Prigg v. Pennsylvania
(1842) 41 U.S. 539
Prigg was convicted in the state court of Pennsylvania,
affirmed on appeal to the State Supreme Court, of the felony of attempting to
carry away from the State by violence a certain Negro woman. The Negro woman,
Margaret Morgan was a slave for life, and held to service under the laws of Maryland, to a certain Margaret Ashmore, a citizen of Maryland. She had escaped and fled
from Maryland to Pennsylvania, in 1832. Prigg, the agent of Ashmore, in 1837,
caused Morgan to be taken from Pennsylvania back to Maryland and returned to
Ashmore. Prigg appeals his conviction under Pennsylvania law to the United
States Supreme Court.
Issue to be
Is the statute of Pennsylvania constitutional
Mr. Justice Story delivered the opinion o f the Court.
provision of the Constitution at issue is, "No person held to service in
one State under the law thereof, escaping into another, shall in consequence of
any law therein, be discharged from such service; but shall be delivered up, on
claim of the party in whom such service may be due." It is well known that
the object of this clause was to secure to the citizens I of the slave states
the complete title of ownership in their slaves as property, in every state in
the Union into which they might escape. The full recognition of this title was
indispensible to the security of this species of property; and indeed was so
vital to the preservation of the domestic interests of the slave states, that
it cannot be doubted that it constituted a fundamental article, without the
adoption of which the Union could not have been formed.
The clause's true design was to guard against the doctrines
prevalent in the free states, by preventing them from obstructing, or
abolishing the rights of the owners of slaves.
By the general law of nations, no nation is bound to
recognize the state of slavery, as to foreign slaves found within its
territorial dominions, when it is in opposition to its own policy and
insitutions. If the nation does recognize the state of slavery as to such
persons, it is as a matter of comity, and not as a matter of intenational
The state of slavery is deemed to be a mere municipal
regulation, founded upon and limited in range of the territoral laws. It is
manifest that if the Constitution did not have this clause, every free state in the Union would be at liberty to have declared free runaway slaves coming
within its limits. The clause, therefore, was of the last importance to the
slave states and adopted into the Constitution by the unanamious consent of the
framers to it; a proof at once of its intrinsic and practical necessity.
The clause manifestly contemplates the existence of a
positive, unqualified right on the part of the slave owner, which no state law
or regulation can in any way qualify, regulate, control, or restrain. The owner
therefore must have the right to seize and repossess the slave, which the local
laws of his own state confer upon him as property. Upon this ground we have not
the slightest hesitation in holding that, under 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.
If the clause had stopped at the mere recognition of the
right, without providing any means by which the right might be enforced, it is
plain that the right would be a delusive and empty annunciation. This leads to
the consideration of the part of the clause which implies at once a guaranty
and duty. It says, "But the slave shall be delivered up on claim of the
party to whom such service may be due." This reference to
"claim" necessarily involves the procedure of the State courts, and
thus implies the requirement that the states aid, by means of legislation, the
enforcement of the right. Naturally, then, the Federal Government is clothed
with the authority to and functions to enforce it.
The clause does not require state action, it imposes no
obligation on the state to provide means to enforce the slave owner's claim.
As early as 1791, the Congress recognized this and passed legislation providing
for the claim to be made in the Federal District Court where the slave resided
and was found and seized. We hold the congressional act providing for the claim
to be processed in the federal courts is constitutional.
Under the Constitution the right to recover one's slave is
an absolute, positive, right and duty, pervading the whole Union with an equal
and supreme force, uncontrolled and uncontrollable by state sovereignty or
state legislation. It is a new and positive right, independent of comity,
confined to no territorial limits, and bounded by no state institutions or
policy. The natural deduction from this is that the matter of enforcement
belongs to the legislative department of the national government, to which it
owes its origin and establishment. It would be a strange anamaly to suppose
that the national government mean to rely for the fulfillment of its own proper
duties and the rights which it intended to secure, upon state legislation; and
not upon that of the Union.
To guard against any possible misconstruction of our views,
however, it is proper to state that we are by no means to be understood in any
manner whatsoever to doubt or interfere with the police power belonging
to the states in virtue of their general sovereignty. The police power extends
over all subjects within the territorial limits of the states; and has never
been conceded to the United States. The police power is designed for the
protection, safety and peace of the state, and may be used to arrest and
restrain runaway slaves. But such use of the power can not be permitted to
interfere with or to obstruct the just rights of the owner to reclaim his
slave, derived from the Constitution of the United States.
