Story Telling on the Supreme Court: Prigg V Pennsylvania and Justice

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Story Telling on the Supreme Court: Prigg v Pennsylvania and Justice Joseph Story's Judicial Nationalism Author(s): Paul Finkelman and Joseph Story Reviewed work(s): Source: The Supreme Court Review, Vol. 1994 (1994), pp. 247-294 Published by: The University of Chicago Press Stable URL: http://www.jstor.org/stable/3109649 . Accessed: 18/09/2012 10:55

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http://www.jstor.org PAUL FINKELMAN

STORY TELLING ON THE SUPREME COURT: PRIGG v PENNSYLVANIA AND

JUSTICE JOSEPH STORY'S JUDICIAL NATIONALISM

Few scholarsdispute Justice Joseph Story's enormous significance forAmerican law. He was unquestionably"one of our greatest juristsand legal theorists."' His numerousCommentaries on various subjectsbecame fundamental textbooks and referencetools for a generationof lawyersand helpedcreate a nationallegal system. His vastlegal scholarship made him a "one-manWest Publication Company."2As a Harvardprofessor he helpedtrain an important segmentof theantebellum elite bar and, moreover,set the stage

Paul Finkelmanis VisitingAssociate Professor of Law, Chicago-KentCollege of Law. AUTHOR'S NOTE: I thank Raymond O. Arsenault, Bruce Dudley, Charles Geyh, JamesO. Horton,Allison Lindsey,Michael McReynolds,Wayne Moore, SharleenNaka- moto,Emily Van Tassel, and PeterWallenstein for their input on thisarticle, and the staffs of the HarfordCounty Historical Society, the York CountyHistorical Society, the Mary- land Hall of Records,the Maryland Historical Society, and theState Archives of Pennsylva- nia for theirhelp. The researchfor this articlewas partiallyfunded by grantsfrom the National Endowmentfor the Humanities,the AmericanPhilosophical Society, and the HistoryDepartment of VirginiaTech. 1 Kent Newmyer,Supreme Court Justice Joseph Story: Statesman of the Old Republic 282 (Uni- versityof NorthCarolina Press, 1985). This does not,however, make him the most accurate judicial scholar.For a discussionof the weaknessof Story'sscholarship, see Alan Watson, JosephStory and theComity of Errors: A CaseStudy in theConflict of Laws (Universityof Georgia Press, 1992). 2 Newmyer,Justice Joseph Story (cited in note 1).

? 1995 by The Universityof Chicago. All rightsreserved. 0-226-36178-0/95/1994-0006$02.00 247 248 THE SUPREME COURT REVIEW [1994 forthe developmentof seriouslegal educationin America. He is on everyone'sall timehit paradeof SupremeCourt justices.3 Storywas somethingof a "lawyer's"justice, whose opinions,as well as his learnedtreatises, helped revolutionizeAmerican law. Most of his importantopinions involved technical issues of procedure or commerciallaw, ratherthan great issues of statecraft.For betteror worse, he spent most of his career on the bench with ChiefJustice John Marshall, who assignedmost decisions affecting major public policy issues to himself.4After Marshall's death, Storyusually faredno betterwhen it came to writingpolitically importantopinions. In his last decade on the bench, under Chief JusticeRoger B. Taney, Storyoften found himself in the minority on majorpolicy questions,s but was stillchosen to writethe opinion of the courtin major technicalcases, such as Swiftv Tyson,6the mostimportant procedure case of the nineteenthcentury.7 One criticalexception, where Story wrote a majorityopinion on an issue of politicsand statecraft,was Priggv Pennsylvania.8To understandStory, and mid-nineteenth-centurylaw and politics, one has to come to termswith Prigg. This is truewhether one likes Story,9dislikes him,"1 or is simply ambivalentabout him." In comingto termswith Story'sPrigg opinion, we are faced with a

3 A. Leon Higginbotham,An OpenLetter to Clarence Thomasfrom a FederalJudicial Colleague, 140 U Pa L Rev 1007,citing Albert P. Blausteinand Roy M. Mersky,The First One Hundred Justices:Statistical Studies in theSupreme Court of the United States 35-36 (ArchonBooks, 1978). SProfessorDavid Currie's iconoclasticstatement makes the point: "[T]hanks to John Marshall's insistenceon writingeverything himself, the Supreme Court was popularly knownas 'JohnMarshall and the Six Dwarfs.'" David Currie,The Most Insignificant Justice: A PreliminaryInquiry, 50 U Chi L Rev 466, 469 (1983). ' For example,Proprietors of theCharles River Bridge v Proprietorsof theWarren Bridge, 11 Peters(36 US) 420, 581 (1837) (Storydissenting). 6 16 Peters(41 US) 1 (1842). STony Freyer,Harmony and Dissonance:The Swiftand Erie Casesin AmericanFederalism (New York UniversityPress, 1981). WithoutSwift, first year procedureprofessors would be unable to subjectstudents to weeksof understandingthe Erie doctrine. See ErieRailroad Co v Tompkins,304 US 64 (1938). 8 16 Peters(41 US) 539 (1842). 9 ChristopherL. M. Eisgruber,Joseph Story, Slavery, and theNatural Law Foundationsof AmericanConstitutionalism, 55 U Chi L Rev 273 (1988). "0 RobertM. Cover,Justice Accused: Antislavery and theJudicial Process (Yale University Press, 1975); see more recentlyBarbara Holden-Smith,Lords of theLash, Loom, and Law: JusticeStory, Slavery and Priggv Pennsylvania,78 CornellL Rev 1086 (1993). " Newmyer,Justice Joseph Story (cited in note 1). 6] STORY AND SLAVERY 249 case in which an otherwisescholarly, judicious, and apparently humanejurist wrote an opinionthat was intellectuallydishonest, based on inaccuratehistorical analysis, judicially extreme when it need not have been, and inhumanein its immediateresults and in its long-termconsequences. Furthermore, we face an extreme proslaveryopinion written by a man who, at least on the surface, opposed slavery.12Moreover, in lookingat the aftermathof Prigg we findthat either Story, or his filiopietisticson, WilliamWetmore Story,sought to cast the decisionas subtlyantislavery, while the justicehimself was workinghard behind the scenesto help imple- mentthe proslaveryimplications of the decision.13 Story'sprimary goal in Priggwas to enhancethe power in the nationalgovernment. Story was willingto accomplishthis at the expenseof civil liberties,fundamental notions of due process,and acceptedconcepts of antebellumfederalism. In analyzingPrigg it is importantto rememberthat the national- izationof power in the 1840smeant strengthening southern slave- holders and their proslaverynorthern doughface allies.14 Story livedin a Union dominatedby slaveholdingpresidents,is a proslav-

12Holden-Smith, 78 CornellL Rev (citedin note 10), challengesthe conventional wisdom of Story'sopposition to slavery.I thinkit is clear the Storydisliked slavery and foundit morallyoffensive, the way virtuallyall northernersdid. However, this seems to have had littleaffect on his jurisprudenceafter the 1820s. 13See Storyto JohnMacpherson Berrien, April 29, 1842, in JohnMacpherson Berrien Papers, SouthernHistorical Collection, University of North Carolina (hereaftercited as Story to BerrienLetter [cited in note 131),quoted at lengthin James McClellan,Joseph Storyand theAmerican Constitution 262n-63n (Universityof OklahomaPress, 1971). This is discussedat note 23. 14The termwas an insultto describe"northern men with southern principles." In essence, a "doughface"had a face of dough that southernpoliticians shaped as they wished. "Doughface Democrats"were northernDemocrats who voted to supportproslavery posi- tions. 15 By 1842, when Story wrotePrigg, the United States had only had threenorthern presidents-all one-termpresidents-and only two-John Adams and JohnQuincy Ad- ams-had been even mildlyantislavery. Martin Van Buren, althougha New Yorker,was a classic "doughface."Six presidents(Washington, Jefferson, Madison, Monroe, Jackson, and Tyler)-including all fiveantebellum two-term presidents-had been slaveownersdur- ing theirterm of office;Harrison, a nativeof Virginia,had been a slaveownerfor much of his adult life, and only ceased owning slaves when he failed, as territorialgovernor of Indiana, to get Congressto allow slaveryin the old Northwest.On Harrison'sattempts to bringmake slaverylegal in the old Northwest,see Paul Finkelman,Evading the Ordinance: ThePersistence ofBondage in Indianaand Illinois,9 JEarly Republic 21-52 (1989), and Paul Finkelman,Slavery and theNorthwest Ordinance: A Studyin Ambiguity,6 JEarly Republic 343-70 (1986). 250 THE SUPREME COURT REVIEW [1994 ery Supreme Court,16and more oftenthan not a Congresscon- trolledby southernpoliticians." Similarly, states rights in antebel- lum Americaoften meant the right of northern states to freevisiting slaves,18to protectfree blacks fromkidnapping,19 to preventthe extraditionto the South of whites or blacks who helped slaves escape,20and eventhe right of northernersto interferein therendi- tion of fugitiveslaves, if it could be done underthe color of state law.21 Thus, we must not look at Story'snationalizing jurisprudence throughthe lens of a late twentieth-centuryConstitution, withthree Civil War amendments(and variousother amendments and statutes)that allow or obligatethe national government to pro- tectcivil rightsand civil liberties.On the contrary,Story lived in an age when federalpower meant federal support for a proslavery Constitution22implemented by a proslaverynational regime. Story not onlyknew all this,but saw ways thatthe nationalgovernment

16As of 1842, when the Court heardPrigg, 19 of the 29 men appointedto the Supreme Court had been southerners.Cumulatively, up to 1842 southernjustices had serveda total of 209 yearson thecourt, while northerners had servedonly 149 years.From 1800 to 1861, southernersoutnumbered northerners in everyterm, except for the shortperiod from 1830 to 1837. Significantly,the Court heard no majorcases involvingslavery during that period. In 1842, Storyserved on a courtwith five southerners and fournortherners. 17 From 1789 to 1842, therewere 16 northernand 25 southernPresidents Pro Tempore of the Senate; more significantly,from 1801 to 1842, 20 PresidentsPro Tempore were southern,and only 5 were northern.Similarly, before 1801 all 5 Speakersof the House were fromthe North. But from1801 until1842, there were 11 southernSpeakers and only 3 northernspeakers. 18Paul Finkelman,An ImperfectUnion: Slavery, Federalism, and Comity (University of North CarolinaPress, 1981). 19 Thomas D. Morris,Free Men All: The PersonalLiberty Laws of theNorth, 1780-1861 (JohnsHopkins UniversityPress, 1974). 20 Paul Finkelman,States Rights North and Southin AntebellumAmerica, in KermitHall and JamesW. Ely, Jr., eds, An UncertainTradition: Constitutionalism and theHistory of the South 125-58 (Athens,Ga, 1989); Paul Finkelman,The Protection of Black Rights in Seward'sNew York,34 Civ War History211-34 (1988); and Paul Finkelman,States' Rights, Federalism, and CriminalExtradition in AntebellumAmerica: The New York-VirginiaControversy, 1839-1846, in HermannWellenreuther, ed, Germanand American Constitutional Thought: Contexts, Interac- tion,and HistoricalRealities 293-327 (Berg, 1990). 21 See, forexample, In Re Booth,3 Wis 1 (1854); Ex parteBooth, 3 Wis 145 (1854); In re Boothand Rycraft,3 Wis 157 (1855); JenniParrish, The Booth Cases: Final Stepto theCivil War, 29 WillametteL Rev 237 (1993). For an earlierexample, see Norrisv Newton,18 F Cases 322 (CCD Ind, 1850); Paul Finkelman,Fugitive Slaves, Midwestern Racial Tolerance, and theValue ofJustice Delayed, 78 Iowa L Rev 89-141 (1992). 22 Paul Finkelman,Slavery and theConstitutional Convention: Making a Covenantwith Death, in RichardBeeman, StephenBotein, and Edward C. CarterII, eds, BeyondConfederation: Originsof the Constitution and American National Identity 188-225 (Universityof North Caro- lina Press, 1987). On the antislaveryanalysis of the Constitution,see WilliamM. Wiecek, TheSources of Antislavery Constitutionalism, 1760-1848 (CornellUniversity Press, 1977). 6] STORY AND SLAVERY 251 mightuse his Priggopinion to furtherimplement the proslavery aspectsof the Constitution.23 In the end Storyfavored national power over any othervalue, even if it meantstrengthening slavery. His Priggopinion showed indifferenceto the civil libertiesof northernersand to the fateof freeblacks (as well as fugitiveslaves) living in the North. One finalcaveat is in order.It mightbe easy to cast thisanalysis of Storyand his Priggopinion as anachronistic-as tryingto hold Story to the standardsof the late twentiethcentury. In an age whenmost scholars have only recently rediscovered the importance of race forAmerican history, it is importantto understandthat the followinganalysis is not based on our own contemporarynotions of what is eitherimportant or correct.Rather, this analysis begins withthe assumptionthat to understandor criticizePrigg we must view it withinthe context of the mid-nineteenthcentury. In doing so we findthat Story's contemporaries and friendscondemned the opinion, and that the opinion ran counterto the conclusionsof distinguishedstate judges. The factsof the case, contemporary conceptsof justice,and the languageof the Constitutionitself of- feredStory an opportunityto writea differentopinion. That he chose not to do so-that he shapedboth constitutional history and the "facts"of the case to supportand even compel the opinionhe wrote-suggests thathis oppositionto slavery,whatever it might once have been,24had witheredaway to a theoreticalabstraction thatdenied the realityof mid-centuryAmerica. Despite Prigg,it is possibleto remainin awe of Story'sscholarly productivity,his skillsas a mentor,and his significanceas a great

23Shortly after the Court decided Prigg, Story wrote to SenatorJohn Macpherson Berrien of NorthCarolina to discuss a draftbill on federaljurisdiction that he had sentto Berrien. He remindedBerrien that he had suggestedin thatproposed bill thatin all cases,where by theLaws ofthe U. States,powers were conferred on State Magistrates,the same powersmight be exercisedby Commissionersappointed by the Circuit Courts. I was induced to make the provisionthus general,because State Magistratesnow generallyrefuse to act, & cannotbe compelledto act; and the Act of 1793 respectingfugitive slaves confersthe power on State Magistrates to act in deliveringup Slaves. You saw in the case of Prigg... how theduty was evaded, or declined. In conversingwith severalof my Brethrenon the Supreme Court, we all thoughtthat it would be a greatimprovement, & would tendmuch to facilitatethe recaptureof Slaves, if Commissionersof the CircuitCourt were clothedwith like powers. Storyto BerrienLetter (cited in note 13). 24 See Newmyer,Justice Joseph Story (cited in note 1), and Eisgruberon how Story was antislaveryin the beginningof his life. 252 THE SUPREME COURTREVIEW [1994

