The University of Chicago Press The Supreme Court Review

Story Telling on the Supreme Court: Prigg v Pennsylvania and Justice Joseph Story's
Judicial Nationalism
Author(s): Paul Finkelman and Joseph Story
Source: The Supreme Court Review, Vol. 1994 (1994), pp. 247-294
Published by: The University of Chicago Press
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PAUL FINKELMAN
STORY TELLING ON THE SUPREME
COURT: PRIGG v PENNSYLVANIA AND
JUSTICE JOSEPH STORY'S JUDICIAL

NATIONALISM
Few scholars dispute Justice Joseph Story's en

for American law. He was unquestionably "on
jurists and legal theorists."' His numerous Comm
subjects became fundamental textbooks and re
generation of lawyers and helped create a nat
His vast legal scholarship made him a "one-ma
Company."2 As a Harvard professor he helped
segment of the antebellum elite bar and, mor
Paul Finkelman is Visiting Associate Professor of Law, Chica

AUTHOR'S NOTE: I thank Raymond O. Arsenault, Bruce
James O. Horton, Allison Lindsey, Michael McReynolds, Way
moto, Emily Van Tassel, and Peter Wallenstein for their input on
of the Harford County Historical Society, the York County Hi
land Hall of Records, the Maryland Historical Society, and the St
nia for their help. The research for this article was partially fu
National Endowment for the Humanities, the American Philo
History Department of Virginia Tech.
1 Kent Newmyer, Supreme Court Justice Joseph Story: Statesman o
versity of North Carolina Press, 1985). This does not, however, m
judicial scholar. For a discussion of the weakness of Story's sch
Joseph Story and the Comity of Errors: A Case Study in the Conflict of
Press, 1992).
2 Newmyer, Justice Joseph Story (cited in note 1).
? 1995 by The University of Chicago. All rights reserved.

0-226-36178-0/95/1994-0006$02.00
247
248 THE SUPREME COURT REVIEW [1994
for the development of serious legal edu

on everyone's all time hit parade of Supr
Story was something of a "lawyer's" ju
well as his learned treatises, helped rev
Most of his important opinions involved
dure or commercial law, rather than great
better or worse, he spent most of his c
Chief Justice John Marshall, who assigned
major public policy issues to himself.4
Story usually fared no better when it ca
important opinions. In his last decade on
Justice Roger B. Taney, Story often found
on major policy questions,s but was still ch
of the court in major technical cases, su
most important procedure case of the nine
One critical exception, where Story wrot
an issue of politics and statecraft, was P
understand Story, and mid-nineteenth-c
one has to come to terms with Prigg. This
Story,9 dislikes him,"1 or is simply am
coming to terms with Story's Prigg opi
3 A. Leon Higginbotham, An Open Letter to Clarence Thom

140 U Pa L Rev 1007, citing Albert P. Blaustein and Roy
Justices: Statistical Studies in the Supreme Court of the Uni
SProfessor David Currie's iconoclastic statement mak
Marshall's insistence on writing everything himself,
known as 'John Marshall and the Six Dwarfs.' " David Cur
A Preliminary Inquiry, 50 U Chi L Rev 466, 469 (1983).
' For example, Proprietors of the Charles River Bridge v Pr
Peters (36 US) 420, 581 (1837) (Story dissenting).
6 16 Peters (41 US) 1 (1842).
STony Freyer, Harmony and Dissonance: The Swift and
(New York University Press, 1981). Without Swift, first
be unable to subject students to weeks of understanding
Co v Tompkins, 304 US 64 (1938).
8 16 Peters (41 US) 539 (1842).
9 Christopher L. M. Eisgruber, Joseph Story, Slavery, a
American Constitutionalism, 55 U Chi L Rev 273 (1988).
"0 Robert M. Cover, Justice Accused: Antislavery and th
Press, 1975); see more recently Barbara Holden-Smith, L
Justice Story, Slavery and Prigg v Pennsylvania, 78 Corn
" Newmyer, Justice Joseph Story (cited in note 1).
6] STORY AND SLAVERY 249
case in which an otherwise sc

humane jurist wrote an opinio
based on inaccurate historical
need not have been, and inhu
in its long-term consequences
proslavery opinion written by
opposed slavery.12 Moreover, i
we find that either Story, or h
Story, sought to cast the deci
justice himself was working h
ment the proslavery implication
Story's primary goal in Prig
national government. Story w
expense of civil liberties, fund
accepted concepts of antebellu
In analyzing Prigg it is import
ization of power in the 1840s m
holders and their proslavery
lived in a Union dominated by
12 Holden-Smith, 78 Cornell L Rev (cited

of Story's opposition to slavery. I think i
morally offensive, the way virtually all n
little affect on his jurisprudence after the
13 See Story to John Macpherson Berrie
Papers, Southern Historical Collection, U
Story to Berrien Letter [cited in note 13
Story and the American Constitution 262n
discussed at note 23.
14 The term was an insult to describe "northern men with southern principles." In essence,
a "doughface" had a face of dough that southern politicians shaped as they wished.
"Doughface Democrats" were northern Democrats who voted to support proslavery posi-
tions.
15 By 1842, when Story wrote Prigg, the United States had only had three northern
presidents-all one-term presidents-and only two-John Adams and John Quincy Ad-
ams-had been even mildly antislavery. Martin Van Buren, although a New Yorker, was
a classic "doughface." Six presidents (Washington, Jefferson, Madison, Monroe, Jackson,
and Tyler)-including all five antebellum two-term presidents-had been slaveowners dur-
ing their term of office; Harrison, a native of Virginia, had been a slaveowner for much of
his adult life, and only ceased owning slaves when he failed, as territorial governor of
Indiana, to get Congress to allow slavery in the old Northwest. On Harrison's attempts to
bring make slavery legal in the old Northwest, see Paul Finkelman, Evading the Ordinance:
The Persistence of Bondage in Indiana and Illinois, 9 J Early Republic 21-52 (1989), and Paul
Finkelman, Slavery and the Northwest Ordinance: A Study in Ambiguity, 6 J Early Republic
343-70 (1986).
ery Supreme Court,16 and more often th

trolled by southern politicians." Similarly, s
lum America often meant the right of north
slaves,18 to protect free blacks from kidnap
extradition to the South of whites or bla
escape,20 and even the right of northerners
tion of fugitive slaves, if it could be done u
law.21 Thus, we must not look at Story's
dence through the lens of a late twentieth
with three Civil War amendments (and va
and statutes) that allow or obligate the natio
tect civil rights and civil liberties. On the co
an age when federal power meant federal su
Constitution22 implemented by a proslavery
not only knew all this, but saw ways that th
16 As of 1842, when the Court heard Prigg, 19 of the 29

