The Prigg case has always been overshadowed by Dred Scott, yet in many ways, it was of equal importance. Edward Prigg had conspired with his neighbors to return a runaway slave and her children to her purported master in Maryland. Pennsylvania's law required a certificate from a magistrate to remove a slave to be sure that it was indeed a slave. In this case they were unable to get a certificate because there was doubt whether the woman was indeed enslaved. The woman, Margaret Morgan, was considered to be free by the community and had been living as such for many years. Indeed, she had been listed as a free black in the 1830 census. Her children had been born in Pennsylvania and were therefore free under Pennsylvania law.
Prigg and his companions seized the entire family and took them to Maryland after they were denied a certificate by a York County magistrate. They were charged with kidnapping but Maryland refused to extradite the conspirators. His conviction was upheld by the Pennsylvania Supreme Court, but he appealed to the U.S. Supreme Court arguing that Pennsylvania law was unconstitutional given the Fugitive Slave Law of 1793.
The opinion by Justice Story overturned Prigg’s conviction, It (1) upheld the constitutionality of the 1793 Fugitive Slave Law; (2) struck down Pennsylvania’s 1826 “personal liberty law,” and by implication all similar laws in other states; (3) declared that no state could pass any law that interfered with or supplemented the federal Fugitive Slave Law; (4) declared that masters or their agents had a common law right recapture their runaway slaves, without fulfilling any of the requirements of the federal Fugitive Slave Law; and (5) asserted that every state was morally obligated to help enforce the federal Fugitive Slave Law of 1793, but that Congress lacked the power to require the states to do so.
The decision was unusual in that it was not unanimous. There were multiple concurring opinions, most notably Chief Justice Taney, but only one dissent, Justice McLean. (He also dissented in the infamous Dred Scott decision.) It was clearly a strong pro-slavery opinion from a Justice who heretofore had been considered to be anti-slavery.
The Prigg decision came to be overshadowed by Dred Scott, which had political ramifications, but Prigg would have been much more famous for its judicial implications. Two aspects of Story’s opinion touch on thoroughly modem constitutional issues: preemption and unfunded mandates. Story argued that the 1793 statute gave the federal government authority over state actions and said that since it was an interstate action, even in the absence of a federal law, federal would preempt state. (Whether the federal government would have enforced a non-existent statute to return slaves to the south, was another issue; Jackson was president at the time who probably would have, but JQ Adams, Jackson’s predecessor, most notably, would not have.)
Story also held that in the absence of the 1793 law, Article IV, Section 2 would take precedent over state law making the Fugitive Slave Clause, as that section is known, self-executing. *
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.
Story also ruled that while the 1793 Act provided for federal jurisdiction, it could not force the states to enforce it, i.e. it was an unfunded mandate. This provided an excuse for northern states to ignore the 1793 Act ** creating pressure for the new Fugitive Slave Law of 1850, which made the federal government responsible for enforcement providing for a federal commissioner in every county in the United States. The pro-slavery states triumphed once again in the guise of Story’s constitutional nationalism. Even though he abhorred slavery, he believed that the national Constitution provided national guarantees. That his decision resulted in the 1850 law and that he provided a mechanism for its enforcement (federal commissioners) and Dred Scott is another of history’s ironies and unintended consequences.
*Article IV, Sec. 2 of the Constitution
A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.
** For example, “Latimer Law” passed in Massachusetts forbade the use of state facilities in fugitive slave cases. Other states passed similar acts, and many state judges refused, on their own, to hear cases under 1793 law.
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