Supreme Court justice. Prigg,however, forces us to reevaluate Storyand his nationalisticjurisprudence as well as the role of the antebellumcourt in shapingthe politicsof slaverya decade and a halfbefore Dred Scott.25

I. A PROSLAVERYDECISION

In 1837, Nathan S. Beemis,Edward Prigg,and two other men traveledto Pennsylvania,where they seized as fugitiveslaves MargaretMorgan and her children.They thenbrought the blacks back to Marylandwithout first complying with all of the require- mentsof an 1826Pennsylvania law regulatingthe return of fugitive slaves.26 This statute,known as a personalliberty law, required thatanyone removing a blackfrom the stateas a fugitiveslave first obtain a certificateof removalfrom a state judge, justice of the peace, or alderman. The York County prosecutorimmediately sought indictments againstthe four men for kidnapping and failingto followthe Penn- sylvanialaw. Afterprotracted negotiations between Maryland and Pennsylvania,the governor of Marylandagreed to allow the extraditionof one of the fourslave catchers,Edward Prigg. Priggwas subsequentlyconvicted of kidnappingfor removing Margaret Mor- gan and her childrenfrom Pennsylvania without obtaining a certificateof removalfrom a statemagistrate. Prigg appealed to the U.S. SupremeCourt, and in 1842 the Court overturnedhis con- viction. In his Opinion of the Court,Justice Joseph Story reached five majorconclusions: (1) thatthe federalfugitive slave law of 179327 was constitutional;(2) that no state could pass any law adding additionalrequirements to thatlaw whichcould impedethe return of fugitiveslaves; (3) thatthe Constitution provided a commonlaw rightof recaption-a rightof self-help-which allowed a slave-

25 DredScott v Sandford,19 How (60 US) 393 (1857). 26 "An Act to giveeffect to theprovisions of theconstitution of the United Statesrelative to fugitivesfrom labor, forthe protectionof freepeople of color, and to preventKidnap- ping," ch L, PennsylvaniaSession Law, 1826 150 (1826) (hereafterPennsylvania Personal LibertyLaw); on thepassage of theact itself,see WilliamR. Leslie, ThePennsylvania Fugitive Slave Act of 1826, 13 J SouthernHistory 429 (1952), reprintedin Paul Finkelman,ed, 6 Articleson American Slavery: Fugitive Slaves 211 (Garland, 1989). 27 "An Act RespectingFugitives from Justice and PersonsEscaping from the Serviceof Their Masters,"1 Stat 302 (1793) (Hereaftercited as FugitiveSlave Act). 6] STORY AND SLAVERY 253 owner (or an owner'sagent) to seize any fugitiveslave anywhere and bringthat slave back to the masterwithout complying with the provisionsof the federalfugitive slave law, and that no state law could interferewith such a removal;(4) thatstate officials ought to, but could not be requiredto, enforcethe federallaw of 1793; (5) thatno fugitiveslave was entitledto any due processhearing or trialbeyond a summaryproceeding to determineif the person seized was the person describedin the affidavitor otherpapers providedby the claimant.However, a claimantdid not have to complywith even this minimalprocedure if he exerciseda right of commonlaw recaption,under Story's notion of self-help. This sweepingopinion underminedthe securityof freeblacks livingin the North,endangered the libertyof fugitiveslaves who had escapedto freedom,and threatenedthe public peace and stabil- ity of northernsociety. These resultsstemmed from two prongs of Story'sopinion. First, by strikingdown Pennsylvania'sPersonal LibertyLaw, and by extensionthe personalliberty laws of other states,Story leftthe northernstates without the weapons or the legal authorityto preventthe kidnappingof blacks. Second, Story furtherendangered blacks in the Northby assertingthat the Con- stitutiongave a mastera rightof self-help,"to seize and recapture his slave" anywherein the nation regardlessof state or federal statutorylaw.28 Storyclaimed that the fugitiveslave clause "manifestlycontem- plates the existenceof a positive,unqualified right on the part of theowner of the slave,which no statelaw or regulationcan in any way qualify,regulate, control or restrain."'29Story declared: we havenot the slightest hesitation in holding,that under ... the constitution,the owner of a slaveis clothedwith entire authority,in everystate in theUnion, to seizeand recapture his slave,whenever he can do it, withoutany breachof the peaceor anyillegal violence. In thissense, and to thisextent thisclause of the constitution may properly be saidto execute itself,and to requireno aid fromlegislation, state or national.30 This conclusionwas extraordinary.It meantthat any southerner could seize any blackand removethat person to the South without

28Prigg at 613. 29Id at 612. 30Id at 613. 254 THE SUPREME COURT REVIEW [1994

any state interferenceor even a hearingbefore either a state or federalmagistrate. This removalwithout any judicial superinten- dence or theneed to show any proofof theslave's status to anyone was legal as an act of self-help,as long as no "breachof the peace" occurred.One mightpresume that a "breachof the peace" would always occur when a black, especiallya freeone, was seized as a fugitiveslave. However,for both logical and practicalreasons, this was not always the case. In his dissent,Justice McLean pointedout the theoreticalprob- lems of limitingStory's rightof self-helpto instancesin which therewas no breachof the peace. McLean notedthat under Story's opinion, "the relationof masterand slave is not affectedby the laws of the state,to whichthe slave may have fled,and wherehe is found."Thus, McLean reluctantlyconcluded that "[i]f the mas- terhas a rightto seize and removethe slave,without claim, he can commitno breachof the peace, by usingall the forcenecessary to accomplishhis object."31In otherwords, McLean fearedthat under Story's opinion no amount of violence against an alleged slave would be illegal. Using Story'slogic, it would neverbe a breach of thepeace fora masterto takehis slaveby brutalforce, nor could thisforce be considered"illegal violence" as longas it was directed againsta slave or an allegedslave. There was also a practicalproblem. Seizures at nightor in iso- lated areas could be accomplishedwithout anyone observinga breachof the peace. Once a blackwas shackled,intimidated, and perhapsbeaten into submission, travel from the North to the South could be accomplishedwithout any obvious breachof the peace. If state officialscould not stop a white transportinga black in chains, then kidnappingof any black could always be accomplished. Under such a rule anyone,especially children, might be kidnappedand enslaved. Kidnappingsof this sorthad led to the enactmentof Pennsylvania's1826 PersonalLiberty Law.32 By re- quiringstate judicial supervision of fugitiveslave rendition,Penn- sylvaniahoped to preventsuch abuses. But by strikingdown Penn- sylvania'slaw, and by extensionsimilar laws in otherstates, Story

31 Id at 668 (McLean dissenting). 32 Leslie, 13 J SouthernHistory at 429 (citedin note 26). Leslie notesthat shortly before the adoptionof this law, fiveblack childrenwere kidnappedin Philadelphiaand sold as slaves. Three were eventuallyreturned to theirfamilies, but two died. 6] STORY AND SLAVERY 255 leftthe Northpowerless to preventthis type of kidnapping.More- over, by decidingthat masters had a rightof self-help,Story allowed whitesto seize any blacks and bringthem south without any proofof theirstatus as slaves. Story'sopinion effectively made the law of the South the law of the nation.In the South, race was a presumptionof slave status,33 and by givingmasters and slave huntersa commonlaw rightof recaption,Story nationalized this presumption.As a result,slave catcherscould operatein the North withouthaving to prove the seized person's slave status. The consequences for the nearly 175,000free blacks in the Northcould have been dire. In Prigg,Justice Story shaped both the historyof the Constitu- tion, relevantprecedents, and the factsof the case to justifyhis opinion. He created a mythologicalorigin of the fugitiveslave clause thatlegitimized his harshinterpretation of it. He misstated the existingcase law, or ignoredit, to bolsterhis opinion. Simi- larly,he ignoredor misstatedimportant facts about Margaret Mor- gan and her childrenthat might have compelleda differentresult in the case. These were the storiesthe justicefrom Massachusetts told. By examiningthese tales, we see therewere viable alternatives to Story'ssweeping opinion upholding the 1793Fugitive Slave Law and simultaneouslystriking down Pennsylvania's1826 Personal LibertyLaw.

II. THE FIRST STORY: THE FUGITIVE SLAVE CLAUSE AND THE BARGAIN OF 1787

Aftersummarizing its proceduralhistory, Story acknowledged the importanceof the case. "Few questionswhich have ever come beforethis Court" he wrote"involve more delicate and im- portantconsiderations; and fewupon whichthe public at largemay be presumedto feela moreprofound and pervadinginterest."34 For Story the greatestdanger of this constitutionalminefield was its potentialfor disruption of the Union. His lifetimegoal as a jurist, scholar,teacher, and politicianwas to preservenational harmony and to strengthenthe nationalgovernment. In Prigg he could accomplishboth goals if he could give the

" See generally,Paul Finkelman,The Crime of Color, 67 TulaneL Rev2063 (1993). 34Prigg at 610. 256 THE SUPREME COURT REVIEW [1994

Southa resultit wantedand somehowconvince the North that the Constitutiondictated this result.The resultwas a creative,but historicallyinaccurate, original intent analysis of the Constitution's FugitiveSlave Clause.

A. STORY'S HISTORY OF THE FUGITIVE SLAVE CLAUSE

Storyhoped to persuadethe Norththat his opinionwas correct by elevatingthe FugitiveSlave Clause to a matterof the highest constitutionalorder. To do this,he made two importanthistorical arguments.First, he assertedthat the FugitiveSlave Clause was centralto the compromisesover slavery necessary for the adoption ofthe Constitution. Second, Storyargued that this was well understood duringthe debates over ratification.In fact,both of these argumentsare historicallysuspect. But, beforeconsidering what actuallyhappened at the Conventionand duringthe ratification process,it is necessaryto examineStory's arguments. 1. Story'shistory of the drafting of the clause. With a toneof authority Storywrote: Historically,itis wellknown, that the object of this clause was to secureto thecitizens of the slaveholding states the complete rightand title of ownership in their slaves, as property,inevery statein theUnion into which they might escape from the state wherethey were held in servitude.The fullrecognition ofthis rightand title was indispensableto thesecurity of this species of propertyin all theslaveholding states; and, indeed, was so vitalto thepreservation oftheir domestic interests and institutions,that it cannot be doubtedthat it constituted a fundamentalarticle, without the adoption of which the Union could not havebeen formed.35 He thenelaborated on this argument.He comparedthe Fugitive Slave Clause to the Three-FifthsClause and the protectionof the Africanslave tradeas one of thefundamental bargains over slavery at the Convention.Story argued that at the Convention"several" of the states"required as a condition,upon whichany constitution shouldbe presentedto the statesfor ratification, a full and perfect securityfor their slaves as property,when they fled into any of the statesof the Union.""''36He assertedthat the southerndemand

3 Id at 611. 36Id at 638-39. 6] STORY AND SLAVERY 257 fora FugitiveSlave Clause, along "withan allowanceof a certain portionof slaves withthe whites,for representative population in Congress,and theimportation of slavesfrom abroad, for a number of years;were the greatobstacles in theway of forminga constitution.""37The compromiseson these issues, Story asserted,were centralto the constitutionalbargain, and "withoutall of them... it was well understood,that the Conventionwould have been dis- solved,without a constitutionbeing formed.""38 Story offered this, notas interpretation,but as inconvertiblefact: "I mentionthe facts as they were. They cannot be denied. . . . I am satisfiedwith whatwas done; and reverethe men and theirmotives for insisting, politically,upon what was done. When the threepoints relating to slaves had been accomplished,every impediment in the way of forminga constitutionwas removed."39Thus, accordingto Story's history,the FugitiveSlave Clause was bothessential to the writing of the Constitutionand the workof men who Story"revere[d]." 2. Story'shistory of ratification. Tied to his historyof the Conven- tion was Story's brieferhistory of ratification.First he asserted thatthe "provisionin respectto fugitivesfrom service or labour" was "a guaranteeof a rightof propertyin fugitiveslaves, wherever theymight be foundin the Union." This simplestatement seemed to precludeany analysisthat might have led to a moresubtle and complexinterpretation of theclause. Then Storyasserted that this was well understoodat the timeof ratification.

The Constitutionwas presented to the states for adoption, with the understandingthat the provisionsin it relatingto slaves werea compromiseand guarantee;and withsuch an under- standingin everystate, it was adoptedby all of them.Not a guaranteemerely in theprofessional acceptation of theword, but a greatnational engagement, in whichthe states surren- dereda sovereignright, making it a partof thatinstrument, whichwas intended to make them one nation, within the sphere ofits action."