Court had been southerners. Cumulatively, up to 1842 sout
of 209 years on the court, while northerners had served on
southerners outnumbered northerners in every term, excep
to 1837. Significantly, the Court heard no major cases invo
In 1842, Story served on a court with five southerners and
17 From 1789 to 1842, there were 16 northern and 25 sou
of the Senate; more significantly, from 1801 to 1842, 2
southern, and only 5 were northern. Similarly, before 1
were from the North. But from 1801 until 1842, there wer
3 northern speakers.
18 Paul Finkelman, An Imperfect Union: Slavery, Federalism,
Carolina Press, 1981).
19 Thomas D. Morris, Free Men All: The Personal Liberty
(Johns Hopkins University Press, 1974).
20 Paul Finkelman, States Rights North and South in Antebe
James W. Ely, Jr., eds, An Uncertain Tradition: Constitutiona
125-58 (Athens, Ga, 1989); Paul Finkelman, The Protection
York, 34 Civ War History 211-34 (1988); and Paul Finkelman
Criminal Extradition in Antebellum America: The New York
in Hermann Wellenreuther, ed, German and American Constitu
tion, and Historical Realities 293-327 (Berg, 1990).
21 See, for example, In Re Booth, 3 Wis 1 (1854); Ex parte
Booth and Rycraft, 3 Wis 157 (1855); Jenni Parrish, The B
War, 29 Willamette L Rev 237 (1993). For an earlier exam
Cases 322 (CCD Ind, 1850); Paul Finkelman, Fugitive Slave
and the Value ofJustice Delayed, 78 Iowa L Rev 89-141 (199
22 Paul Finkelman, Slavery and the Constitutional Conventio
in Richard Beeman, Stephen Botein, and Edward C. Carte
Origins of the Constitution and American National Identity 1
lina Press, 1987). On the antislavery analysis of the Cons
The Sources of Antislavery Constitutionalism, 1760-1848 (Co
might use his Prigg opinion to

aspects of the Constitution.23
In the end Story favored nat
even if it meant strengthenin
indifference to the civil liberties of northerners and to the fate of
free blacks (as well as fugitive slaves) living in the North.
One final caveat is in order. It might be easy to cast this analysis
of Story and his Prigg opinion as anachronistic-as trying to hold
Story to the standards of the late twentieth century. In an age
when most scholars have only recently rediscovered the importance
of race for American history, it is important to understand that the
following analysis is not based on our own contemporary notions
of what is either important or correct. Rather, this analysis begins
with the assumption that to understand or criticize Prigg we must
view it within the context of the mid-nineteenth century. In doing
so we find that Story's contemporaries and friends condemned the
opinion, and that the opinion ran counter to the conclusions of
distinguished state judges. The facts of the case, contemporary
concepts of justice, and the language of the Constitution itself of-
fered Story an opportunity to write a different opinion. That he
chose not to do so-that he shaped both constitutional history and
the "facts" of the case to support and even compel the opinion he
wrote-suggests that his opposition to slavery, whatever it might
once have been,24 had withered away to a theoretical abstraction
that denied the reality of mid-century America.
Despite Prigg, it is possible to remain in awe of Story's scholarly
productivity, his skills as a mentor, and his significance as a great
23 Shortly after the Court decided Prigg, Story wrote to Senator John Macpherson Berrien
of North Carolina to discuss a draft bill on federal jurisdiction that he had sent to Berrien.
He reminded Berrien that he had suggested in that proposed bill
that in all cases, where by the Laws of the U. States, powers were conferred on State
Magistrates, the same powers might be exercised by Commissioners appointed by
the Circuit Courts. I was induced to make the provision thus general, because
State Magistrates now generally refuse to act, & cannot be compelled to act; and
the Act of 1793 respecting fugitive slaves confers the power on State Magistrates
to act in delivering up Slaves. You saw in the case of Prigg ... how the duty was
evaded, or declined. In conversing with several of my Brethren on the Supreme
Court, we all thought that it would be a great improvement, & would tend much
to facilitate the recapture of Slaves, if Commissioners of the Circuit Court were
clothed with like powers.
Story to Berrien Letter (cited in note 13).
24 See Newmyer, Justice Joseph Story (cited in note 1), and Eisgruber on how Story was
antislavery in the beginning of his life.
Supreme Court justice. Prigg, however, f

Story and his nationalistic jurisprudence as
antebellum court in shaping the politics of
half before Dred Scott.25
I. A PROSLAVERY DECISION
In 1837, Nathan S. Beemis, Edward Prigg, and two other

men traveled to Pennsylvania, where they seized as fugitive slaves
Margaret Morgan and her children. They then brought the blacks
back to Maryland without first complying with all of the require-
ments of an 1826 Pennsylvania law regulating the return of fugitive
slaves.26 This statute, known as a personal liberty law, required
that anyone removing a black from the state as a fugitive slave first
obtain a certificate of removal from a state judge, justice of the
peace, or alderman.
The York County prosecutor immediately sought indictments
against the four men for kidnapping and failing to follow the Penn-
sylvania law. After protracted negotiations between Maryland and
Pennsylvania, the governor of Maryland agreed to allow the extra-
dition of one of the four slave catchers, Edward Prigg. Prigg was
subsequently convicted of kidnapping for removing Margaret Mor-
gan and her children from Pennsylvania without obtaining a cer-
tificate of removal from a state magistrate. Prigg appealed to the
U.S. Supreme Court, and in 1842 the Court overturned his con-
viction.
In his Opinion of the Court, Justice Joseph Story reached five

major conclusions: (1) that the federal fugitive slave law of 179327
was constitutional; (2) that no state could pass any law adding
additional requirements to that law which could impede the return
of fugitive slaves; (3) that the Constitution provided a common law
right of recaption-a right of self-help-which allowed a slave-
25 Dred Scott v Sandford, 19 How (60 US) 393 (1857).

26 "An Act to give effect to the provisions of the constitution of the United States relative
to fugitives from labor, for the protection of free people of color, and to prevent Kidnap-
ping," ch L, Pennsylvania Session Law, 1826 150 (1826) (hereafter Pennsylvania Personal
Liberty Law); on the passage of the act itself, see William R. Leslie, The Pennsylvania Fugitive
Slave Act of 1826, 13 J Southern History 429 (1952), reprinted in Paul Finkelman, ed, 6
Articles on American Slavery: Fugitive Slaves 211 (Garland, 1989).
27 "An Act Respecting Fugitives from Justice and Persons Escaping from the Service of
Their Masters," 1 Stat 302 (1793) (Hereafter cited as Fugitive Slave Act).
owner (or an owner's agent) t

and bring that slave back to
the provisions of the federal
law could interfere with such a
to, but could not be required
(5) that no fugitive slave was
or trial beyond a summary p
seized was the person describ
provided by the claimant. H
comply with even this minim
of common law recaption, un
This sweeping opinion under
living in the North, endanger
had escaped to freedom, and th
ity of northern society. Thes
of Story's opinion. First, by s
Liberty Law, and by extensio
states, Story left the norther
legal authority to prevent th
further endangered blacks in t
stitution gave a master a right
his slave" anywhere in the n
statutory law.28
Story claimed that the fugitiv
plates the existence of a posit
the owner of the slave, which
way qualify, regulate, control
we have not the slightest hesi
the constitution, the owner o
authority, in every state in th
his slave, whenever he can do
peace or any illegal violence. I
this clause of the constitution m
itself, and to require no aid fro
This conclusion was extraordin

