that is, capture by the owner or a slave catcher—but without access to jails and aid from local officials, it could be difficult or impossible for an owner to bring his property back home.
The growing creativity of Northern opponents of slavery made it increasingly hard for Southerners to capture runaway slaves, as the Latimer incident showed. Abolitionists across the North created the “underground railroad,” which helped escaped bondsmen get to Canada, where they were beyond the reach of American law. The growing tensions between North and South over issues such as the slave trade and the existence of slavery in the western territories nearly led to the rupture of the Union in early 1850. An aging Henry Clay, who had forged the Missouri Compromise of 1820, helped broker another agreement to keep the Union together, one that included a new Fugitive Slave Act.
The 1850 law was a supplement to the original 1793 act rather than a replacement for it, and it immediately inflamed the North—with good reason. The new statute completely favored the slave catcher or owner and denied the alleged runaway even minimal recourse to due process. Under this law owners or professional slave catchers could seize a black person without a warrant; once in custody, the slave catcher could secure a rendition certificate, either from a federal judge or a new class of commissioners named by the federal courts; the alleged slave could not testify on his own behalf; no legal process, including habeas corpus, could interfere with returning a captured slave; an alleged slave was not allowed to test his freedom, or even his identity, before a jury; federal marshals and commissioners could form a posse, asking all “good citizens” to help catch a runaway slave; and obstruction of the law, or rescue of a runaway, could be punished by a fine of $1,000 and six months in jail.
A Georgia convention declared that “upon the faithful execution of the Fugitive Slave Bill by the proper authorities, depends the preservation of our Union,” and in 1860–1861 a number of Southern states would cite the failure of the North to obey this law as a reason for secession. On the other hand, Rep. George W. Julian of Indiana spoke for many Northerners when he declared that “a more heartless and cold-blooded” law had “never disgraced the legislation of a civilized people.”
The terrible one-sidedness of the law gave abolitionists one of their greatest propaganda weapons. Denouncing “this filthy enactment,” the essayist and poet Ralph Waldo Emerson urged his neighbors to break it “on the earliest occasion.” Clergymen across the North echoed these sentiments, and many Northerners needed little encouragement. Yet, despite this public opposition, there was little interference with the law, and few successful rescues of fugitives who were seized under the law. Between 1850 and 1860 at least 366 fugitive slaves were returned to the South while only 23 were either rescued or escaped from federal custody. These rescues, however, and subsequent escapes gained the headlines and gave the impression of massive Northern resistance to the law. Moreover, vigilance committees formed by free blacks, fugitive slaves, and their white allies made enforcement dangerous or impossible in many places in the North. Southerners estimated that there were at least 10,000 fugitive slaves in the North, and thus a return of fewer than 400 suggests that the law worked poorly. Many Northerners would have agreed. The great black abolitionist Frederick Douglass noted in his memoirs that after the successful “Jerry rescue” in Syracuse, New York, in 1851, the law was a “dead letter” throughout upstate New York. In that incident, a mob, which included the mayor and the city’s leading minister, removed the fugitive slave Jerry McHenry from the custody of a U.S. marshal. Abolitionists later successfully took McHenry to Canada.
The Fugitive Slave Act had its greatest impact, one evidently unforeseen by the South, in spreading revulsion against slavery throughout the North, and in politicizing Northerners who had previously ignored the issue of slavery. Both moral and legal considerations governed the views of many Northerners. When Sen. William H. Seward of New York attacked the 1850 compromise, he declared, “There is a higher law than the Constitution!” That phrase became the allying cry for opposition to the Fugitive Slave Act.
The act led to a variety of legal responses. The Chicago City Council passed a resolution declaring the law null and void. The Ohio legislature passed a resolution holding the act unconstitutional because Congress lacked the power to pass such a law and because it violated the Bill of Rights. Initially, the states took a wait-and-see attitude toward the law. Between 1854 and 1858, however, in response to both increasingly vigorous federal enforcement and the Kansas-Nebraska Act of 1854, all six of the New England states, as well as Ohio, Michigan, and Wisconsin, passed new personal liberty laws. Most of these states also closed their jails to slave catchers. In 1855, Massachusetts passed the most radical and comprehensive of these new personal liberty laws, which gave runaway slaves the right to appointed counsel, jury trials, habeas corpus, and even the writ of personal replevin, an old procedural device to free a person from prison or from the custody of another. The law also prohibited any lawyer in the state from representing a slave owner and any state official from acting under the law. Since most of the federal commissioners in Massachusetts were also state officeholders and lawyers, enforcing the federal law could cost them their regular jobs, as well as their right to practice law.
Prigg, like Dred Scott, can be seen as an effort by the courts to resolve the growing tension between North and South over the issue of slavery. Justice Story in Prigg, and Chief Justice Taney in Dred Scott, both underestimated the growing revulsion against slavery in the North and the almost hysterical demand in the South that the full power of the federal government be brought to bear to protect the “peculiar institution.” In the end, it took a war to finally resolve the question of slavery.
Commonwealth v. Aves, 35 Mass. 193 (1836)
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)
Groves v. Slaughter, 40 U.S. (15 Pet.) 449 (1841)
Lemmon v. The People, 20 N.Y. 562 (1860)
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
Prigg v. Pennsylvania, 41 U.S. (16 Peters) 539 (1842)
Roberts v. City of Boston, 59 Mass. 198 (1850)
The literature on American slavery is immense and growing. For good overviews, see Kenneth M. Stampp, The Peculiar Institution (1956), and Ira Berlin, Generations of Captivity: A History of African-American Slaves (2003). Similarly, the scholarship on slavery and the law is also burgeoning. Paul Finkelman, Slavery in the Courtroom (1985), and Mark V. Tushnet, The American Law of Slavery, 1810–1860 (1981), are very useful. For the Prigg case, see Finkelman, “Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story’s Nationalism,” 1994 Supreme Court Review 247 (1995), and for a broader context, his An Imperfect Union: Slavery, Freedom, and Comity (1981). For fugitive slaves, see John Hope Franklin and Loren Scheninger, Runaway Slaves: Rebels on the Plantation (1999), and for Northern law, see Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North (1974). The complexities of the 1850 compromise are examined in Holman Hamilton, Prologue to Conflict: The Crisis and Compromise of 1850 (1964).