3. The implicationsof Story'shistory. These arguments-thatthe FugitiveSlave Clause was "a fundamentalarticle" of constitutional

37Id. 38Id. 39Id. 4oId at 638-39. 258 THE SUPREME COURT REVIEW [1994 compromiseand thatthis was well knownduring the ratification struggle-setthe stagefor the rest of Story'sopinion. If the clause was indeedfundamental, then perhaps it requiredextraordinary- and exclusive-enforcementby the federalgovernment. Thus Storycontinued and extendedhis originalintent analysis to assert thatthe framersmust have intendednot only federalenforcement of the clause, but exclusivefederal jurisdiction. Story argued that ifthe clause allowed statelegislation on the subject,"Theright" of the masterto capturea runawayslave "would never,in a practical sense be the same in all the states. It would have no unity of purpose,or uniformityof operation.The dutymight be enforced in some states;retarded, or limitedin others;and denied, as com- pulsoryin many,if not in all.""41Story argued that "It is scarcely conceivablethat the slaveholdingstates would have been satisfied with leaving to the legislationof the non-slaveholdingstates, a power of regulation,in the absence of that of Congress, which would or mightpractically amount to a powerto destroythe rights of the owner."4 If Congressdid not have exclusivejurisdiction, theneach statewould have thepower "to dole out itsown remedial justice,or withholdit at itspleasure and accordingto itsown views of policyand expediency."43This, Storybelieved, could not have been in the intentionsof the framers. Story'sargument about the historic importance of theclause and the intentionsof its framersdeviated somewhat from his analysis of a decade earlier.In Commentarieson the Constitution ofthe United States44he had asserted-erroneously-that the Conventionhad consideredthe clause necessarybecause the lack "of such a provision under the [Articlesof] confederationwas felt,as a grievous inconvenienceby the slave-holdingstates, since in manystates no aid whatsoeverwould be allowed to the masters;and sometimes indeedthey met withopen resistance."4sThere was littletruth to this position.In 1787 no state preventedsouthern masters from recoveringrunaways. But when writinghis Commentaries,Story

41 Id at 624. 42 Id. 43 Id. & 4 JosephStory, Commentaries on the Constitution ofthe United States (Hilliard, Gray Co., 1833). 45Id at ? 952. 6] STORY AND SLAVERY 259 had not consideredthe clause a key partof the constitutionalbargain. In the Commentaries,he noted only that the clause was a boon "for the benefitof the slaveholdingstates" to indicatenorthern good will towardthe "peculiar interests of the south."' He thought the clause was evidencethat the South "at all timeshad its full share of benefitsfrom the Union."47Significantly, Story did not argue in Commentariesthat the clause was partof a bargain,was a quid pro quo for somethingin the Constitutionthat the North wanted."4Nor did he argue thatit was a "a fundamentalarticle, withoutthe adoption of which the jSnion could not have been formed."49

B. THE REAL HISTORY OF THE FUGITIVE SLAVE CLAUSE

Story'sassertion that the clause was an essentialelement of the constitutionalbargain of 1787, and that it was equivalentto the three-fifthscompromise or the slave trade compromise,was his first"story" in thePrigg decision. It was a strongargument in favor of his proslaveryopinion, but it was also an argumentthat did not comportwith the available evidencefrom Madison's Notesof the FederalConvention.5so Late in theConstitutional Convention, Pierce Butler and Charles Pinckneyof South Carolina proposedthat a fugitiveslave clause be added to the articlerequiring the interstateextradition of fugitives fromjustice. James Wilson of Pennsylvaniaobjected to the juxtapositionbecause "This would obligethe Executive of the State to do it, at the public expence." Butlerdiscreetly "withdrew his propositionin orderthat some particularprovision might be made apartfrom this article." A day laterthe Convention, without debate or formalvote, adopted the fugitiveslave provisionas a separate

46Id. 47 Id.

4 Withoutany evidenceto supporthis position,Mr. JonathanMeredith, counsel for Prigg,argued before the Supreme Court that "it is wellknown" that "the fugitive slave clausewas the result of mutual concessions in referencetothe whole subject of slavery. On theone hand the south agreed to confer upon Congress the power to prohibit the importation ofslaves after the year 1808. On theother, the north agreed to recognise[sic] and protect theexisting institutions ofthe south." Prigg at 565. 49 Id at 611. soSee note48 supra. 260 THE SUPREME COURT REVIEW [1994 article of the draft constitution.s5Eventually the two clauses emergedas succeedingparagraphs in ArticleIV, Section 2 of the Constitution.52 The paucityof debateover the FugitiveSlave Clause is remark- able because by the end of August 1787, when the Convention adoptedthe clause, slaveryhad emergedas one of the majorstum- blingblocks to a strongerunion. While morally offensive to a number of the northerndelegates, some southernersdefended slavery withan analysisthat anticipated the "positivegood" argumentsof the antebellumperiod. Nevertheless,unlike the debates over the slave trade,the Three-FifthsClause, the taxationof exports,and the regulationof commerce,the proposal for a fugitiveslave clause generatedno seriousopposition.53 Story made much of this. He notedthat the clause "was proposedand adoptedby theunanimous vote of the Convention."s4This unanimityshould have alerted Story to the relativeunimportance of the clause. Every other slavery-relatedclause at the Conventionled notonly to debate but opposition. Story's elevationof the importanceof the Fugitive Slave Clause is not supportedby the Conventiondebates. Some of the longestand most acrimoniousdebates at the Convention occurredover the Three-FifthsClause and the slave trade provision. On theother hand, the Convention delegates barely discussed the FugitiveSlave Clause, not because therewas generallyagree- menton whatthe clause meantor on its necessity,but morelikely because thenorthern delegates simply failed to appreciatethe legal problemsand moraldilemmas that the renditionof fugitiveslaves would pose. The relationshipbetween slavery and theConstitution generated

" The onlyother response to Butler'sproposal was RogerSherman's sarcastic observation thathe "saw no morepropriety in the public seizingand surrenderinga slave or servant, thana horse."Max Farrand,ed, 2 TheRecords of the Federal Convention of1787 (Yale University Press, 1966)443, quotationsat 45 3-54. The historyof thisclause is discussedin Finkelman, Slaveryand theConstitutional Convention at 219-24 (cited in note 22). See also William M. Wiecek, The Witchat theChristening: Slavery and theConstitution's Origins, in Leonard W. Levy and Dennis J. Mahoney,eds, 167-84 TheFraming and Ratificationof theConstitution (Macmillan,1987). 52 The clause reads: "No personheld to Serviceor Labour in one State, under the Laws thereof,escaping into another, shall, in Consequenceof any Law or Regulationtherein, be dischargedfrom such Serviceor Labour, but shall be deliveredup on Claim of the Party to whom such Serviceor Labour may be due." " Finkelman,Slavery and theConstitutional Convention at 219-24 (cited in note 22). 4 Priggat 638-39. 6] STORY AND SLAVERY 261 a greatdeal of debate duringthe ratificationstruggle. Northerners objectedto theThree-Fifths Clause and themigration and importa- tionclause, whichprevented Congress from ending the slave trade before 1808. Some of this debate was extremelyemotional and vivid. For example, "A Countrymanfrom Dutchess County" thoughtthat Americansmight become "a happy and respectable people" if the Constitutionwere "correctedby a substantialbill of rights"and, among otherchanges, the stateswere forcedinto "relinquishingevery idea ofdrenching the bowels of Africain gore, forthe sake of enslavingits free-borninnocent inhabitants."ss55 In the New HampshireConvention Joshua Atherton complained:

The ideathat strikes those, who are opposed to thisclause, so disagreeablyand so forcibly,is, herebyit is conceived(if we ratifythe Constitution) that we becomeconsenters to, and partakersin, the sin and guilt of this abominable traffic .... We do notthink ourselves under any obligation to perform worksof supererogation in the reformation ofmankind; we do notesteem ourselves under any necessity to go to Spainor Italy to suppressthe inquisition of thosecountries; or of makinga journeyto theCarolinas to abolishthe detestable custom of enslavingthe Africans; but, sir, we willnot lend the aid ofour ratificationto thiscruel and inhumanmerchandise, not even fora day. Thereis a greatdistinction in nottaking a partin the mostbarbarous violation of the sacredlaws of God and humanity,and our becomingguaranties for its exercise for a termof years.56

Similarly,"A Friendof the Rightsof People" asked,"Can we then hold up our hands for a Constitutionthat licences this bloody practice?Can we who have foughtso hard for Libertygive our consentto have it takenaway fromothers? May the powersabove forbid."'57 Yet, despitethe vigorous attacks on theslave tradeprovision and complaintsabout the Three-FifthsClause, no antifederalistsseem

55 "Lettersfrom a Countrymanfrom Dutchess County" (letter of Jan 22, 1788),in Herbert Storing,ed, 6 TheComplete Anti-federalist 62 (University of Chicago Press, 1981). 56 Fragmentof Debate at New HampshireConvention, in JonathanElliot, ed, 2 The Debatesin theSeveral State Conventions on theAdoption of the Federal Constitution 203-04 (J.B. Lippincott,1881). 57 "A Friendto the Rightsof the People," in Storing,4 TheComplete Anti-federalist (cited in note 55), 234, 241. 262 THE SUPREME COURT REVIEW [1994 to have publiclydiscussed the fugitiveslave provision.s8They did not see it as obligatingeither themselves, or the federalgovernment,to become involvedin the dirtybusiness of capturingrun- away slaves. The authorsof TheFederalist discussed the three-fifths provisionand the slave trade, but ignored the Fugitive Slave Clause.59Contrary to Story'stelling, if the FugitiveSlave Clause was an importantprovision of the Constitution,few in the North, on eitherside of the ratificationdebate, seemedto noticeit. In the South,supporters of the Constitution pointed to theFugi- tive Slave Clause as a boon to theirinterests, but not as eithera majorcomponent of theconstitutional bargain or as somethingthat would lead to federalenforcement. In the VirginiaRatifying Convention, for example, the antifed- eralist George Mason complained that the Constitutionmight threatenslavery. James Madison repliedby defendingthe various clauses thatprotected slavery. He assertedthat the FugitiveSlave Clause "was expresslyinserted to enableowners of slaves to reclaim them."60Madison noted thatunder the Articlesof Confederation if a slave escaped to a freestate "he becomesemancipated by their laws. For the law of the Statesare uncharitableto one anotherin this respect."But underthe FugitiveSlave Clause this could not and thiswas "a better than thatnow happen, security any exists.'"61 Had Madison believedthe clause guaranteedfederal enforcement, he probablywould have made this point because it would have

58 The only northernopposition to thisclause thatI have encounteredis foundin corre- spondencefrom and to the Rhode Island merchantand Quaker abolitionistMoses Brown. In privatecorrespondence, Brown expressedconcern that the FugitiveSlave Clause was "designdto Distroythe Present Assylum of the Massachusets from being as a Cityof Refuge forthe poor Blacks, manyof whom had resortedthere on Acc[oun]tof theirConstitution or Bill of rightsdeclaring in the firstArticle 'That all men are born free& Equal &c.' and therebeing no Laws in that State to supportslavery, the Negroes on Enteringthat state are as freeas they are on Enteringinto Great Brittainand the southernpeople have not been able by Applycationof the Governour,Judges or otherAuthority to Recoverthose theyhad held as Slave, who Chose to Stay there."Moses Brown to JamesPemberton, 17 Oct 1787,reprinted in JohnP. Kaminskiand GaspareJ. Saladino, eds, 14 TheDocumentary Historyof the Ratification ofthe Constitution by theStates: Commentaries on the Constitution, Public and Private506-07 (State HistoricalSociety of Wisconsin,1983). See also William Rotch, Sr. to Brown,8 Nov, 1787, in id at 521; Brownto JamesThornton, Sr., 13 Nov 1787, in id at 522-23; Edmund Priorto Brown, 1 Dec 1787, in id at 526. s9Federalist 42 and Federalist54. 6oJames Madison, in theVirginia Ratifying Convention, 17 June 1788,in John P. Kamin- ski and GaspareJ. Saladino,eds, 10 TheDocumentary History of the Ratification ofthe Constitu- tionby the States: Virginia [3] 1339 (State HistoricalSociety of Wisconsin,1993). 61 Id. 6] STORY AND SLAVERY 263 strengthenedhis argumentin favorof ratificationby Virginia.But, he did notmake such a pointbecause he did notbelieve it accurate. Similarly,when Patrick Henry asserted that the Constitution would lead to an abolitionof slavery,Edmund Randolph,who had been at the PhiladelphiaConvention, pointed to the FugitiveSlave Clause to provethat this was not so. He said thatunder the clause "authorityis given to owners of slaves to vindicate their property."62 In otherstates the debatewas muchthe same. The NorthCaro- lina delegatestold theirgovernor that "the SouthernStates have also a much betterSecurity for the Returnof Slaves who might endeavourto Escape thanthey have underthe originalConfedera- tion."63Similarly, Charles CotesworthPinckney told the South Carolina House of Representatives,"We have obtaineda rightto recoverour slaves in whateverpart of Americathey may take refuge, which is a rightwe had not before."64 None of the supportersof the Constitutionwho at been at the Conventionintimated that the FugitiveSlave Clause was a fundamentalpart of the bargain.Rather, they pointed to it as a plus for the South, but not as a major clause. Similarly,none of these framersanticipated that the federalgovernment would enforcethe clause. The structureof the Constitution supported this interpretation of the clause.65

C. JUSTICE STORY'S HISTORY AND THE PROSLAVERY CONSTITUTION Story'shistory of the origin of the Fugitive Slave Clause does notcomport with either the records of the Constitutional Conven- tionor withthe discussion of theclause during the ratification process.Significantly, both sources were available to him in 1842 whenhe wrotethe decision. The historyhe gavedid, however,

62 Edmund Randolphin the VirginiaRatifying Convention, June 24, 1788, in Kaminski and Saladino, 10 DocumentaryHistory 1484 (citedin note 60). 63 North Carolina Delegates [WilliamBlount, Rich'd D. Spaight,Hugh Williamson]to GovernorCaswell, Sept 1787, reprintedin Farrand,ed, 3 Records83 at 84 (cited in note 51).