could seize any black and rem
28 Prigg at 613.
29 Id at 612.
30 Id at 613.
any state interference or even a hearing b

federal magistrate. This removal without a
dence or the need to show any proof of the
was legal as an act of self-help, as long as n
occurred. One might presume that a "brea
always occur when a black, especially a fr
fugitive slave. However, for both logical and
was not always the case.
In his dissent, Justice McLean pointed ou
lems of limiting Story's right of self-help
there was no breach of the peace. McLean no
opinion, "the relation of master and slave
laws of the state, to which the slave may h
is found." Thus, McLean reluctantly conclu
ter has a right to seize and remove the slave,
commit no breach of the peace, by using all
accomplish his object."31 In other words, Mc
Story's opinion no amount of violence a
would be illegal. Using Story's logic, it w
of the peace for a master to take his slave by
this force be considered "illegal violence" as l
against a slave or an alleged slave.
There was also a practical problem. Seizur
lated areas could be accomplished witho
breach of the peace. Once a black was shac
perhaps beaten into submission, travel from
could be accomplished without any obviou
If state officials could not stop a white t
chains, then kidnapping of any black c
plished. Under such a rule anyone, especia
kidnapped and enslaved. Kidnappings of t
enactment of Pennsylvania's 1826 Personal
quiring state judicial supervision of fugitive
sylvania hoped to prevent such abuses. But b
sylvania's law, and by extension similar laws
31 Id at 668 (McLean dissenting).

32 Leslie, 13 J Southern History at 429 (cited in note 26). L
the adoption of this law, five black children were kidnap
slaves. Three were eventually returned to their families, bu
left the North powerless to pre

over, by deciding that master
lowed whites to seize any bla
any proof of their status as slav
Story's opinion effectively ma
the nation. In the South, race
and by giving masters and sl
recaption, Story nationalized
catchers could operate in the
seized person's slave status.
175,000 free blacks in the Nor
In Prigg, Justice Story shaped
tion, relevant precedents, and
opinion. He created a mythol
clause that legitimized his har
the existing case law, or ignor
larly, he ignored or misstated i
gan and her children that mig
in the case. These were the sto
told. By examining these tales,
to Story's sweeping opinion up
and simultaneously striking
Liberty Law.
II. THE FIRST STORY: THE FUGITIVE SLAVE CLAUSE AND THE
BARGAIN OF 1787
After summarizing its procedural history, Story acknowl-

edged the importance of the case. "Few questions which have ever
come before this Court" he wrote "involve more delicate and im-
portant considerations; and few upon which the public at large may
be presumed to feel a more profound and pervading interest."34 For
Story the greatest danger of this constitutional minefield was its
potential for disruption of the Union. His lifetime goal as a jurist,
scholar, teacher, and politician was to preserve national harmony
and to strengthen the national government.
In Prigg he could accomplish both goals if he could give the
" See generally, Paul Finkelman, The Crime of Color, 67 Tulane L Rev 2063 (1993).
34 Prigg at 610.
South a result it wanted and somehow convince the North that the
Constitution dictated this result. The result was a creative, but
historically inaccurate, original intent analysis of the Constitution's
Fugitive Slave Clause.
A. STORY'S HISTORY OF THE FUGITIVE SLAVE CLAUSE
Story hoped to persuade the North that his opinion was correct
by elevating the Fugitive Slave Clause to a matter of the highest
constitutional order. To do this, he made two important historica
arguments. First, he asserted that the Fugitive Slave Clause wa
central to the compromises over slavery necessary for the adoption
of the Constitution. Second, Story argued that this was well under-
stood during the debates over ratification. In fact, both of thes
arguments are historically suspect. But, before considering wha
actually happened at the Convention and during the ratification
process, it is necessary to examine Story's arguments.
1. Story's history of the drafting of the clause. With a tone of authority
Story wrote:
Historically, it is well known, that the object of this clause was

to secure to the citizens of the slaveholding states the complete
right and title of ownership in their slaves, as property, in every
state in the Union into which they might escape from the state
where they were held in servitude. The full recognition of this
right and title was indispensable to the security of this species
of property in all the slaveholding states; and, indeed, was so
vital to the preservation of their domestic interests and institu-
tions, that it cannot be doubted that it constituted a fundamen-
tal article, without the adoption of which the Union could not
have been formed.35
He then elaborated on this argument. He compared the Fugitiv

Slave Clause to the Three-Fifths Clause and the protection of th
African slave trade as one of the fundamental bargains over slavery
at the Convention. Story argued that at the Convention "several
of the states "required as a condition, upon which any constitution
should be presented to the states for ratification, a full and perfect
security for their slaves as property, when they fled into any o
the states of the Union.""''36 He asserted that the southern demand
3 Id at 611.
36 Id at 638-39.
for a Fugitive Slave Clause, alo

portion of slaves with the whit
Congress, and the importation o
of years; were the great obstacl
tion.""37 The compromises on
central to the constitutional b
it was well understood, that t
solved, without a constitution b
not as interpretation, but as inc
as they were. They cannot b
what was done; and revere the m
politically, upon what was do
to slaves had been accomplishe
forming a constitution was rem
history, the Fugitive Slave Clau
of the Constitution and the w
2. Story's history of ratificatio
tion was Story's briefer histo
that the "provision in respect
was "a guarantee of a right of p
they might be found in the U
to preclude any analysis that
complex interpretation of the c
was well understood at the time of ratification.
The Constitution was presented to the states for adoption, with

the understanding that the provisions in it relating to slaves
were a compromise and guarantee; and with such an under-
standing in every state, it was adopted by all of them. Not a
guarantee merely in the professional acceptation of the word,
but a great national engagement, in which the states surren-
dered a sovereign right, making it a part of that instrument,
which was intended to make them one nation, within the sphere
of its action."
3. The implications of Story's history. These arguments-that the

Fugitive Slave Clause was "a fundamental article" of constitutional
37 Id.
38 Id.
39 Id.
4o Id at 638-39.
compromise and that this was well known

struggle-set the stage for the rest of Story's
was indeed fundamental, then perhaps it r
and exclusive-enforcement by the fede
Story continued and extended his original
that the framers must have intended not on
of the clause, but exclusive federal jurisdic
if the clause allowed state legislation on th
the master to capture a runaway slave "wo
sense be the same in all the states. It w
purpose, or uniformity of operation. The d
in some states; retarded, or limited in othe
pulsory in many, if not in all.""41 Story arg
conceivable that the slaveholding states wo
with leaving to the legislation of the non
power of regulation, in the absence of th
would or might practically amount to a powe
of the owner."4 If Congress did not have
then each state would have the power "to dol
justice, or withhold it at its pleasure and acc
of policy and expediency."43 This, Story b
been in the intentions of the framers.
Story's argument about the historic import
the intentions of its framers deviated somew
of a decade earlier. In Commentaries on the C
States44 he had asserted-erroneously-that
considered the clause necessary because th
sion under the [Articles of] confederation
inconvenience by the slave-holding states,
aid whatsoever would be allowed to the m
indeed they met with open resistance."4s T
this position. In 1787 no state prevented s
recovering runaways. But when writing hi
41 Id at 624.
42 Id.
43 Id.
4 Joseph Story, Commentaries on the Constitution of the United States (Hilliard, Gray & Co.,
1833).
45 Id at ? 952.
had not considered the clause