Mr. Justice Wayne concurs:
All the justices agree that the provision of the
Constitution at issue was a compromise between the slave and free states, to
secure to the former fugitive slaves as property.
it be remembered that the men who formed the Constitution were the
representatives of equal sovereignties. That they were assembled
to form a more perfect union than then existed between the states under the
confederacy. That they cooperated to the same end; but that they were divided
into two parties, having antagonistic interests in respect to slavery.
One of these parties, consisting of several states, required
as a condition, upon which any constitution should be presented to the
states for ratification, a full and perfect security for their slaves
as property. The representatives from the free states assented to the
condition. The provision was proposed and adopted by the unanimous vote of the
convention. It, with an allowance of a certain portion of slaves with the
whites, for representative population in Congress, and the importation of
slaves from abroad were the great obstacles in the way of forming a
constitution. Without all of these provisions being provided for, it was well
understood that the convention would have been dissolved, without a
constitution being formed.
The agreement concerning these provisions was called, in the
convention, a compromise. The provision in respect to fugitive slaves was
called a guarantee of a right of property in fugitive slaves. It was adopted by
all the states, not as merely a guarantee, but a great national engagement, in
which the states surrendered a sovereign right, making it part of
the instrument, which was intended to make them one nation, within the
sphere of the Constitution's action.
It is reasonable to infer, as the states were forming
a government for themselves, to the extent of the powers conceded in the
Constitution, that the framers mean that the right be carried into
execution by the that department in which they were all represented, the
Congress of the United States.
Among nations there is a rule of interpretation that relies
on the discretion of the parties to the obligation, a rule applied to
conventions between nations, in order that justice be done. All civilized
nations have consented to be bound by this rule; and it is a part of the laws
of nations. One of these rules is the maxim that neither one or the other of
the contracting powers has a right to interpret his act at his pleasure. Such
is the rule with respect to the conventions of nations foreign to each other.
It applies with equal necessity and force to states united in one general
government. Especially to states making a provision in respect to
property peculiar to some of them, that the right becomes so interwoven with
their institutions and their representation in the general government of
all of them, that the right must be protected in order to
preserve their separate existence, and to keep up their constitutional
representation in Congress.b
This provision is the only one in the Constitution in which
a security for a particular kind of property is provided; provided too,
expressly against the interference by the states in their sovereign
The framers were engaged in forming a government for
all the states; by concessions of sovereign rights from all, without
impairing the actual sovereignty of any one, except within the sphere of what
was conceded. The free states were bound, when forming a general
government with the other states, under which there was to be a community
of rights and privileges for all citizens in the several states, to
protect that property of their citiznes which was essential to the preservation
of their state constitutions. If this had not been done, all of the property of
the citizens would have been protected in every state, except that which was
the most valuable in some of them. In such a case, the states would have
become members of the Union on unequal terms. For these reasons, the
states cannot legislate on the issue of the claim made by the owner of a slave
that he is a fugitive; it is for Congress alone to legislate.
Chief Justice Roger Taney dissents, Justices Thompson,
Daniel and McLean join him in part.
I concur in the opinion pronounced by the Court that the law
of Pennsylvania, under which Prig was indicted, is unconstitutional and void.
But I do not assent to all the principles contained in the opinion. I think the
free states may assist the slave owner in the recovery of his slave by
Justice McLean writes:
so conflicting, and which so deeply pervaded the elements of society, could be
brought to a reconciled action only by an exercise of exalted patriotism.
Fortunately for the country, this patriotism was not wanting in the convention
and in the states. The danger of discord and ruin was seen, and felt, and
acknowledged; and this led to the formation of the confederacy. The
Constitution, as it is, cannot be said to have imbodied in all its parts, the
peculiar views of any great section of the Union; but it was adopted by a wise
and far-reaching conviction that it was the best which, under the
circumstances, could be devised; and that its imperfections would be lost
sight of, if not forgotten, in the national prosperity and glory which it would
secure. (Justice McLean must be saying this with his tongue in his cheek.)
Edited for brevity, Joe Ryan
Prigg V Pennsylvania Senate dicussion of The Fugitive Slave Clause in May 1862