64 Charles CotesworthPinckney, Speech in South Carolina House of Representatives, Jan [17], 1788, reprintedin 3 Farrand,Records 252 at 254. 65 The FugitiveSlave Clause is in Art IV, ? 2 of the Constitution.Sections 1, 3, and 4 of Art IV all give specificenforcement powers to the federalgovernment. Because ? 2 is the only partof thatarticle which does not explicitly grant authorize federal implementation, it is reasonableto arguethat the framersdid not intendto grantCongress such power. 264 THE SUPREME COURT REVIEW [1994 supporthis goal of nationalizingthe law. By reshapingthe clause into a fundamentalpart of the bargainover the Constitution,he could argue for exclusivefederal jurisdiction over the returnof fugitiveslaves. At anotherlevel, the Prigg opinion brought Story's jurisprudence closerto thetrue meaning of the Constitution, if not to themeaning ofthis particular clause. It seemsclear that one goal ofthe Constitu- tional Conventionwas to protectthe South's interestin slavery. Throughout the Convention,southerners explicitly demanded such protection.They gained it in a varietyof clauses dealing withrepresentation, taxation, the slavetrade, and the powerof the nationalgovernment to suppressrebellions and insurrections.Most importantof all, fromthe perspectiveof slaveowners,was the lim- ited natureof the nationalgovernment, which precluded a general emancipation.As GeneralCharles Cotesworth Pinckney of South Carolinatold his state'shouse of representatives: We have a securitythat the generalgovernment can never emancipatethem, for no suchauthority is grantedand it is admitted,on all hands,that the general government has no powersbut whatare expresslygranted by the Constitution, and thatall rightsnot expressed were reserved by theseveral states.66

Significantly,at the Conventionand in its aftermath,no one consideredthe FugitiveSlave Clause to be a particularlyimportant partof the constitutionalbargain over slavery.But, by the 1830s, southernersfelt that their peculiar institution was underattack. In his Commentarieson the Constitution ofthe United States,67 Story tried to assuage the South by describingthe clause as a giftfrom the Northto the South; thenin PriggStory tried to furtherplease the South by elevatingthe FugitiveSlave Clause to a centralpart of the constitutionalbargain, and thenprotecting expanded southern claimsunder this elevated clause. In Commentarieson the Constitution ofthe United States, published a decade beforePrigg, Story had erroneouslyasserted that the Fugi- tive Slave Clause was necessarybecause the lack "of such a provision under the [Articlesof] confederationwas felt,as a grievous

66 Charles CotesworthPinckney, Speech in South Carolina House of Representatives, Jan [17], 1788, reprintedin 3 Farrand,Records 252 at 254-55 (citedin note 51). 67 Story,Commentaries on the Constitution (cited in note 44). 6] STORY AND SLAVERY 265 inconvenienceby the slave-holdingstates, since in manystates no aid whatsoeverwould be allowed to the masters;and sometimes indeed they met with open resistance."68There was only a little truthto this position.Had the lack of such a clause been "feltas a grievousinconvenience" it would nothave taken southerners until late Augustto proposethe clause. Indeed, the stumblingnature of PierceButler's initial proposal of the clause suggeststhat he had not thoughtof it untiljust that moment. This recordof the Convention (whichwas not availableto Storyin 1833 but was in 1842) surely underminesStory's contentions. So too did the state statutesex- istingat thetime of the Convention.These statuteswere of course availableto Storyin 1833. In 1787, no state specificallyprevented southern masters from recoveringrunaways. Only in Massachusettsdoes it appear that runawayslaves found asylum.69Pennsylvania, Connecticut, and Rhode Island recognizedthe rightof a masterto recovera fugitive slave even while theywere dismantlingslavery themselves.70 New York and New Jerseywere stillslave states,and willingto partici- pate in the returnof runaways.But, in his CommentariesStory ignoredthis historybecause it suitedhis nationalisticpurpose to elevatethe fugitiveslave provisionto a key constitutionalclause, in orderto provethat the Constitutiongave the South special pro- tectionfor its mostimportant social and economicinstitution. For Story the clause was a boon "forthe benefitof the slaveholding states"to indicatenorthern good will towardthe "peculiar interests of the south.""71Thus in his Commentaries,Story had offeredthe Fugitive Slave Clause "to repressthe delusive and mischievous notion,that the south has not at all times had its full share of benefitsfrom the Union."72

68Id at ? 952. 69See the correspondenceof Moses Brownon thisissue. Moses Brownto James Pember- ton, 17 Oct 1787, reprintedin Kaminskiand Saladino, eds, 14 DocumentaryHistory 506-07 (citedin note 58); WilliamRotch, Sr. to Brown,8 Nov, 1787, in id at 521; Brownto James Thornton,Sr., 13 Nov 1787, in id at 522-23; Edmund Priorto Brown, 1 Dec 1787, in id at 526. There is no evidenceof runawayslaves reachingNew Hampshireand the putative state of Vermontat this time. Recoveryof slaves fromthose regionswould have been difficult,but it would have been even moredifficult for southern slaves to reach them. 70 On the rightsof mastersin those states,see Finkelman,An ImperfectUnion (cited in note 18). 71 Story,Commentaries at ? 952. 72Id. 266 THE SUPREME COURT REVIEW [1994

In Prigg,Story expanded and shiftedthe argument.The U.S. governmentwould guaranteethe interestsof the South, prevent the North frominterfering with the renditionof fugitiveslaves, and even allow mastersto seize and removealleged fugitives without any due processprocedure at all. All thiswas necessary,Story arguedin Prigg,because the Constitutionrequired it. There is an obvious explanationfor the differencebetween Story'sanalysis of the FugitiveSlave Clause in his Commentaries and his lateranalysis of it in Prigg.In the Commentaries,Story was tryingto providea nationalisticinterpretation of the Constitution that would be acceptedin all sectionsof the country.Story was writingjust afterthe emergenceof the militantabolitionist move- ment,in the wake of the Webster-Haynedebate, and at the time of the nullificationcrisis. The South was the sectionmost likely to rejecthis nationalistinterpretation of the Constitution.Thus, his assertionthat the Fugitive Slave Clause was insertedin theConsti- tutionsolely "forthe benefitof the slaveholdingstates"73 was de- signed to garnersupport in the South for Story'sconstitutional nationalism.The resultof thiswould be to renewsouthern faith in the fundamentalspirit of the Constitution-thatthe Constitution protectedslavery. In Prigg,however, Story did not have to appeal to the South. The opinion was overwhelminglyfavorable to the interestsof slavery.Rather, Story had to convincethe North to accept his proslaveryopinion. Thus, he put a new spin on his constitutionalhistory, arguing that the Constitutionrequired both the federallaw of 1793 and his harshinterpretation of it in Prigg. Storydoubtless hoped the North would accept Priggbecause he assertedit was dictatedby the Constitutionitself and because the FugitiveSlave Clause was an essentialpart of the constitutional bargainof 1787. In effect,Story accepted a proslaveryinterpreta- tion of the Constitutionas a vehiclefor strengthening the federal government.Although Story's son would laterargue that the opinion was antislaverybecause it localizedslavery, in fact,the opinion was significantlyproslavery because it actually nationalized slavery.74

73Id.

74 For a discussionof the"localization" argument, see PartV, A, ofthis article. Ironically, by nationalizingthe returnof fugitiveslaves, and makingthe FugitiveSlave Clause a central part of the constitutionalbargain, Story gave supportto the antinationalistposition of WilliamLloyd Garrisonand WendellPhillips that the Constitutionwas a proslavery"covenantwith death." 6] STORY AND SLAVERY 267

III. THE SECOND STORY: THE RELEVANT PRECEDENTS

In upholdingall aspectsof the FugitiveSlave Law of 1793, Storynaturally looked for precedents to supporthis position.Story argued thatthe existingcase law, consistingof threestate cases, totallysupported his position.In doing so, the justice and legal scholarcreated his second story.In fact,one of the cases he cited forauthority held the oppositeof what Storyclaimed it held. Fur- thermore,Story ignored two statecases thatdid not supporthis position. Althoughthe FugitiveSlave Act had been in forcefor a half centurywhen the Supreme Court heard Prigg,the existingcase law on the issue was hardlynoticeable. A fewlower federal courts had heardcases underthe law, but the districtjudges offered little guidance or intellectualsupport of Story.75While ridingcircuit, JusticeHenry Baldwin had deliveredone opinion on the law.76 Althoughoffering perfunctory support for the constitutionalityof the law, Baldwin did not analyzeit. The case was a suit fordam- ages againstPennsylvanians who helped a slave escape, and Bal- dwin easilyfound for the plaintiffslave owner.77 More importantthan any federalcases were the discussionsof the 1793 law in the state courts. By the time Priggreached the SupremeCourt, there were fivestate precedents involving the Fu- gitiveSlave Law of 1793.78Three, fromPennsylvania, Massachu- setts,and New York, had been officiallyreported. A case from New Jerseywas not officiallyreported, but the case and the opinion by ChiefJustice Joseph Hornblower were widely reportedin

75In re Susan, 23 F Cases 444 (US DC, Ind, 1818) (Fugitiveslave Susan returnedto slaverywith no opinion of the court);Case of Williams,29 F Cases 1334 (US DC, Pa, 1839) (courtdischarges a black(Williams) seized by professionalslave catcherbecause court determinesthat Williamsis not a fugitiveslave); In re Martin, 16 F Cases 881 (US DC, NY, 1827-1840)(in thiscase of an unknowndate, the Federal DistrictJudge in New York declared that the act of 1793 was constitutionaland a New York officialthen issued a certificateof removalunder the law). 76Johnsonv Tompkins et al., 13 F Cases 840 (US C C Pa, 1833) (JusticeBaldwin, riding circuit,upholds damagesfor a fugitiveslave rescuedby Tompkins). 77Id. The factthat Baldwin was an extremelyweak justiceundermined the value of any opinionhe wrote.More importantly,perhaps, many observers believed Baldwin was insane. Carl B. Swisher,History of the Supreme Court of the United States: The TaneyPeriod, 1836-64 51 (Macmillan,1974). His opinionin Priggsupports both observations. 78 Wrightv Deacon,5 Serg & Rawle 62 (Pa 1819); Commonwealthv Griffith, 19 Mass (2 Pick) 11 (1823); Jackv Martin,14 Wend 507 (NY 1835); Statev Sheriffof Burlington, No 36286 (NJ 1836);Pennsylvania v Prigg (unreported, Pa, 1841)reversed, Prigg v Pennsylvania, 16 Peters(41 US) 1 (1842). 268 THE SUPREME COURT REVIEW [1994

newspapersand cited by an importantOhio abolitionistlawyer a few yearsbefore Prigg.79 The fifthcase was the PennsylvaniaSu- premeCourt's opinion in Prigg,which had not been reported.But of course Storyhad the fullbenefit of the view of thatCourt.

A. THE JUSTICE'S STORY ABOUT THE RELEVANT CASE LAW Despite the mixedresponse of statecourts to the 1793 law, Jus- tice Storyargued that all statessupported his position.Story wrote thatthe law had: naturallybeen broughtunder adjudication in severalstates in theUnion, and particularlyin Massachusetts,New York, and Pennsylvania,and on all theseoccasions its validityhas beenaffirmed. The casescited at thebar . . . are directlyin point.so He noted in passingthat no federalcourt had ever denied the validityof the law, althoughhe did not examine any federal opinions.81 Storyused this sweepingassertion of supportfrom state cases to bolsterhis assertionthat the 1793act was "clearlyconstitutional in all its leadingprovisions."82 Story argued that if the interpretationof the FugitiveSlave Clause and the law of 1793 "were one of doubtfulconstruction, such long acquiescencein it, such contem- poraneousexpositions of it, and such extensiveand uniformrecog- nitionof its validity,would in our judgmententitle the question to be consideredat rest."83To the extentthat constitutional inter- pretationwas designedto giveAmericans certainty, then following

79 Statev Sheriffof Burlington, No 36286 (NJ 1836) (also known as Nathan,Alias Alex. Helmsleyv State).For newspaperaccounts of the case, see "UpholdingSlavery," 20 Friend 281-82 (June11, 1836). Portionsof thisarticle are reprintedas ImportantDecision, Liberator (July30, 1836), at 124. ImportantDecision, Newark Daily Advertiser(Aug 18, 1836). The case was cite by Salmon P. Chase in SalmonP. Chase,Speech of Salmon P. Chasein theCase ofthe Colored Woman, Matilda 18-19 (Pugh and Dodd, 1837),reprinted in Paul Finkelman, ed, 2 SouthernSlaves in Free State Courts 1 (Garland,1988). For a discussionof the Hornblower decision,see Paul Finkelman,State Constitutional Protections ofLiberty and theAntebellum New JerseySupreme Court: Chief Justice Hornblower and theFugitive Slave Law of1793, 23 Rutgers L J 753 (1992). 80soPrigg at 621. 81 Id. "So faras the judges of the Courtsof the United States have been called upon to enforceit, and to grantthe certificate required by it, it is believedthat it has been uniformly recognisedas a bindingand valid law; and as imposinga constitutionalduty." Id. 82Id at 622. 83Id at 621. 6] STORY AND SLAVERY 269 thestate cases supportedthat goal. Storyargued that the alternative was that"the interpretationof the Constitutionis to be delivered overto interminabledoubt throughoutthe whole progressof legislation,and of nationaloperations.""84

B. THE REAL CASE LAW

Story'suse of statecases to bolsterhis opinionwas logical and constitutionallysound. However, it was neitherhistorically cor- rectnor jurisprudentiallyhonest. There were fiveimportant state decisions on the Fugitive Slave Law by 1842. Two supported it,85two did not.86 The fifthcase, the PennsylvaniaSupreme Court'sdecision in Priggitself, did not questionthe constitutionality of the 1793 law, but also did not supportStory's other conclu- sions. This divisionis not simplya 2-2-1 split among state jurists. The supportiveopinions were short,analytically weak, and decided beforethe northernstates began to pass personalliberty laws in the mid-1820s.On the otherhand, the stateopinions attacking the federallaw and upholdingstate authorityto legislateon the subject were newer and analyticallystronger than eitherof the cases upholdingthe 1793 law. In 1819, Pennsylvania'sChief Justice, William Tilghman, en- forcedthe federallaw while denyingthat a fugitiveslave had the rightto a jury trial. However, he did not otherwiseexamine the constitutionalityof the federalact.87 In 1823, ChiefJustice Isaac Parkerof Massachusettsalso upheld the 1793 law but limitedhis analysisto "a singlepoint: whether the statuteof the United States to seize a slave withouta warrantis givingpower constitutional.'"88 Parkerupheld this warrantless seizure because "slaves are not parties to the constitution,and the [Fourth][A]mendment has [no] [sic]relation the parties."89Parker noted, withoutany citationor

84Id. s8 Wrightv Deacon,5 Serg & Rawle 62 (Pa 1819); Commonwealthv Griffith, 19 Mass (2 Pick) 11 (1823). 86Jackv Martin,14 Wend 507 (NY 1835);State v Sheriffof Burlington, No 36286 (NJ 1836) (also knownas Nathan,Alias Alex. Helmsleyv State). 87 Wright,5 Serg & Rawle at 62. 88 Griffith,19 Mass (2 Pick) at 11, 18. 89Id at 19. 270 THE SUPREME COURT REVIEW [1994

referenceto a specificconstitutional provision, that "[t]he constitution does not prescribethe mode of reclaiminga slave, but leaves it to be determinedby Congress."90 Parkermight have reacheda differentconclusion if he had both- ered to analyze the 1793 law or the FugitiveSlave Clause of the Constitution.A structuralanalysis of the Constitutionmight have led Parkerto concludethat because the FugitiveSlave Clause was placed in ArticleIV, Section2, the clause was in factnot subject to Congressionalenforcement. Sections 1, 3, and 4 of the Article have specificprovisions giving Congress enforcement power. For example,in Section1 Congresswas specificallyauthorized to "pro- scribe the Manner in which" acts, records,and court decisions in one state mightbe proved in another.91 Similarly,Section 3 empoweredCongress to admit new statesto the Union and "to dispose of and make all needfulRules and Regulations"for the Territories.92Indeed, Section2 was theonly part of Article IV that did notempower the national government to enforceits provisions. Logically,fugitive slave rendition was partof the comity provisions of thissection of ArticleIV, and shouldhave been leftto the states to enforceas a matterof comity.93 The opinionsof ChancellorReuben Walworth of New York and ChiefJustice Joseph C. Hornblowerstand in markedcontrast to the meageranalysis of Tilghmanand Parker.Both judges offered a carefulanalysis of the constitutionalissues involvedin the 1793 law and FugitiveSlave Clause. Both opinionswere relativelyre- cent,and reflectedconcepts of federalismas theywere understood in JacksonianAmerica. Moreover,both judges thoughtthe 1793 law was unconstitutional. Hornblower'sopinion was unreported,and althoughStory prob-