gain. In the Commentaries, he n
"for the benefit of the slaveh
good will toward the "peculiar
the clause was evidence that the South "at all times had its full
share of benefits from the Union."47 Significantly, Story did not
argue in Commentaries that the clause was part of a bargain, was a
quid pro quo for something in the Constitution that the North
wanted."4 Nor did he argue that it was a "a fundamental article,
without the adoption of which the jSnion could not have been
formed."49
B. THE REAL HISTORY OF THE FUGITIVE SLAVE CLAUSE
Story's assertion that the clause was an essential elem

constitutional bargain of 1787, and that it was equiva
three-fifths compromise or the slave trade compromi
first "story" in the Prigg decision. It was a strong argume
of his proslavery opinion, but it was also an argument th
comport with the available evidence from Madison's N
Federal Convention.5so
Late in the Constitutional Convention, Pierce Butler a
Pinckney of South Carolina proposed that a fugitive
be added to the article requiring the interstate extraditio
tives from justice. James Wilson of Pennsylvania obje
juxtaposition because "This would oblige the Executive
to do it, at the public expence." Butler discreetly "wi
proposition in order that some particular provision migh
apart from this article." A day later the Convention, wit
or formal vote, adopted the fugitive slave provision a
46 Id.
47 Id.
4 Without any evidence to support his position, Mr. Jonathan Meredith, counsel for
Prigg, argued before the Supreme Court that "it is well known" that "the fugitive slave
clause was the result of mutual concessions in reference to the whole subject of slavery. On
the one hand the south agreed to confer upon Congress the power to prohibit the importation
of slaves after the year 1808. On the other, the north agreed to recognise [sic] and protect
the existing institutions of the south." Prigg at 565.
49 Id at 611.
so See note 48 supra.
article of the draft constitution.s5 Event

emerged as succeeding paragraphs in Artic
Constitution.52
The paucity of debate over the Fugitive S
able because by the end of August 1787, w
adopted the clause, slavery had emerged as
bling blocks to a stronger union. While mora
ber of the northern delegates, some southe
with an analysis that anticipated the "posit
the antebellum period. Nevertheless, unlik
slave trade, the Three-Fifths Clause, the t
the regulation of commerce, the proposal for
generated no serious opposition.53 Story
noted that the clause "was proposed and ad
vote of the Convention."s4 This unanimit
Story to the relative unimportance of th
slavery-related clause at the Convention led n
opposition. Story's elevation of the impor
Slave Clause is not supported by the Conv
of the longest and most acrimonious deba
occurred over the Three-Fifths Clause and
sion. On the other hand, the Convention dele
the Fugitive Slave Clause, not because ther
ment on what the clause meant or on its nec
because the northern delegates simply failed
problems and moral dilemmas that the rendi
would pose.
The relationship between slavery and the Co
" The only other response to Butler's proposal was Roger

that he "saw no more propriety in the public seizing and s
than a horse." Max Farrand, ed, 2 The Records of the Federal Co
Press, 1966) 443, quotations at 45 3-54. The history of this
Slavery and the Constitutional Convention at 219-24 (cited
Wiecek, The Witch at the Christening: Slavery and the Cons
Levy and Dennis J. Mahoney, eds, 167-84 The Framing and
(Macmillan, 1987).
52 The clause reads: "No person held to Service or Labou
thereof, escaping into another, shall, in Consequence of any
discharged from such Service or Labour, but shall be deli
to whom such Service or Labour may be due."
" Finkelman, Slavery and the Constitutional Convention at
4 Prigg at 638-39.
a great deal of debate during th

objected to the Three-Fifths Cl
tion clause, which prevented
before 1808. Some of this de
vivid. For example, "A Cou
thought that Americans mig
people" if the Constitution w
of rights" and, among other
"relinquishing every idea of dr
for the sake of enslaving its fr
the New Hampshire Conventi
The idea that strikes those, w

so disagreeably and so forcibly
we ratify the Constitution) that
partakers in, the sin and guilt
We do not think ourselves un
works of supererogation in the
not esteem ourselves under any
to suppress the inquisition of
journey to the Carolinas to ab
enslaving the Africans; but, sir,
ratification to this cruel and i
for a day. There is a great dis
the most barbarous violation of the sacred laws of God and
humanity, and our becoming guaranties for its exercise for a
term of years.56
Similarly, "A Friend of the Rights of People" asked, "Can we then

hold up our hands for a Constitution that licences this bloody
practice? Can we who have fought so hard for Liberty give our
consent to have it taken away from others? May the powers above
forbid."'57
Yet, despite the vigorous attacks on the slave trade provision and
complaints about the Three-Fifths Clause, no antifederalists seem
55 "Letters from a Countryman from Dutchess County" (letter of Jan 22, 1788), in Herbert
Storing, ed, 6 The Complete Anti-federalist 62 (University of Chicago Press, 1981).
56 Fragment of Debate at New Hampshire Convention, in Jonathan Elliot, ed, 2 The
Debates in the Several State Conventions on the Adoption of the Federal Constitution 203-04 (J. B.
Lippincott, 1881).
57 "A Friend to the Rights of the People," in Storing, 4 The Complete Anti-federalist (cited
in note 55), 234, 241.
to have publicly discussed the fugitive slav

not see it as obligating either themselves,
ment, to become involved in the dirty bus
away slaves. The authors of The Federalist di
provision and the slave trade, but ignor
Clause.59 Contrary to Story's telling, if th
was an important provision of the Constituti
on either side of the ratification debate, seem
In the South, supporters of the Constitutio
tive Slave Clause as a boon to their intere
major component of the constitutional barga
would lead to federal enforcement.
In the Virginia Ratifying Convention, for example, the antifed-
eralist George Mason complained that the Constitution might
threaten slavery. James Madison replied by defending the various
clauses that protected slavery. He asserted that the Fugitive Slave
Clause "was expressly inserted to enable owners of slaves to reclaim
them."60 Madison noted that under the Articles of Confederation
if a slave escaped to a free state "he becomes emancipated by their
laws. For the law of the States are uncharitable to one another in
this respect." But under the Fugitive Slave Clause this could not
happen, and this was "a better security than any that now exists.'"61
Had Madison believed the clause guaranteed federal enforcement,
he probably would have made this point because it would have
58 The only northern opposition to this clause that I have encountered is found in corre-
spondence from and to the Rhode Island merchant and Quaker abolitionist Moses Brown.
In private correspondence, Brown expressed concern that the Fugitive Slave Clause was
"designd to Distroy the Present Assylum of the Massachusets from being as a City of Refuge
for the poor Blacks, many of whom had resorted there on Acc[oun]t of their Constitution
or Bill of rights declaring in the first Article 'That all men are born free & Equal &c.' and
there being no Laws in that State to support slavery, the Negroes on Entering that state
are as free as they are on Entering into Great Brittain and the southern people have not
been able by Applycation of the Governour, Judges or other Authority to Recover those
they had held as Slave, who Chose to Stay there." Moses Brown to James Pemberton, 17
Oct 1787, reprinted in John P. Kaminski and Gaspare J. Saladino, eds, 14 The Documentary
History of the Ratification of the Constitution by the States: Commentaries on the Constitution, Public
and Private 506-07 (State Historical Society of Wisconsin, 1983). See also William Rotch,
Sr. to Brown, 8 Nov, 1787, in id at 521; Brown to James Thornton, Sr., 13 Nov 1787, in
id at 522-23; Edmund Prior to Brown, 1 Dec 1787, in id at 526.
s9 Federalist 42 and Federalist 54.
6o James Madison, in the Virginia Ratifying Convention, 17 June 1788, in John P. Kamin-
ski and Gaspare J. Saladino, eds, 10 The Documentary History of the Ratification of the Constitu-
tion by the States: Virginia [3] 1339 (State Historical Society of Wisconsin, 1993).
61 Id.
strengthened his argument in f