90Id. 91 US Const, ArtIV, ? 1, "Full Faithand Creditshall be givenin each Stateto thepublic Acts, Records, and judicial Proceedingsof everyother State. An the Congress may by generalLaws prescribethe Mannerin whichsuch Acts, Recordsand Proceedingsshall be proved,and the Effectthereof." 92 US Const, Art IV, ? 3. Section 4 of this Articleempowered "The United States" to guaranteea "RepublicanForm of Government"in everystate. Thus, Congress,along with the other branchesof government,could act to enforcethis clause. See generally, WilliamM. Wiecek, TheGuarantee Clause of the U.S. Constitution(Cornell University Press, 1972). 93 See the discussionin note 95. 6] STORY AND SLAVERY 271 ably had access to it,94it is possiblehe was eitherunaware of the decisionor feltthat because it was unreportedhe could ignoreit.95 ChancellorReuben Walworth'sdecision in Jack v Martin,96how- ever,was well knownto Storyand was cited in argument.Speak- ing for New York's highestcourt, Walworth found the Fugitive Slave Act unconstitutionalbecause Congresslacked the power to pass such a law. Walworthhad lookedin vainamong the powers delegated to congressby the constitution,for any general authority to thatbody to legislate on thissubject. It is certainlynot containedin any express grantof power,and it does notappear to be embracedin the generalgrant of incidentalpowers contained in thelast clause ofthe constitution relative to thepowers of congress.97 Aftercareful consideration of the Constitution'stext and the state statutesexisting in 1787, Walworthapplied a versionof original intentanalysis to concludethat the 1793law was unconstitutional. It is impossibleto bringmy mind to theconclusion that the framersof the constitution have authorized the congress of the UnitedStates to passa law bywhich the certificate ofa justice ofthe peace of the state, shall be madeconclusive evidence of

94 Ohio attorneySalmon P. Chase had citedit whilearguing a case in 1837. Chase, Speech ofSalmon P. Chaseat 18 (citedin note 79). 95In his analysisof ArticleIV, Hornblowercompared the Full Faith and CreditClause, which explicitlygives Congressthe power to pass laws, with the FugitiveSlave Clause. Since no such explicitlanguage exists in ? 2, the courtconcluded that "no such power was intendedto be given"to Congressfor implementation of the clauses in thatsection of the Constitution.Indeed, Hornblowerargued that Congressional legislation over the Privileges and ImmunitiesClause or over interstaterendition "would covera broad field,and lead to the most unhappy results." Such legislationwould "bringthe general governmentinto conflictwith the state authorities,and the prejudicesof local communities."Hornblower assertedthat Congress lacked the "rightto prescribethe mannerin whichpersons residing in the freestates, shall be arrested,imprisoned, delivered up, and transferredfrom one state to another,simply because theyare claimedas slaves." Consistentwith the northernstates' rightsarguments of the antebellumperiod, Hornblowerwarned the "American people would not long submit"to such an expansiveview of Congressionalpower. Althoughthis analysisseemed to lead to the conclusionthat the FugitiveSlave Act was unconstitutional, Hornblowerdeclined "to expressany definitiveopinion on the validityof the act of Con- gress." He could avoid this grave responsibilitybecause the case beforehim had been brought"in pursuanceof the law of this state." However, Hornblower'sposition on the unconstitutionalityof the federallaw was unambiguous.Opinion of Chief Justice Hornblower on theFugitive Slave Law at 4-5 (1851), reprintedin Paul Finkelman,ed, 1 FugitiveSlaves and AmericanCourts: The Pamphlet Literature 97 (Garland, 1988). 96 14 Wend 507 (NY 1835). 97Id at 526. 272 THE SUPREME COURT REVIEW [1994

the rightof theclaimant, to removeone who maybe a free nativeborn citizen of this state, to a distantpart of theunion as a slave;and thereby to deprivesuch person of the benefit of thewrit of habeas corpus, as wellas of his commonlaw suitto tryhis right of citizenship in the state where the claim is made, and wherehe is residingat thetime of such claim.98 Walworth'sopinion in Jack v Martinwas notaimed at preventing the renditionof fugitiveslaves. Walworthupheld Martin'sclaim to Jack and firmlysupported the obligationof state officialsto returnfugitive slaves, assertingthat every "state officer or private citizen,who owes allegianceto the United States and has taken theusual oathto supportthe constitution" was obligatedto enforce the FugitiveSlave Clause of the Constitution."Nevertheless, he categoricallydenied the constitutionalityof the Fugitive Slave Law. Before the Supreme Court, both counsel for Pennsylvania, Thomas Hambly and AttorneyGeneral Ovid F. Johnson,cited the case. Hambly notedthat thequestion of constitutionality wasdebated [inJack v Martin], andin my judgment not a singlesolid reason was given for that construction,but, on thecontrary, Chancellor Walworth says, 'I havelooked in vainamong the delegated powers of congress forauthority to legislateupon the subject,' and concludes that statelegislation is amplefor the purpose.00 AttorneyGeneral Johnson noted that the stateswere dividedon theconstitutionality ofthe Fugitive Slave Act. He pointedout that Commonwealthv Griffithbol and Jackv Martin"exhibit[ed] a most strikingillustration of the 'uncertaintyof the law.' "102 In these two cases "the courtswere divided in opinion,"while in various Pennsylvaniacases "the questiondid not properlyarise, and the Court, withoutexamination, declared its opinionon the constitutionalityof the act of Congressof 1793."103 Despite Story'sreputation as a greatlegal scholar,he ignoredthe

98 Id at 528. 99Id. '0l Priggat 584. 101 19 Mass (2 Pick) 11 (1823). 102Prigg at 591. '03Id at 591-92. 6] STORY AND SLAVERY 273 argumentsof Hambly and Johnsonwhile unblushinglydistorting Walworth'sopinion. Walworth found the 1793act unconstitutional but, citingWalworth's opinion, Story wrote, "it has naturallybeen broughtunder adjudicationin several states in the Union, and particularlyin Massachusetts,New York, and Pennsylvania,and on all theseoccasions its validityhas been affirmed."'" This statementis flatlywrong. Chief JusticeHornblower of New Jerseyhad foundthe law unconstitutional.The Pennsylvania SupremeCourt, in Prigg,completely disagreed with Story's interpretationof the law, and of courseJack v Martindid not affirm the constitutionalityof the 1793 law; rather,it totallyrejected its constitutionality.It is hardto imaginehow Storycould have written thiswith a straightface. Determined,however, to let nothing stand in his way, he did more than ignorecountervailing precedents:he rewrotethem to supporthis own opinion.This was the Justice'ssecond story.

IV. THE THIRD STORY: THE LIFE OF MARGARETMORGAN

The cost of Story'srewriting of constitutionalhistory and reinterpretingthe Fugitive Slave Clause would be bornemostly by black Americans,free and fugitive,who lived in the North. After Prigg,a masteror her agent could seize any black, and if done withouta breachof the peace, removethat person to the South. No statecourt could intervene;no stateofficial could questionthe actionsof the slavecatcher. The factsof Prigg illustrate the dangers of Story'sopinion.

A. THE TRAVELS AND TRAVAILS OF MARGARET MORGAN AND HER CHILDREN WhenPrigg seized her, Margaret Morgan made no claim of "mis- taken"identity. She was the child of people who were born slaves, andthus Prigg had at leasta primafacia claim to her,both under the federallaw of 1793and Marylandlaw. Nevertheless,Morgan's lifeas a slave,and thecircumstances of herarrival in Pennsylvania, revealthe problems caused by theFugitive Slave Clause and the

'04 Id at 621. 274 THE SUPREME COURT REVIEW [1994

1793law Congressadopted to enforceit. 10"' These factsalso suggest thatMorgan and some or all of her childrenmay have had viable claims to freedom,under Pennsylvanialaw and perhaps under Marylandlaw. In otherwords, althoughonce a slave, by 1837 Morganmay have been legitimatelyfree; certainly "several" of her childrenhad been bornfree,106 and were not subjectto the federal law of 1793. In his opinion,Justice Story glossed over these possi- bilitiesin his desireto writea sweepingnationalistic opinion strik- ing down Pennsylvania'spersonal liberty law of 1826, despitethe factthat the circumstancesof Morgan'slife underscore the necessity of such laws to protectfree blacks who mightbe enslaved underthe color of federallaw. In the early yearsof the nineteenthcentury-probably before 1812-a Marylandslaveowner named John Ashmore allowed two of his slaves-an aged marriedcouple-to live in virtualfree- dom.107Although Ashmore never formally freed the two slaves, thereafterhe "constantlydeclared he had set them free."108The two slaves raised a daughternamed Margaret.109Because she was born in Maryland,to a slave mother,Margaret was technically Ashmore'sslave, even though Ashmore never asserted any author- ityover her. In 1820, John Ashmorewas a sixty-year-oldfarmer and mill owner,with extensiveland holdingsin HarfordCounty. He also owned ten slaves,although neither Margaret nor her parentswere among them. However, shortlyafter that he began disposingof his slaves. In March 1821, the sixty-one-year-oldAshmore sold two male slaves to his neighborJacob Forwardfor eight hundred dollars.110By 1824,when he died, Ashmoreowned only two young

105On the historyof the adoptionof the law, see Paul Finkelman,The Kidnapping ofJohn Davisand the Adoption of the Fugitive Slave Law of1793, 56 J SouthernHistory 397-422 (1990). '0 Thomas C. Hambly,Argument of Mr. Hambly,of York, (Pa.) in theCase of Edward Prigg 8 (Baltimore,Lucas & Dever, 1842),reprinted in Paul Finkelman,ed, 1 FugitiveSlaves and AmericanCourts: The Pamphlet Literature 128 (Garland, 1988) (hereafterArgument of Hambly [withoriginal page numbersand reprintpage numbersin parentheses]). 107 Informationabout thiscase comes fromthe printedreport in Priggat 608-10. 108 Argumentof Hambly at 8 (128) (cited in note 106). '09 We have no recordof what her last name was beforeshe marriedMorgan. "O0John Ashmoreto Jacob Forward,Bill of Sale, March 6, 1821, in HarfordCounty HistoricalSociety manuscripts. In 1837 Forwardwould join Edward Priggand Nathan S. Bemis in theirquest forMargaret Morgan. Forwardwas one of the fourmen indictedfor the kidnapping,but only Priggwas returnedfor trial. Ashmore'stotal slave propertyin 1820 is based on the US ManuscriptCensus, 1820,Harford County, Maryland, p 380 (also 6] STORY AND SLAVERY 275 male slaves.In May 1821,Ashmore sold hisconsiderable real estate holdingsto his daughter,Susanna Ashmore Bemis, for "the consid- erationof naturallove and affection"and a nominalsum.111 Three years later Ashmoredied intestate.All his remainingproperty wentto his wife,Margaret Ashmore. By thistime the estate, which includedno real property,was relativelysmall, and valued at only $509. The mostvaluable assets were two slave boys, Tommy, age 12, and James, age 11.112 There is nothingto indicate that he owned, or claimedto own, a teenagedslave girlnamed Margaret at his deathor before.At the timeof his deathAshmore was living at his old home,which by thistime he had deeded to his daughter, Susanna Bemis. His widow, MargaretAshmore, continued to live thereas well."' Sometimeafter John Ashmore's death, Margaret, the daughter ofhis formerslaves, married Jerry Morgan, a freeblack from Penn- sylvania.They continuedto live in HarfordCounty, in the same neighborhoodas MargaretAshmore and her daughterand son-in- law, Susanna and Nathan S. Bemis. It is possible that Margaret Morganlived withher aged parentson land once owned by John Ashmoreand givento Susanna Bemis.114In 1830,the county sher- iff,who was also the census taker,recorded Jerry Morgan as the head of a familyconsisting of one freeblack woman (Margaret) and theirtwo "freeblack" children.115In 1832, afterthe death of Margaret'sparents, the Morgansmoved to York County,Pennsyl- vania, apparentlywith the knowledgeof MargaretAshmore and Nathan S. Bemis. What happenednext is unknown.But, in February1837, Ash- more'sson-in-law, Nathan S. Bemis,went to Pennsylvaniato bring notedas p 76). Ashmore'sbirthdate, Jan 22, 1760, is foundin Bill and MarthaReamy, St. George'sParrish Registers, 1689-1793 (FamilyLine Publications)85. "' Deed ofConveyance from John Ashmore to Susanna Bemis,May 11, 1821,in Harford CountyHistorical Society manuscripts. Edward Priggwas one of the two witnessesto this need. 112John Ashmore Inventory, Sept 28, 1824,Harford County, Register of Willis,# 1672. "'3 US ManuscriptCensus, 1830, HarfordCounty, Maryland, p 387. On April 22, 1845, MargaretAshmore manumitted her slave Jim,who she had inheritedwhen her husband died. Nathan S. Bemis servedas the "agentand attorney"for Margaret Ashmore in this transaction."Margaret Ashmore and Negro Jim,Manumission Deed, recordedMay 10, 1845." HarfordCounty Historical Society manuscripts. "4 This claim is made by Thomas Hambly, counsel forPennsylvania, in his Supreme Court brief.Hambly, Argument of Mr. Hamblyat 8 (128) (cited in note 106). "s US Census, 1830, ManuscriptCensus forHarford County, Maryland, p 394. 276 THE SUPREME COURT REVIEW [1994

Margaret and her children back to Maryland. Accompanying Bemis were threeneighbors, Edward Prigg,Jacob Forward,and StephenLewis, Jr. Prigg and Forwardhad longties to theAshmore family.Prigg witnessed John Ashmore's deed of land to his daughter and laterwitnessed the inventoryof his estate;Forward had purchasedslaves fromAshmore and Ashmorehad been a witness to thewill of Forward'sfather."' The fourneighbors easily located MargaretMorgan and secured an arrestwarrant from Thomas Henderson,a York County,Pennsylvania, justice of the peace, as requiredby the Pennsylvanialaw of 1826. A local constablethen accompaniedthe fourMarylanders to the Morganhome, arrested thefamily, and broughtthem back to Justiceof the Peace Hender- son. When Hendersonactually saw the Morganfamily, however, he refusedto grantBemis and Prigga certificateof removalto take theMorgans back to Maryland.It was clearthat Morgan's husband was a free-bornnative of Pennsylvania,and thatat leasttwo of her childrenhad been bornin thatfree state as well. Perhapson hearing MargaretMorgan's story,Henderson concluded that the entire familywas reallyfree. Bemis and Prigg were not deterred,and withoutprocess took MargaretMorgan and her childrenback to Maryland.They were subsequentlyindicted for kidnapping, but only Priggwas returnedfor trial."17