he did not make such a point be
Similarly, when Patrick Hen
would lead to an abolition of s
been at the Philadelphia Conve
Clause to prove that this was
"authority is given to own
property."62
In other states the debate was much the same. The North Caro-
lina delegates told their governor that "the Southern States have
also a much better Security for the Return of Slaves who might
endeavour to Escape than they have under the original Confedera-
tion."63 Similarly, Charles Cotesworth Pinckney told the South
Carolina House of Representatives, "We have obtained a right to
recover our slaves in whatever part of America they may take ref-
uge, which is a right we had not before."64
None of the supporters of the Constitution who at been at the
Convention intimated that the Fugitive Slave Clause was a funda-
mental part of the bargain. Rather, they pointed to it as a plus for
the South, but not as a major clause. Similarly, none of these
framers anticipated that the federal government would enforce the
clause. The structure of the Constitution supported this interpreta-
tion of the clause.65
C. JUSTICE STORY'S HISTORY AND THE PROSLAVERY CONSTITUTION
Story's history of the origin of the Fugitive Slave Clause does

not comport with either the records of the Constitutional Conven-
tion or with the discussion of the clause during the ratification
process. Significantly, both sources were available to him in 1842
when he wrote the decision. The history he gave did, however,
62 Edmund Randolph in the Virginia Ratifying Convention, June 24, 1788, in Kaminski
and Saladino, 10 Documentary History 1484 (cited in note 60).
63 North Carolina Delegates [William Blount, Rich'd D. Spaight, Hugh Williamson] to
Governor Caswell, Sept 1787, reprinted in Farrand, ed, 3 Records 83 at 84 (cited in note
51).
64 Charles Cotesworth Pinckney, Speech in South Carolina House of Representatives,
Jan [17], 1788, reprinted in 3 Farrand, Records 252 at 254.
65 The Fugitive Slave Clause is in Art IV, ? 2 of the Constitution. Sections 1, 3, and 4
of Art IV all give specific enforcement powers to the federal government. Because ? 2 is
the only part of that article which does not explicitly grant authorize federal implementation,
it is reasonable to argue that the framers did not intend to grant Congress such power.
support his goal of nationalizing the law. B

into a fundamental part of the bargain ove
could argue for exclusive federal jurisdictio
fugitive slaves.
At another level, the Prigg opinion brought
closer to the true meaning of the Constitution
of this particular clause. It seems clear that on
tional Convention was to protect the South
Throughout the Convention, southerners e
such protection. They gained it in a variet
with representation, taxation, the slave trade,
national government to suppress rebellions an
important of all, from the perspective of slav
ited nature of the national government, whic
emancipation. As General Charles Coteswort
Carolina told his state's house of representa
We have a security that the general govern
emancipate them, for no such authority is g
admitted, on all hands, that the general gov
powers but what are expressly granted by t
and that all rights not expressed were reserv
states.66
Significantly, at the Convention and in its aftermath, no on

considered the Fugitive Slave Clause to be a particularly importa
part of the constitutional bargain over slavery. But, by the 1830
southerners felt that their peculiar institution was under attack. In
his Commentaries on the Constitution of the United States,67 Story tried
to assuage the South by describing the clause as a gift from t
North to the South; then in Prigg Story tried to further please the
South by elevating the Fugitive Slave Clause to a central part
the constitutional bargain, and then protecting expanded southe
claims under this elevated clause.
In Commentaries on the Constitution of the United States, published
a decade before Prigg, Story had erroneously asserted that the Fugi-
tive Slave Clause was necessary because the lack "of such a provi-
sion under the [Articles of] confederation was felt, as a grievous
66 Charles Cotesworth Pinckney, Speech in South Carolina House of Representatives,

Jan [17], 1788, reprinted in 3 Farrand, Records 252 at 254-55 (cited in note 51).
67 Story, Commentaries on the Constitution (cited in note 44).
inconvenience by the slave-ho

aid whatsoever would be allow
indeed they met with open re
truth to this position. Had th
a grievous inconvenience" it wo
late August to propose the cla
Pierce Butler's initial proposal o
thought of it until just that mo
(which was not available to St
undermines Story's contention
isting at the time of the Conve
available to Story in 1833.
In 1787, no state specifically
recovering runaways. Only in
runaway slaves found asylum
Rhode Island recognized the rig
slave even while they were dis
York and New Jersey were still
pate in the return of runaway
ignored this history because i
elevate the fugitive slave prov
in order to prove that the Cons
tection for its most important
Story the clause was a boon "f
states" to indicate northern goo
of the south.""71 Thus in his Co
Fugitive Slave Clause "to rep
notion, that the south has no
benefits from the Union."72
68 Id at ? 952.
69 See the correspondence of Moses Brow

ton, 17 Oct 1787, reprinted in Kaminski a
(cited in note 58); William Rotch, Sr. to B
Thornton, Sr., 13 Nov 1787, in id at 522
at 526. There is no evidence of runaway
state of Vermont at this time. Recover
difficult, but it would have been even mo
70 On the rights of masters in those sta
note 18).
71 Story, Commentaries at ? 952.
72 Id.
In Prigg, Story expanded and shifted th