B. THE JUSTICE'S STORY ABOUT MARGARET MORGAN

In Prigg,Justice Story did not tell MargaretMorgan's story. Rather,he repeated,in the barestdetails, the findingsof the lower court.He notedthat the Pennsylvaniatrial court had foundPrigg guilty"for having, with force and violence,taken and carriedaway fromthat county to the stateof Maryland,a certainnegro woman, named MargaretMorgan, with a design and intentionof selling and disposingof, and keepingher as a slave or servantfor life, contraryto a statuteof Pennsylvania,passed on the 26thof March, 1826.""118He recountedPrigg's response "that the negro woman, MargaretMorgan, was a slave for life, and held to labour and serviceunder and accordingto the laws of Maryland,to a certain

1"6Bible Records of Harford County, Maryland Families, 133, typescriptin MarylandHistori- cal Society,Baltimore. See also notes 110, 112. "7 Priggat 543. "s Id at 608. 6] STORY AND SLAVERY 277

MargaretAshmore, a citizenof Maryland;that the slave escaped and fledfrom Maryland into Pennsylvaniain 1832."119Almost as an afterthought,Story added that "The special verdict[of the Pennsylvaniatrial court] further finds, that one ofthe childrenwas bornin Pennsylvania,more than a yearafter the said negrowoman had fledand escaped fromMaryland."120 This is all JusticeStory has to say about MargaretMorgan, her husbandJerry, and theirchildren. This limitedsummary of facts, whilenot untrue, is surelymisleading. The facts,as Storypresents them,raise three important questions, which the Justice never addressed.First, was Morganin facta "slavefor life" under Maryland law? Second, had Morganin fact"escaped and fledfrom Maryland intoPennsylvania?" Third, what was the statusof the child-and was it only one child-who "was bornin Pennsylvania?" Had Storyaddressed these issues he would have been unable to so easily createa rightof self-helpfor slave hunters.He similarly mighthave been less able to strikedown Pennsylvania'spersonal libertylaw. In his opinionStory asserted, "we have not the slightest hesitationin holding,that, under and in virtueof the Constitu- tion,the ownerof a slave is clothedwith entire authority, in every statein the Union, to seize and recapturehis slave, wheneverhe can do it withoutany breachof the peace, or any illegalviolence. In this sense, and to this extentthis clause of the Constitution may properlybe said to executeitself; and to requireno aid from stateor legislation, national.'"121 Because he did not considerthe factsof MargaretMorgan's life, Story did not address how a state would be able to protectthe libertyof its free-borncitizens, such as MargaretMorgan's child. He ignoredthe freestatus of the child and the possiblefree status of Morganherself. Only by doing so could he justifythe rightof self-helpand the strikingdown of the state protectionsfor free blackswho mightotherwise be claimedas fugitiveslaves.

C. MARGARET MORGAN'S CLAIMS TO FREEDOM MargaretAshmore based her claim to Morgan on the factthat Morgan's motherhad never been legally emancipated,and thus

119Id at 608-09. 120Prigg at 609. 12' Id at 613. 278 THE SUPREME COURT REVIEW [1994

Morganherself was born a slave, and continuedto be owned by theAshmores. On itsface this was a validclaim. However,Morgan mayhave had a legitimateclaim to freedom,both in Marylandand Pennsylvania.As a slave who was allowed to travelto a freestate and livethere with the knowledge of her master, Morgan may have becomelegally free.122 There is no evidencethat anyone raised this potentialclaim to freedom,either in the trialcourt or at the appellate level. This is in part because Morgan'sstatus was neverbrought before any Pennsylvaniacourt.123 Nevertheless, Story might have addressed theseissues in his opinion,had he been interestedin findinga way to uphold the Pennsylvanialaw. Indeed, these factscould have been enough to send the case back to trial in Pennsylvania,to determineif Morgan had in factbeen freeall along. Afterall, if MargaretMorgan was entitledto freedomunder Pennsylvania law, it would nothave been unreasonablefor the Court to assertthat she had a rightto provethat freedom in a Pennsylvaniacourt. Even ifthe SupremeCourt had decidedit could not consider Morgan's claims to freedombecause she was nota partyto thecase, thispotential claim to freedomshould have alertedStory to theimportance of allowing statesto protectthe liberty of their residents.

122As the daughterof slaves abandonedby theirowner, she mighthave claimed some commonlaw rightto be free.Ashmore, the original owner, had clearlyabandoned his claim to MargaretMorgan's parents. They lived and acted likefree persons. Moreover, Ashmore seems to have neverasserted any claim over Margaret.In 1832, the South Carolina courts held that"Proof that a negrohas been sufferedto live in a communityfor years, as a free man, wouldprima facie, establish the factof freedom.Like all otherprima facie shewing, it may be repelled,and shewnthat, notwithstanding it, he is a slave,not legallymanumitted, or set free.But until this is done, the generalreputation of freedomwould . . . establish it. . . "State v Harden,2 Spears (SC) 151 n (1832). Marylandcase law appearsto have been hostileto the notionthat a slave could gainfreedom through reputation, through something akinto adversepossession of one's self.In Walkupv Pratt,5 Har and John51, at 56 (1820), the Court held that "generalreputation of the neighbourhood,that the petitioner,or his ... maternalancestors, were free negroes" was not admissibleto provefreedom. Similarly, in 1837 the Marylandcourt also held thata slave was not freeeven thoughhe "went at large and acted as a free man, by keepingan oysterhouse, and boot-blackshop, and otherwiseacted as a freeman, his own master... .", Blandv NegroBeverly Dowling, 9 Gill and John19 (1837). This case did not directlyraise the freedomissues underconsideration Prigg.In Bland the slave unsuccessfullyclaimed his freedomon the groundsthat he had purchasedit fromhis ownerBland. 123 In May 1837,Margaret Morgan sued forher freedom in a HarfordCounty court. On August28, a jurywas sworn,which two days laterdecided that she was stilla slave. More thana dozen witnessesappeared on behalfof the defendant,Margaret Ashmore. Margaret Morgan,on the otherhand, does not seem to have been representedby counsel. Docket Book, HarfordCounty Civil and CriminalCourt, 1837, in HarfordCounty Historical Society. Margaretand her childrenwere subsequentlysold South. Argumentof Hambly at 10 (130) (citedin note 106). 6] STORY AND SLAVERY 279

Morgan'sstrongest claim to freedomrested on the law of slave transitand interstatecomity. By 1837,most of theNorth accepted theprinciple that a slavebecame free if brought into a freejurisdic- tion.124As earlyas 1780, Pennsylvaniahad acceptedthe principle thatany slavevoluntarily brought into the state became free. How- ever, in order to preserveinterstate comity, Pennsylvania also grantedmasters a six monthsgrace period before freeingtheir slaves.125 Clearly MargaretAshmore knew that Margarethad gone to Pennsylvania.Yet she did nothingto stop her or retrieveher. In- deed, she acquiescedin theactions of Margaret.126 A Pennsylvania courtcould easilyhave foundMargaret free under Pennsylvania's 1780 law on the theorythat Ashmore had implicitlyconsented to her takingup residencein a freestate and allowed herto live there formore than six months.A Marylandcourt might have agreedas well. In 1799 a Marylandcourt had upheldthe freedomclaim of a slave because his masterhad hiredhim to workin Pennsylvania.127 Morganmay also have had a claim to freedomunder Maryland law. TechnicallyMorgan was a slave because her motherwas a slave, and neitherhad everbeen formallymanumitted. Maryland, like all otherslave states,did not allow a masterto accomplisha manumissionde facto.Rather, manumissions required specific acts and actions.However, in 1837 a Marylandcourt seemed to imply that a slave mightbecome freebecause "he appeared at all times openly, and it was notoriousto his neighbors"that he resided in Pennsylvania.128This was analogousto the conceptof adverse possession in real propertylaw. Because Ashmore had allowed

124For a full discussionof freedomthrough transit, see Finkelman,An ImperfectUnion (citedin note 18). 12s"An Act forthe Gradual Abolitionof Slavery,"Act of March 1, 1780, Pennsylvania Laws, 1780.

126This mightbe becauseMargaret Ashmore did notclaim Margaret Morgan as herslave. She was notpart of John Ashmore's estate, and consideredfree by the local authoritieswho tookthe 1830 census. 127Negro David v Porter,4 Harr & McH 418 (1799). 12s Pocockv Hendricks,8 Gill and John(Md) 421 (1837). However, laterthat month (June 1837) the same courtalso held thata slave was not freeeven thoughhe "wentat large and acted as a freeman" and had been allowed to travelto New York and workthere. Bland v NegroBeverly Dowling, 9 Gill and John 19 (1837). Neithercase directlyraised the freedom issues underconsideration here. Pocockinvolved a suit betweentwo whites,while in Bland the slave unsuccessfullyclaimed his freedomon the groundsthat he had purchasedit from his ownerBland. 280 THE SUPREME COURT REVIEW [1994

Margaretto adverselypossess herself by livingfree in bothMary- land and Pennsylvaniafor her entirelife, she mighthave had a claimto freedom.The findingof the 1830 censusthat she was free would certainlyhave bolsteredthis claim. This reasoning,and the fewMaryland cases on theissue, suggestthat Margaret might have been freeunder Maryland law, as well as underPennsylvania law.

D. THE CLAIM TO FREEDOM OF MARGARET MORGAN'S CHILDREN

By 1837,Margaret Morgan was the motherof a numberof children. The existingrecord is unclearabout how many she had. It is also notclear how manyof thesechildren were born in Pennsyl- vania,129and how manywere born in Maryland.It was undisputed, however,"that one ofthe children was bornin Pennsylvania,more thana yearafter the said negrowoman had fledand escaped from Maryland."130 Under Pennsylvania'sGradual EmancipationAct of 1780, all childrenborn of slavemothers in Pennsylvaniaafter March 1, 1780 were free,"13but could be indentureduntil age twenty-eight.132 Pennsylvaniacourts, both beforeand afterPrigg, supported the notionthat any child born in the Commonwealthwas free,even if the child's motherwas a runawayslave."13 Pennsylvania law furthermoreprohibited the removalfrom the stateof any minor childborn to a slave.134 Thus, underPennsylvania law at leastone, and perhapsmore than one, ofMorgan's children was a freeperson.

129 "The childrenwere bornin Pennsylvania.. ", Priggat 539. 130Id at 609. 131 "An Act forthe Gradual Abolitionof Slavery,"Act of March 1, 1780, Pennsylvania Laws, 1780, ? III, "All personsas well Negroesand Mulattoesas others,who shall be born withinthis statefrom and afterthe passingof thisact, shall not be deemed as considered servantsfor life, or slaves; and thatall servitudefor life, or slaveryof children,in conse- quence of the slaveryof theirmothers, in the case of all childrenborn withinthis state fromand afterthe passingof this act as aforesaid,shall be, and herebyis, utterlytaken away, extinguished,and forever abolished." 132Id at ? IV. 133 Commonwealthv Holloway, 2 S & R (Pa) 305 (1816); Commonwealthv Auld, 4 Clark(Pa) 507 (1850). This issue is discussedin Finkelman,An ImperfectUnion at 64-65 (cited in note 18). 134 "An Act to Explain and Amend An Act, Entitled'An Act forthe Gradual Abolition of Slavery,'" Act of March 29, 1788,Pennsylvania Acts, 1788, ? II. 6] STORY AND SLAVERY 281

E. THE CLAIMS TO FREEDOM AND THE PENNSYLVANIA PERSONAL LIBERTY LAW OF 1826

If eitherMargaret Morgan or any of her childrenwere entitled to theirfreedom under Pennsylvania law, thenPrigg had no right to seize themand removethem from the state.Similarly, the Com- monwealthof Pennsylvaniahad a presumptiveright to protect themfrom kidnapping. Shortly before the legislatureadopted the 1826 law, fivefree black childrenwere kidnappedfrom Philadel- phia and sold as slaves. While threeof the young boys were returnedto Philadelphiaafter "they fell into the hands of a humane protector"in Mississippi,the othertwo died duringtheir illegal captivity.135 Thus, while the 1826 law mighthave been used to frustratethe returnof a fugitiveto a slave state,the act had been adopted to bothprevent kidnapping and avoid conflictsbetween Pennsylvania and her slave-holdingneighbors. At the timeof its adoption,"it is unlikelythat many, except the militantantislavery people, under- stoodthat the law was subjectto interpretationswhich would virtu- ally deny the recoveryof runawaysin Pennsylvania.""16The first sectionof the 1826act was aimedat kidnappers,not slave catchers. This sectionpunished anyone who by forceand violence,take and carryaway, or causeto be takenor carriedaway, and shallby fraudor falsepretence, seduce,or cause to be seduced,or shallattempt so to take, carryaway, or seduceany negroor mulattofrom any part or partsof thiscommonwealth, to any other place or places, whatsoever,out of thiscommonwealth, with a designand intentionof selling and disposing of, or ofcausing to be sold,or ofkeeping and detaining, or of causing to be keptand detained, suchnegro or mulatto,as a slaveor servantfor life, or forany termwhatsoever. . 137 If MargaretMorgan had a reasonableclaim to freedomunder Pennsylvanialaw, thenshe surelyhad a rightto trythat claim under Pennsylvanialaw. Even ifshe could nothave maintained her claim,

135This is describedin Leslie, ThePennsylvania Fugitive Slave Act of1826 at 221 (cited in note 26). '36Id at 440.

'37Pennsylvania Act of1826, ? 1. 282 THE SUPREME COURT REVIEW [1994

Morgan'sPennsylvania-born children should have be able to prove theirfreedom in thecourts of the state in whichthey were born.138 Certainlyother blacks claimed as fugitiveslaves would in fact be free. Thus, the Supreme Court should have upheld at least some parts of the Pennsylvanialaw, as it relatedto free blacks. In dissentJustice John McLean argued for preciselythis position. JusticeStory, however, writing for the majority,had no interest in protectingthe libertyof Pennsylvania'ssubstantial free black population. By strikingdown the Pennsylvanialaw, the Court seemedto leave Pennsylvaniapowerless to preventthe kidnapping of its own citizens.