government would guarantee the interest
the North from interfering with the rendit
and even allow masters to seize and remov
out any due process procedure at all. All th
argued in Prigg, because the Constitution
There is an obvious explanation for th
Story's analysis of the Fugitive Slave Clau
and his later analysis of it in Prigg. In the C
trying to provide a nationalistic interpretat
that would be accepted in all sections of
writing just after the emergence of the mil
ment, in the wake of the Webster-Hayne
of the nullification crisis. The South was the
reject his nationalist interpretation of the
assertion that the Fugitive Slave Clause was
tution solely "for the benefit of the slaveho
signed to garner support in the South for
nationalism. The result of this would be to renew southern faith in
the fundamental spirit of the Constitution-that the Constitution
protected slavery. In Prigg, however, Story did not have to appeal
to the South. The opinion was overwhelmingly favorable to the
interests of slavery. Rather, Story had to convince the North to
accept his proslavery opinion. Thus, he put a new spin on his
constitutional history, arguing that the Constitution required both
the federal law of 1793 and his harsh interpretation of it in Prigg.
Story doubtless hoped the North would accept Prigg because he
asserted it was dictated by the Constitution itself and because the
Fugitive Slave Clause was an essential part of the constitutional
bargain of 1787. In effect, Story accepted a proslavery interpreta-
tion of the Constitution as a vehicle for strengthening the federal
government. Although Story's son would later argue that the opin-
ion was antislavery because it localized slavery, in fact, the opinion
was significantly proslavery because it actually nationalized
slavery.74
73 Id.
74 For a discussion of the "localization" argument, see Part V, A, of this article. Ironically,
by nationalizing the return of fugitive slaves, and making the Fugitive Slave Clause a central
part of the constitutional bargain, Story gave support to the antinationalist position of
William Lloyd Garrison and Wendell Phillips that the Constitution was a proslavery "cove-
nant with death."
III. THE SECOND STORY: THE RELEVANT PRECEDENTS
In upholding all aspects of the Fugitive Slave Law of 1793,

Story naturally looked for precedents to support his position. Story
argued that the existing case law, consisting of three state cases,
totally supported his position. In doing so, the justice and legal
scholar created his second story. In fact, one of the cases he cited
for authority held the opposite of what Story claimed it held. Fur-
thermore, Story ignored two state cases that did not support his
position.
Although the Fugitive Slave Act had been in force for a half
century when the Supreme Court heard Prigg, the existing case
law on the issue was hardly noticeable. A few lower federal courts
had heard cases under the law, but the district judges offered little
guidance or intellectual support of Story.75 While riding circuit,
Justice Henry Baldwin had delivered one opinion on the law.76
Although offering perfunctory support for the constitutionality of
the law, Baldwin did not analyze it. The case was a suit for dam-
ages against Pennsylvanians who helped a slave escape, and Bal-
dwin easily found for the plaintiff slave owner.77
More important than any federal cases were the discussions of
the 1793 law in the state courts. By the time Prigg reached the
Supreme Court, there were five state precedents involving the Fu-
gitive Slave Law of 1793.78 Three, from Pennsylvania, Massachu-
setts, and New York, had been officially reported. A case from
New Jersey was not officially reported, but the case and the opin-
ion by Chief Justice Joseph Hornblower were widely reported in
75 In re Susan, 23 F Cases 444 (US DC, Ind, 1818) (Fugitive slave Susan returned to
slavery with no opinion of the court); Case of Williams, 29 F Cases 1334 (US DC, Pa,
1839) (court discharges a black (Williams) seized by professional slave catcher because court
determines that Williams is not a fugitive slave); In re Martin, 16 F Cases 881 (US DC,
NY, 1827-1840) (in this case of an unknown date, the Federal District Judge in New York
declared that the act of 1793 was constitutional and a New York official then issued a
certificate of removal under the law).
76Johnson v Tompkins et al., 13 F Cases 840 (US C C Pa, 1833) (Justice Baldwin, riding
circuit, upholds damages for a fugitive slave rescued by Tompkins).
77 Id. The fact that Baldwin was an extremely weak justice undermined the value of any
opinion he wrote. More importantly, perhaps, many observers believed Baldwin was insane.
Carl B. Swisher, History of the Supreme Court of the United States: The Taney Period, 1836-64
51 (Macmillan, 1974). His opinion in Prigg supports both observations.
78 Wright v Deacon, 5 Serg & Rawle 62 (Pa 1819); Commonwealth v Griffith, 19 Mass (2
Pick) 11 (1823); Jack v Martin, 14 Wend 507 (NY 1835); State v Sheriff of Burlington, No
36286 (NJ 1836); Pennsylvania v Prigg (unreported, Pa, 1841) reversed, Prigg v Pennsylvania,
16 Peters (41 US) 1 (1842).
newspapers and cited by an important Ohio

few years before Prigg.79 The fifth case wa
preme Court's opinion in Prigg, which had
of course Story had the full benefit of the vi
A. THE JUSTICE'S STORY ABOUT THE RELEVAN
Despite the mixed response of state courts

tice Story argued that all states supported his
that the law had:
naturally been brought under adjudication in several states

in the Union, and particularly in Massachusetts, New York,
and Pennsylvania, and on all these occasions its validity has
been affirmed. The cases cited at the bar . . . are directly in
point.so
He noted in passing that no federal court had ever denied the

validity of the law, although he did not examine any federal
opinions.81
Story used this sweeping assertion of support from state cases
to bolster his assertion that the 1793 act was "clearly constitutional
in all its leading provisions."82 Story argued that if the interpreta-
tion of the Fugitive Slave Clause and the law of 1793 "were one of
doubtful construction, such long acquiescence in it, such contem-
poraneous expositions of it, and such extensive and uniform recog-
nition of its validity, would in our judgment entitle the question
to be considered at rest."83 To the extent that constitutional inter-
pretation was designed to give Americans certainty, then following
79 State v Sheriff of Burlington, No 36286 (NJ 1836) (also known as Nathan, Alias Alex.
Helmsley v State). For newspaper accounts of the case, see "Upholding Slavery," 20 Friend
281-82 (June 11, 1836). Portions of this article are reprinted as Important Decision, Liberator
(July 30, 1836), at 124. Important Decision, Newark Daily Advertiser (Aug 18, 1836). The
case was cite by Salmon P. Chase in Salmon P. Chase, Speech of Salmon P. Chase in the Case
of the Colored Woman, Matilda 18-19 (Pugh and Dodd, 1837), reprinted in Paul Finkelman,
ed, 2 Southern Slaves in Free State Courts 1 (Garland, 1988). For a discussion of the Hornblower
decision, see Paul Finkelman, State Constitutional Protections of Liberty and the Antebellum New
Jersey Supreme Court: Chief Justice Hornblower and the Fugitive Slave Law of 1793, 23 Rutgers
L J 753 (1992).
80so Prigg at 621.
81 Id. "So far as the judges of the Courts of the United States have been called upon to
enforce it, and to grant the certificate required by it, it is believed that it has been uniformly
recognised as a binding and valid law; and as imposing a constitutional duty." Id.
82 Id at 622.
83 Id at 621.
the state cases supported that g

was that "the interpretation o
over to interminable doubt thro
lation, and of national operation
B. THE REAL CASE LAW
Story's use of state cases to bolster his opinion was

constitutionally sound. However, it was neither histor
rect nor jurisprudentially honest. There were five imp
decisions on the Fugitive Slave Law by 1842. Two
it,85 two did not.86 The fifth case, the Pennsylvania
Court's decision in Prigg itself, did not question the cons
ity of the 1793 law, but also did not support Story's o
sions.
This division is not simply a 2-2-1 split among stat