V. THE FOURTHSTORY: THE MYTHOF THE "TRIUMPHOF FREEDOM"

Accordingto his son WilliamWetmore Story, Justice Story "repeatedlyand earnestlyspoke" of his Priggopinion as a "triumph of freedom."'139Whether Story actuallysaid this is not clear. It does not appear in any of his letters,and except for his son's assertion,there seems to be no independentevidence on the sub- It seemsdoubtful that he was ject. 4 Storyactually thought writing

'38Authorities in Marylandprivately acknowledged that Bemis, Prigg, Forward and Lewis were probablyguilty of kidnappingfor taking Morgan's Pennsylvania-born children to Maryland,but theynevertheless objected to the extraditionof the men fromHarford County.When he receiveda letterfrom the Governor of Pennsylvaniaindicating that there would be an extraditionrequisition for the fourmen, Thomas Culberth,the Clerk of the Governor'sCouncil, told Maryland'sgovernor that "The part of the case involvedin the most difficulty,and dangerof producingcollision and excitement,relates to the children which it seems, were born in Pennsylvania.They were freeby the Law of Pennsylvania, and accordingto my readingand understandingof the constitutionaland legal provisions forreclaiming fugitives, do notcome within their provisions, and, consequently,the seizing and takingof themaway, (if Esquire Hendersonor some otherauthorized magistrate, did not give authority)was the 'crime'of kidnapping."Yet, Culberthurged the Governorto avoid any cooperationon the issue because it was so politicallysensitive in Maryland. Thom. Culberth,Clerk of Council, to His Excellency,Gov Thomas W. Veazey, March 27, 1837, MarylandState Archives;MSA NO S1075; Governorand Council Letterbook, 1834-38, pp 553-54. 139William Wetmore Story, ed, 2 Lifeand LettersofJoseph Story at 392 (Charles C. Little and JamesBrown, 1851).

140 In his prize-winningbiography of Story,R. Kent Newmyerwrote: "Upon his return to Massachusettsin thespring of 1842,he spokeof opinion in Prigg'repeatedly and earnestly' to his familyand friendsas a 'triumphof freedom.'" Newmyer,Justice Joseph Story, at 372 (citedin note 1). In the noteto thissentence, Newmyer cites to WilliamWetmore's discussion in 2 Lifeand Lettersat 392 (cited in note 139), and thenNewmyer writes, "'Triumph of Freedom'was Story'sphrase, not his son's." But, Newmyerprovides no otherevidence that it was the justice'sphrase. Ordinarily,I would accept WilliamWetmore Story as a 6] STORY AND SLAVERY 283 an opinionthat was a "triumphof freedom" in anyeasily recogniz- able way. Neitherdid his assertionmake the opinion such a triumph.The "triumphof freedom" seems, in theend, to be justone morestory, told by thejustice and/or his son, to defendwhat was a triumphof proslaveryjudicial nationalism. WilliamWetmore Story made the best defense he couldof his father'sopinion. The defensewas in theend neithercredible nor persuasive.Made afterhis father's death, it was a patheticattempt to reversein thecourt of northern public opinion the correct assess- mentof Story'sopinion of thecourt as fundamentallya triumph over freedomfor the South.

A. THE STORYS TELL THEIR TALE The youngerStory, himself an accomplishedlegal scholar,141 defendedPrigg as a "triumphof freedom" on threegrounds. First, William Wetmoreargued that Prigg"was a 'triumphof freedom,'because it localized slavery,and made it a municipal institutionof the States, not recognized by internationallaw, and except,so faras the exact termsof the clause relatingto fugitive slavesextend[ed], not recognized by theConstitution."'42 This was a fairsummary of one of theinitial premises of the opinion.Citing to Somersetv Stewart (1772),143 Story declared that under "the general law of nations,no nationis bound to recognizethe state of slavery."'" Story furtherdeclared that "The state of slaveryis deemedto be a meremunicipal regulation, founded upon and lim- ited to the rangeof the territoriallaws."145 Had Storystopped his opinionhere, it would have indeed "localized"slavery. good sourcefor what Justice Story said. But WilliamWetmore was clearlyembarrassed by his father'sopinion, and by his father'sattempt to hide the proslaveryforce of the opinion. Thus, WilliamWetmore edited out a key sectionof a letterto SenatorBerrien, in which JusticeStory set out a way thatthe South could avoid any aspectsof the opinionthat might makeit a triumphof freedom. Newmyer's own compellinganalysis of Story,combined with WilliamWetmore's less thanhonest editing of his father's papers, undercuts the credibility of William Wetmore'sattribution of the "triumphof freedom"statement to the justice. See Storyto BerrienLetter (cited in note 13).

141 WilliamWetmore Story, Treatise on theLaw ofContracts (Charles C. Littleand James Brown, 1844). 142 WilliamStory, ed, 2 Lifeand Letters of Story at 392 (cited in note 139). 143Lofft 1 (GB, 1772). '44Prigg at 611. 145Id. 284 THE SUPREME COURT REVIEW [1994

Second, Story'sson argued that the decision favoredfreedom "becauseit promisedpractically to nullifythe Act of Congress,-it being generallysupposed to be impracticableto reclaimfugitive slaves in the freeStates, exceptwith the aid of State legislation, and Stateauthority."'" This analysiswas based on theassumption that withoutthe active aid of state authorities-justicesof the peace, sheriffs,and the like-masters would have been unable to actuallyremove a slave fromthe North. Story'sassertion that the federalgovernment had exclusivejurisdiction over fugitiveslave renditionand that state officialscould not be compelled by the federalgovernment to enforcethe law thus set the stage forstate withdrawalfrom aiding in theimplementation of theFugitive Slave Clause or of enforcingthe federallaw. WilliamStory's point here was again correctas faras it went. In his opinionStory conceded thatthere was a "differenceof opinion"as to "whetherstate magis- tratesare bound to act under [the FugitiveSlave Act]," but did notdecide theissue.147 It was certainlypossible to conclude,therefore, that the states could withdrawtheir support for the law. However, in his opinionStory also affirmedthat no "differenceof opinion"was "entertainedby thisCourt that state magistrates may, if theychoose, exercisethat authority, unless prohibitedby state legislation.'"148William WetmoreStory's argumentfor the "triumph of freedom"was tied to thislast point. If stateofficials did not enforcethe federallaw, no one could, and thus fugitiveslaves could be securein theirfreedom. Some northernjudges and legisla- torswould in facttake advantage of thispart of Story'sopinion to withdrawtheir support for enforcement of the federal law. Indeed, whetherStory intended the opinion to be a triumphof freedomor not, thispart of the opinionallowed some northernersto shape it intosuch a triumph.149 Third, WilliamWetmore argued that by "givingexclusive jurisdiction to Congress,power was put in the hands of the whole peopleto remodelthe law, and establish,through Congress, a legislationin favorof freedom;while, to permita concurrentor exclu-

46William Story, ed, 2 Lifeand Letters of Story at 393 (cited in note 139). 147Prigg at 622. 148Id. 149 Paul Finkelman,Prigg v Pennsylvaniaand NorthernState Courts: Anti-Slavery Use ofa Pro-SlaveryDecision, 25 Civ War History5 (1979). 6] STORY AND SLAVERY 285 sive jurisdictionto the States,would not only depriveall the free States of a voice in establishinga uniformrule throughoutthe country,guarded by the strictestlegal processes,but would enable each slave State to authorizerecaption, within its own bound- aries,under the mostodious circumstances,without any legal process, . . The faithfulson his father's because ."150 praised opinion "[b]y thisdecision, the question,as to fugitiveslaves, was made a nationalone, and open fordiscussion on thefloor of Congress.To the North was givena fullvoice on it."151

B. THE FAMILY STORY UNMASKED

The claimsof Joseph and WilliamWetmore for the antislavery thrustof Priggdo not comportwith the textof Story'sopinion, his careeras a judge, or his actionsafter the decision. 1. The localizationof slavery. The argumentthat Prigg localized slaveryis inconsistentwith the essence of William Wetmore Story's very defenseof the opinion and with the justice's career. As a lawyer,scholar, and judge, Storywas a committednationalist. His importantCommentaries on the Constitution152 was "themost influen- tial statementof constitutionalnationalism made in theNineteenth Century."153One aspect of Story'snationalism was his desire to createa uniformfederal common law. In Prigg,Story discovered a federalcommon law rightto recapturea slave. To understand the continuityof Priggwith the restof Story'sjurisprudence, it is necessaryto brieflyexamine his lifelongcommitment to a federal commonlaw. In 1812, Story silentlyopposed154 the outcomein UnitedStates v Hudsonand Goodwin,155where a bare majorityof the Court found thatthe nationalgovernment could not enforcethe commonlaw of crimes.A yearlater, in UnitedStates v Coolidge,156Story, acting as a CircuitJustice, deftly avoided Hudson and Goodwinin applying

150William Story, ed, 2 Lifeand Letters of Story at 394-95 (citedin note 139). 151Id at 101. 152Joseph Story, Commentarieson theConstitution of theUnited States (Hilliard, Gray, & Co., 1833). 153Newmyer, Justice Joseph Story at 182 (cited in note 1). 154Id at 101. iss UnitedStates v Hudsonand Goodwin,7 Cranch(11 US) 32 (1812). 156U.S. v Coolidge,25 F Cases 619 (CCD Mass 1813). 286 THE SUPREME COURT REVIEW [1994

federalcommon law to admiraltycases. The Supreme Court re- mainedunpersuaded by Story'sarguments, and reversedStory's circuitcourt decision in Coolidge,on the basis of Hudsonand Good- win.157 This reversalunderscores Story's early commitmentto a federalcommon law, in spiteof the Court majority. Unable to convincethe Court of the importanceof a federal commonlaw, Storyturned to theCongress. After Hudson and Good- win, Storyurged Congress to pass legislationto "give theJudicial Courtsof the United States power to punishall crimesand offenses againstthe Government,as at commonlaw.""18 That year Story sent a draftof such legislationto the AttorneyGeneral, and in 1818sent a similarproposal to SenatorDavid Daggettof Connecti- cut.159In 1825,Congress amended the federal criminal code, based on a draftthat Story provided.'16 In 1842, he wroteSenator John MacphersonBerrien urging a recodificationof all federalcriminal law and the extensionof the commonlaw to all federaladmiralty jurisdiction.161 Story's attemptsat creatinga federalcommon law of crimes parallelhis effortsin creatinga federalcommon law forcommer- cial cases. In 1812, while ridingcircuit, Story applied general commonlaw to a diversitycase.162 Thirty years later,in Swiftv Tyson,'63Story would gain the supportof the Court to create a generalfederal common law forcivil litigation. Significantly, Story wrotethe opinionin thatcase in the same termthat he wrotethe Court's opinion in Prigg. Swiftis the firstcase reportedin that volumeof Peters'reports, and Priggis the last case reportedin the volume.

157 UnitedStates v Coolidge,1 Wheat(14 US) 415 (1816). 1isStory to NathanielWilliams, Oct 8, 1812, reprintedin WilliamStory, ed, 1 Lifeand Lettersof Story at 243 (citedin note 139). 159 Storyto Daniel Webster,Jan 4, 1824,reprinted in WilliamStory, ed, 1 Lifeand Letters ofStory 435 at 437; 2 Lifeand Letters at 401 (citedin note 139). Newmyer,JusticeJoseph Story at 103 (cited in note 1). and 2 and Letters 60 WilliamStory, ed, 1 Life Lettersof Story at 437, 439-41; Life ofStory at 403-04 (cited in note 139); "An Act moreeffectually to providefor the punishmentof certaincrimes against the United States,and forother purposes," Act of March 3, 1825, 4 Stat 115.

161 Storyto Berrien,Feb 8, 1842, WilliamStory, ed, 1 Lifeand Letters of Story at 402-03 (citedin note 139); but see also Storyto BerrienLetter (cited in note 13). 162 See VanReimsdyk v Kane, 28 F Cases 1062 (CCD RI, 1812), discussedin Newmyer, JusticeJoseph Story at 100 (citedin note 1). "16Swift v Tyson,16 Peters(41 US) 1 (1842). 6] STORY AND SLAVERY 287

Thus, Prigg,which nationalizedslavery and made it part of a federalcommon law, is consistentwith Story'slifelong commit- ment to a nationalisticapproach to law. Despite his dislike for slavery,in Prigghe could not resistan opportunityto nationalize slaveryand create a federalcommon law rightof recaptionfor slaves,just as he had triedthroughout his careerto expandfederal commonlaw in otherareas. Thus, in defendinghis discoveryof a constitutionallyprotected common law rightof recaption,Justice Storydeclared: We havesaid that the clause contains a positiveand unqualified recognitionof theright of theowner in theslave, unaffected by anystate law or regulationwhatsoever, because there is no qualificationor restrictionofit to be foundtherein. . . . If this be so, thenall theincidents to thatright attach also; the owner must,therefore, have the right to seizeand repossess the slave, whichthe local laws of his own state confer upon him as property;and we all knowthat this right of seizureand recaption is universallyacknowledged in all theslaveholding states. This is hardlya localizationof slavery.On the contrary,it is a specificdeclaration that some aspectsof the law of slaveryshould be imposedon the North. This dovetailedwith his assertionthat "the stateof slaveryis deemedto be a meremunicipal regulation, foundedupon and limitedto the rangeof the territoriallaws."165 Having made thispoint in his opinion,Story then noted thatthe Constitutionfundamentally altered this principle of law. "The [fugitiveslave] clause was, therefore,of the last importanceto the safetyand securityof the southernstates; and could not have been surrenderedby themwithout endangering their whole propertyin slaves. The clause was accordinglyadopted intothe Constitution by the unanimousconsent of the framersof it; a proofat once of its intrinsicand practicalnecessity."166 Ironically,William Wetmore Story's own praisefor his father's decisionundercut his localizationargument. William's third argu- mentwas thatby makingthe debate over fugitive slaves "a national one," his fathergave the North "a full voice on the debate."167

'64Prigg at 612. 165Id at 611. 166Id at 612. 167 WilliamStory, ed, 2 Lifeand Lettersof Story at 395 (cited in note 139). 288 THE SUPREME COURT REVIEW [1994