The supportive opinions were short, analytically wea
cided before the northern states began to pass personal li
in the mid-1820s. On the other hand, the state opinion
the federal law and upholding state authority to legis
subject were newer and analytically stronger than ei
cases upholding the 1793 law.
In 1819, Pennsylvania's Chief Justice, William Tilgh
forced the federal law while denying that a fugitive s
right to a jury trial. However, he did not otherwise e
constitutionality of the federal act.87 In 1823, Chief J
Parker of Massachusetts also upheld the 1793 law but
analysis to "a single point: whether the statute of the Un
giving power to seize a slave without a warrant is constit
Parker upheld this warrantless seizure because "slaves
ties to the constitution, and the [Fourth] [A]mendm
[sic] relation the parties."89 Parker noted, without any
84 Id.
s8 Wright v Deacon, 5 Serg & Rawle 62 (Pa 1819); Commonwealth v Griffith, 19 Mass (2
Pick) 11 (1823).
86Jack v Martin, 14 Wend 507 (NY 1835); State v Sheriff of Burlington, No 36286 (NJ 1836)
(also known as Nathan, Alias Alex. Helmsley v State).
87 Wright, 5 Serg & Rawle at 62.
88 Griffith, 19 Mass (2 Pick) at 11, 18.
89 Id at 19.
reference to a specific constitutional provisio

tion does not prescribe the mode of reclaim
it to be determined by Congress."90
Parker might have reached a different conc
ered to analyze the 1793 law or the Fugit
Constitution. A structural analysis of the C
led Parker to conclude that because the Fu
placed in Article IV, Section 2, the clause
to Congressional enforcement. Sections 1,
have specific provisions giving Congress e
example, in Section 1 Congress was specific
scribe the Manner in which" acts, record
in one state might be proved in another.9
empowered Congress to admit new states
dispose of and make all needful Rules and
Territories.92 Indeed, Section 2 was the only
did not empower the national government to
Logically, fugitive slave rendition was part o
of this section of Article IV, and should have
to enforce as a matter of comity.93
The opinions of Chancellor Reuben Walw
Chief Justice Joseph C. Hornblower stand
the meager analysis of Tilghman and Park
a careful analysis of the constitutional issu
law and Fugitive Slave Clause. Both opinio
cent, and reflected concepts of federalism as
in Jacksonian America. Moreover, both ju
law was unconstitutional.
Hornblower's opinion was unreported, and although Story prob-
90 Id.
91 US Const, Art IV, ? 1, "Full Faith and Credit shall be given in each State to the public
Acts, Records, and judicial Proceedings of every other State. An the Congress may by
general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof."
92 US Const, Art IV, ? 3. Section 4 of this Article empowered "The United States"
to guarantee a "Republican Form of Government" in every state. Thus, Congress, along
with the other branches of government, could act to enforce this clause. See generally,
William M. Wiecek, The Guarantee Clause of the U.S. Constitution (Cornell University Press,
1972).
93 See the discussion in note 95.
ably had access to it,94 it is po

decision or felt that because it w
Chancellor Reuben Walworth's
ever, was well known to Story
ing for New York's highest co
Slave Act unconstitutional be
pass such a law. Walworth ha
looked in vain among the powe
constitution, for any general aut
on this subject. It is certainly
grant of power, and it does no
general grant of incidental pow
of the constitution relative to th
After careful consideration of the Constitution's text and the state

statutes existing in 1787, Walworth applied a version of original
intent analysis to conclude that the 1793 law was unconstitutional.
It is impossible to bring my mind to the conclusion that the

framers of the constitution have authorized the congress of the
United States to pass a law by which the certificate of a justice
of the peace of the state, shall be made conclusive evidence of
94 Ohio attorney Salmon P. Chase had cited it while arguing a case in 1837. Chase, Speech
of Salmon P. Chase at 18 (cited in note 79).
95 In his analysis of Article IV, Hornblower compared the Full Faith and Credit Clause,
which explicitly gives Congress the power to pass laws, with the Fugitive Slave Clause.
Since no such explicit language exists in ? 2, the court concluded that "no such power was
intended to be given" to Congress for implementation of the clauses in that section of the
Constitution. Indeed, Hornblower argued that Congressional legislation over the Privileges
and Immunities Clause or over interstate rendition "would cover a broad field, and lead to
the most unhappy results." Such legislation would "bring the general government into
conflict with the state authorities, and the prejudices of local communities." Hornblower
asserted that Congress lacked the "right to prescribe the manner in which persons residing
in the free states, shall be arrested, imprisoned, delivered up, and transferred from one state
to another, simply because they are claimed as slaves." Consistent with the northern states'
rights arguments of the antebellum period, Hornblower warned the "American people
would not long submit" to such an expansive view of Congressional power. Although this
analysis seemed to lead to the conclusion that the Fugitive Slave Act was unconstitutional,
Hornblower declined "to express any definitive opinion on the validity of the act of Con-
gress." He could avoid this grave responsibility because the case before him had been
brought "in pursuance of the law of this state." However, Hornblower's position on the
unconstitutionality of the federal law was unambiguous. Opinion of Chief Justice Hornblower
on the Fugitive Slave Law at 4-5 (1851), reprinted in Paul Finkelman, ed, 1 Fugitive Slaves
and American Courts: The Pamphlet Literature 97 (Garland, 1988).
96 14 Wend 507 (NY 1835).
97 Id at 526.
the right of the claimant, to remove one w

native born citizen of this state, to a distant
as a slave; and thereby to deprive such person
the writ of habeas corpus, as well as of his co
try his right of citizenship in the state where
and where he is residing at the time of such
Walworth's opinion in Jack v Martin was n

the rendition of fugitive slaves. Walwort
to Jack and firmly supported the obligat
return fugitive slaves, asserting that every
citizen, who owes allegiance to the Unite
the usual oath to support the constitution" w
the Fugitive Slave Clause of the Constitu
categorically denied the constitutionality
Law.
Before the Supreme Court, both counsel for Pennsylvania,

Thomas Hambly and Attorney General Ovid F. Johnson, cited
the case. Hambly noted that
the question of constitutionality was debated [inJack v Martin],

and in my judgment not a single solid reason was given for that
construction, but, on the contrary, Chancellor Walworth says,
'I have looked in vain among the delegated powers of congress
for authority to legislate upon the subject,' and concludes that
state legislation is ample for the purpose.00
Attorney General Johnson noted that the states were divided on

the constitutionality of the Fugitive Slave Act. He pointed out that
Commonwealth v Griffithbol and Jack v Martin "exhibit[ed] a most
striking illustration of the 'uncertainty of the law.' "102 In these
two cases "the courts were divided in opinion," while in various
Pennsylvania cases "the question did not properly arise, and the
Court, without examination, declared its opinion on the constitu-
tionality of the act of Congress of 1793."103
Despite Story's reputation as a great legal scholar, he ignored the
98 Id at 528.
99 Id.
'0l Prigg at 584.