In defendingPrigg, William WetmoreStory explained that the opinion conformsto thoseprinciples of interpretationin favor of the FederalGovernment, which appear in his familyletters, and aredeveloped in all hisother constitutional opinions. It affirms thedoctrine, that the Constitution creates, not a mereconfeder- ationof States, but a governmentofthe people, endowed with all powersappropriate or incidentalto carryout its provisions, althoughnot expressly surrendered by theStates.1 Here the youngerStory is correct.But, in recognizinghis father's lifelongcommitment to judicialnationalism, the son undercuthis argumentthat Prigg localized slavery. 2. Thepractical nullification ofthe federal law. The argumentfor practicalnullification the fugitiveslave law is the strongestone in Story'sfavor. Indeed, the decision, in theend, did lead to a practical nullificationof the federallaw. AfterPrigg, many northern judgesrefused to hearfugitive slave cases, freestate officials refused to help claimants,and some legislaturesactually prohibited state supportfor the federallaw.169 However,it is importantto makea distinctionbetween what state officialsdid afterPrigg and what Storyintended in his decision. It would have been completelyout ofcharacter for Story to have triedto sabotagehis own decision.This simplywas not his style. As RobertCover has argued,this would havebeen "a trulyextraor- dinaryameliorist effort.""17 Similarly, as Kent Newmyer noted, "thereare serious problems"with this analysis."171It is hard to believethat someone who devotedhis entirelife to the law-and most of it to constitutionallaw and the Supreme Court-would late in his career sabotageone of his most importantnationalist opinionsin hopes of achievinga secretgoal. Second, Storydid notnecessarily want to removeall statepartic- ipationin the returnof fugitiveslaves. It is truethat Story argued forexclusive federal power to legislateabout fugitiveslave rendition. But, Story did not rule out active, and even legislatively

'68 Id at 392. 169Finkelman, Prigg v Pennsylvaniaand Northern State Courts (cited in note 149), and Mor- ris, FreeMen All (citedin note 19). 170Cover, Justice Accused at 241 (citedin note 10). 71 Newmyer,Justice Joseph Story at 377 (citedin note 1). 6] STORY AND SLAVERY 289 creative,state participation in thecapture and incarcerationof run- away slaves. He wrote: We entertainno doubtwhatsoever, that the states, in virtueof theirgeneral police power, possess full jurisdiction to arrest and restrainrunaway slaves, and remove them from their bor- ders,and otherwise to securethemselves against their depreda- tionsand evil example,as theycertainly may do in cases of idlers,vagabonds, and paupers.172 In otherwords, Story hoped the stateswould act as slave catchers, arrestingand incarceratingfugitives until they could be claimed underthe federallaw by some putativemaster or master'sagent. Tied to this invitationfor state legislativeaction, Story made clear his hope thatstate officers would enforcethe federal law. He declared:"As to the authorityso conferredupon statemagistrates, while a differenceof opinionhas existed. . . none is entertained by this[C]ourt, that state magistrates may, if they choose, exercise thatauthority ... ."173 This is consistentwith his careerof favoring a strongnational government and hoping that the states would supportthe federal government, especially on thisissue. Storywas a thoroughgoingjudicial nationalist.Prigg could be a triumphof freedomonly if northern states refused to enforcefederal laws and thenpassed legislationin oppositionto thenational government.174 But everythingin Story'sjudicial and earlierpolitical career suggests that he hated states'rights claims more than even slavery, because states'rights claims were even a greaterthreat to theUnion and the constitutionalnationalism he held dear. Priggmay have pittedStory's hostility to slaveryagainst his lifelongcommitment to constitutionalnationalism. If so, his nationalismeasily won. Third, the "triumphof freedom"analysis assumes that Story not only dislikedslavery, but was somehowrather a secretaboli- tionist.Any abolitionistthoughts Story had were surelykept se- cret. Story'sbiographer argues for the justice's"hatred of slavery" and "his sincerebelief in Christianmorals and his generalsense of

172Prigg at 625. 173Id at 622. 174 This would in facthappen, and would lead to northernassertions of states'rights. See the argumentsof Ablemanv Booth,62 US (21 How) 506 (1859). See also Finkelman,Prigg v Pennsylvaniaand Northern State Courts (cited in note 149),and Paul Finkelman,States Rights Northand Southin AntebellumAmerica, in KermitHall and James W. Ely, Jr., eds, An UncertainTradition: Constitutionalism and theHistory of the South 125-58 (Athens,Ga, 1989). 290 THE SUPREME COURT REVIEW [1994 decency,"'17which slavery offended. Surely Story disliked slavery, as did mostnortherners. But Storywas not an abolitionist;rather, he opposed the abolitionistsbecause theirmovement undermined the Union. Fourthis the suspectsource of this analysis.It does not come fromStory himself, or a disinterestedsecond party to whom Story made such a claim. Rather,the claim began with the writingsof JusticeStory's son, WilliamWetmore. The dutifulson was more committedto antislaverythan his father,and may have hoped to salvagethe justice'sreputation by thisposthumous cleansing of the interpretationof Prigg.As Kent Newmyernotes, when lookingat the evidencethere is "thesuspicion that a biographermust have of an apologiawritten by a lovingson.""176 The remainingevidence undermining the "triumphof freedom" argumentheightens these suspicions.The same evidencedemol- ishes the thirdleg of the "triumphof freedom"argument: that Priggprovided the North with an opportunityto help shape the federalgovernment's relationship to slaveryby remodelingthe law in favorof freedom.This evidencesuggests both that Story's goal in Priggwas to nationalizefugitive slave rendition,and thathis son deliberatelyhid informationwhich underminedthe "triumphof freedom"argument. 3. Thepower to remodelthe law infavor of freedom. Technically, William WetmoreStory was right.Prigg opened the door for a reconsiderationof the federalrole in the returnof fugitiveslaves. An abolitionist-dominatedCongress could have repealedthe 1793 law withoutreplacing it, and leftslaveowners with neitherstate nor federallaw at theirdisposal. Or, a more moderateCongress could have provideddue processprotections for free blacks, while supportingthe right of masters to capturerunaways. A new federal law mighteven have createda statuteof limitationson the capture of fugitiveslaves, thus protectingpeople like MargaretMorgan. Theoretically,Congress could have done all thosethings. Realistically,all of these thingswere impossible.In 1842, as I have already noted, slaveholdersand theirnorthern allies domi-

175Newmyer, Justice Joseph Story at 373 (cited in note 1). Barbara Holden-Smithargues that "Story's antislaveryreputation has been exaggerated."Holden-Smith, 78 Cornell L Rev at 1086 (cited in note 10). "76 Newmyer,Justice Joseph Story at 373 (citedin note 1). 6] STORY AND SLAVERY 291

natedthe Americanpolitical system. One halfof the U.S. Senate came fromslave states.This alone made it impossibleto pass any antislaverylegislation. On top of this,between 1800 and 1860 every presidentbut JohnQuincy Adams was neithera slaveholder, formerslaveholder, nor a northerndemocratic doughface who owed his politicalsurvival to the South. EventuallyWilliam Wetmore Story's hope thathis father'sopinion could lead to a remodelingof federallaw did occur. But it was not until after1861, when eleven slave stateshad leftthe Union and antislaverywas tied to Civil War policy. Even if the politicsof mid-centuryAmerica had allowed a pro- freedomremodeling of thefugitive slave law, JosephStory did not want this to happen, and his son knew this to be true when he compiledhis father'sletters. Shortlyafter the Court decided Prigg,Story wrote to Senator JohnMacpherson Berrien of NorthCarolina about variouslegisla- tivematters. The letterbegan witha discussionof theircollabora- tion on pieces of legislationinvolving federal criminal law and bankruptcy.This evidencesuggests the close relationshipStory had with Berrien,and thus makeshis next suggestioneven more important.Story then turned to a draftbill on federaljurisdiction that he had sent to Berrien.He remindedBerrien that he had suggestedin thatproposed bill thatin all cases,where by theLaws of theU. States,powers wereconferred on StateMagistrates, the same powers might be exercisedby Commissioners appointed by the Circuit Courts. I was inducedto makethe provision thus general, because State Magistratesnow generally refuse to act, & cannotbe compelled to act; and theAct of 1793respecting fugitive slaves confers thepower on StateMagistrates to act in deliveringup Slaves. You saw in thecase of Prigg. . . how theduty was evaded, or declined.In conversingwith several of my Brethren on the SupremeCourt, we all thoughtthat it wouldbe a greatimprovement,& wouldtend much to facilitatethe recapture of Slaves,if Commissionersof the CircuitCourt were clothed withlike powers.177 Essentially,Story presentedSenator Berrienwith the solution to the debate over federalexclusivity and the role of the statesin enforcingthe FugitiveSlave Act. The federalgovernment would

177 Storyto BerrienLetter (cited in note 13). 292 THE SUPREME COURT REVIEW [1994

supply the enforcementmechanism, through the appointmentof commissioners,and theenforcement would be uniformthroughout the nation.The fundamentalproblem with this idea was how to enactit in a Congresswhere northerners, who were at least some- whatopposed to slavery,controlled the House of Representatives. Story,the justice,had the answerfor Berrien, the politician: This mightbe donewithout creating the slightest sensation in Congress,if the provision were made general . . . . It would thenpass without observation. The Courtswould appoint com- missionersinevery county, & thusmeet the practical difficulty nowpresented by therefusal of State Magistrates. It mightbe unwiseto provokedebate to inserta Specialclause in thisfirst section,referring to thefugitive Slave Act of 1793.Suppose youadd at theend of the first section: "& shall& mayexercise all thepowers, that any State judge, Magistrate, or Justice of thePeace mayexercise under any other Law or Laws of the UnitedStates."'78 This was not the letterof a man hopingfor a triumphof freedom. This was the letterof a justicecommitted to the aggrandizement of federalpower and the returnof fugitiveslaves. Here he could have both. This letteris doubly damningfor Story and the "triumphof freedom"analysis. In the collectionof his father'sletters, Story's son reprintedthe firstpart of this letter,which dealt with bank- ruptcylaw, but failedto reprintthe material quoted above.179 Wil- liam WetmoreStory deliberately hid the evidencewhich proved thathis fatherneither thought Prigg was a "triumphof freedom" nor wantedit to be such. Priggwas a triumphof slavery,and the authorof the opinion of the court knew so. He also wanted to insurethat his handiworkwould be implemented.

VI. JOSEPH STORY AND JUDICIAL NATIONALISM

JosephStory was nevera friendof slavery.During the debates over the MissouriCompromise-more than a decade before theabolitionists appeared on thenational scene-Story had spoken out againstthe expansion of the institutionwest of the Mississippi.

178 Id. 179 WilliamStory, ed, 2 Lifeand Letters of Story at 404-05 (cited at note 139). 6] STORY AND SLAVERY 293

In the 1820s "no otherNew England statesmen. . . was more fearfulof Southernaggression or moredetermined to resistit."180 His circuitcourt opinion in UnitedStates v La JeuneEugenie,181 a case involvingthe illegal Africanslave trade,and his chargeson the slave tradeto New Englandgrand juries,182 "revealed Story's deep abhorrenceof the slave tradeand slavery."183In the 1830s he privatelyopposed Texas annexation,and secretlyadvised public opponentsof the annexation,184considered it "grosslyunconstitu- tional,"'18and continuedthis opposition right up untilthe annexation took place in 1845. Similarly,although no supporterof the abolitionistmovement, Story privately argued that the Gag Rules passed by Congressto preventthe readingof abolitionistpetitions were "in effecta denial of the constitutional of right petition.'"186 As Story'sbest biographerhas amplydemonstrated, the justice "had spokenout consistentlyon and offthe bench againstslavery and the slave trade."187He was not an abolitionist-indeed, the Garrisoniansoften vilified him88 -but he would happilyhave seen the institutioncome to an end. Why then,did thisjustice from Massachusetts-who personally foundslavery abhorrent-take an unnecessarilypro-slavery position in bothPrigg and his treatiseCommentaries on the Constitution? The answeris rootedin Story'sprofound constitutional nationalism. In his defenseof Prigg,Justice Story's son noted that the FugitiveSlave Clause "is in the nationalConstitution, and is a nationalguarantee.'"189 Story himself made thesame pointin Prigg, notingthat the claim to a fugitiveslave was a "a case 'arisingunder the Constitution'" moreor less obligatingCongress to "prescribe

180 Newmyer,Justice Joseph Story at 350-51 (citedin note 1). 181 46 F Cases 832 (CCD Mass, 1822). 182 JosephStory, A Chargeto the GrandJuries inBoston, and Providence, 1819 (Boston, 1819), reprintedin Paul Finkelman,ed, 1 TheAfrican Slave Trade (Garland, 1988). For thediscussion of a similarcharge in 1838, see Newmyer,Justice Joseph Story at 345 (cited in note 1). 183Newmyer, Justice Joseph Story at 348 (citedin note 1). 184 Id at 350-51. 185 Storyto Ezekiel Bacon, April 1, 1844, in 2 Lifeand Letters of Story at 481. 186Story to HarrietMartineau, Jan 19, 1839, in William Story,ed, 2 Lifeand Lettersof Storyat 307 (cited in note 139). 187Newmyer, Justice Joseph Story at 346 (citedin note 1). 188 Id at 345-46. 189 WilliamStory, ed, 2 Lifeand Letters of Story at 386 (citedat note 139). 294 THE SUPREME COURT REVIEW [1994 the mode and extentin which it shall be applied, and how, and underwhat circumstancesthe proceedingsshall afforda complete protectionand guarantyto the right."'" In essence, the justice believedthat the Constitutionrequired him to protectthe rightof mastersto recoverfugitive slaves. In Prigg,Story found that Con- gresshad the exclusivepower to regulatethe renditionof fugitive slaves.This is one ofthe earliest examples we havein constitutional law of thepreemption doctrine.191 Prigg gave Storyan opportunity to use thisdoctrine to furtherstrengthen the nationalgovernment. It was an opportunityhe could not pass up. The cost of thatgain was the freedomof some freeblacks and fugitiveslaves. But, it was a costStory was willingto pay, as longas he could explainit by retellingin his own way thestories he toldabout the Constitutional Convention,the precedentsof thestate courts, the lifeof Margaret Morgan,and his own decision.

190Prigg at 616. 191Another example might be Gibbonsv Ogden,22 US (9 Wheat) 1 (1824). In a slightly differentcontext, T. AlexanderAleinikoff notes a connectionbetween "the early conflict overthe scope of the commercepower" and "theexplosive question of Congress'spower to regulatethe internalslave trade." He believesthis "helps establishlinkages between the nationalistopinions of ChiefJustice Marshall in Gibbonsv Ogdenand JusticeStory in Prigg v Pennsylvania... ." T. AlexanderAleinikoff, A Casefor Race-Consciousness, 91 Colum L Rev 1060 at 1086-87 (1991).