101 19 Mass (2 Pick) 11 (1823).
102 Prigg at 591.
'03 Id at 591-92.
arguments of Hambly and Jo

Walworth's opinion. Walworth
but, citing Walworth's opinion
brought under adjudication i
particularly in Massachusett
on all these occasions its valid
This statement is flatly wr
New Jersey had found the la
Supreme Court, in Prigg, com
pretation of the law, and of
the constitutionality of the 17
constitutionality. It is hard to
ten this with a straight face.
stand in his way, he did mor
dents: he rewrote them to su
Justice's second story.
IV. THE THIRD STORY: THE LIFE OF MARGARET MORGAN
The cost of Story's rewriting of constitutional history and

reinterpreting the Fugitive Slave Clause would be borne mostly by
black Americans, free and fugitive, who lived in the North. After
Prigg, a master or her agent could seize any black, and if done
without a breach of the peace, remove that person to the South.
No state court could intervene; no state official could question the
actions of the slave catcher. The facts of Prigg illustrate the dangers
of Story's opinion.
A. THE TRAVELS AND TRAVAILS OF MARGARET MORGAN AND HER
CHILDREN
When Prigg seized her, Margaret Morgan made no claim of

taken" identity. She was the child of people who were bor
and thus Prigg had at least a prima facia claim to her, bo
the federal law of 1793 and Maryland law. Nevertheless,
life as a slave, and the circumstances of her arrival in Penns
reveal the problems caused by the Fugitive Slave Clause
'04 Id at 621.
1793 law Congress adopted to enforce it. 10"'

that Morgan and some or all of her childr
claims to freedom, under Pennsylvania la
Maryland law. In other words, although
Morgan may have been legitimately free; cer
children had been born free,106 and were no
law of 1793. In his opinion, Justice Story g
bilities in his desire to write a sweeping nati
ing down Pennsylvania's personal liberty l
fact that the circumstances of Morgan's lif
sity of such laws to protect free blacks w
under the color of federal law.
In the early years of the nineteenth century-probably before
1812-a Maryland slaveowner named John Ashmore allowed two
of his slaves-an aged married couple-to live in virtual free-
dom.107 Although Ashmore never formally freed the two slaves,
thereafter he "constantly declared he had set them free."108 The
two slaves raised a daughter named Margaret.109 Because she was
born in Maryland, to a slave mother, Margaret was technically
Ashmore's slave, even though Ashmore never asserted any author-
ity over her.
In 1820, John Ashmore was a sixty-year-old farmer and mill
owner, with extensive land holdings in Harford County. He also
owned ten slaves, although neither Margaret nor her parents were
among them. However, shortly after that he began disposing of
his slaves. In March 1821, the sixty-one-year-old Ashmore sold
two male slaves to his neighbor Jacob Forward for eight hundred
dollars.110 By 1824, when he died, Ashmore owned only two young
105 On the history of the adoption of the law, see Paul Finkelman, The Kidnapping ofJohn
Davis and the Adoption of the Fugitive Slave Law of 1793, 56 J Southern History 397-422 (1990).
'0 Thomas C. Hambly, Argument of Mr. Hambly, of York, (Pa.) in the Case of Edward Prigg
8 (Baltimore, Lucas & Dever, 1842), reprinted in Paul Finkelman, ed, 1 Fugitive Slaves and
American Courts: The Pamphlet Literature 128 (Garland, 1988) (hereafter Argument of Hambly
[with original page numbers and reprint page numbers in parentheses]).
107 Information about this case comes from the printed report in Prigg at 608-10.
108 Argument of Hambly at 8 (128) (cited in note 106).
'09 We have no record of what her last name was before she married Morgan.
"O0 John Ashmore to Jacob Forward, Bill of Sale, March 6, 1821, in Harford County
Historical Society manuscripts. In 1837 Forward would join Edward Prigg and Nathan S.
Bemis in their quest for Margaret Morgan. Forward was one of the four men indicted for
the kidnapping, but only Prigg was returned for trial. Ashmore's total slave property in
1820 is based on the US Manuscript Census, 1820, Harford County, Maryland, p 380 (also
male slaves. In May 1821, Ash

holdings to his daughter, Susan
eration of natural love and aff
years later Ashmore died int
went to his wife, Margaret Ash
included no real property, wa
$509. The most valuable asset
12, and James, age 11.112 Th
owned, or claimed to own, a
at his death or before. At the
at his old home, which by this
Susanna Bemis. His widow, M
there as well."'
Sometime after John Ashmo
of his former slaves, married J
sylvania. They continued to l
neighborhood as Margaret As
law, Susanna and Nathan S.
Morgan lived with her aged p
Ashmore and given to Susanna
iff, who was also the census
head of a family consisting
and their two "free black" ch
Margaret's parents, the Morg
vania, apparently with the k
Nathan S. Bemis.
What happened next is unknown. But, in February 1837, Ash-
more's son-in-law, Nathan S. Bemis, went to Pennsylvania to bring
noted as p 76). Ashmore's birthdate, Jan 22, 1760, is found in Bill and Martha Reamy, St.
George's Parrish Registers, 1689-1793 (Family Line Publications) 85.
"' Deed of Conveyance from John Ashmore to Susanna Bemis, May 11, 1821, in Harford
County Historical Society manuscripts. Edward Prigg was one of the two witnesses to this
need.
112 John Ashmore Inventory, Sept 28, 1824, Harford County, Register of Willis, # 1672.
"'3 US Manuscript Census, 1830, Harford County, Maryland, p 387. On April 22, 1845,
Margaret Ashmore manumitted her slave Jim, who she had inherited when her husband
died. Nathan S. Bemis served as the "agent and attorney" for Margaret Ashmore in this
transaction. "Margaret Ashmore and Negro Jim, Manumission Deed, recorded May 10,
1845." Harford County Historical Society manuscripts.
"4 This claim is made by Thomas Hambly, counsel for Pennsylvania, in his Supreme
Court brief. Hambly, Argument of Mr. Hambly at 8 (128) (cited in note 106).
"s US Census, 1830, Manuscript Census for Harford County, Maryland, p 394.
Margaret and her children back to M

Bemis were three neighbors, Edward Pr
Stephen Lewis, Jr. Prigg and Forward had
family. Prigg witnessed John Ashmore's d
ter and later witnessed the inventory of
purchased slaves from Ashmore and Ash
to the will of Forward's father."' The four
Margaret Morgan and secured an arrest
Henderson, a York County, Pennsylvani
required by the Pennsylvania law of 182
accompanied the four Marylanders to th
the family, and brought them back to Jus
son. When Henderson actually saw the M
he refused to grant Bemis and Prigg a cert
the Morgans back to Maryland. It was cle
was a free-born native of Pennsylvania, an
children had been born in that free state a
Margaret Morgan's story, Henderson co
family was really free. Bemis and Prigg
without process took Margaret Morgan
Maryland. They were subsequently indi
only Prigg was returned for trial."17
B. THE JUSTICE'S STORY ABOUT MARGARET M
In Prigg, Justice Story did not tell M

Rather, he repeated, in the barest details,
court. He noted that the Pennsylvania tr
guilty "for having, with force and violenc
from that county to the state of Maryland
named Margaret Morgan, with a design
and disposing of, and keeping her as a
contrary to a statute of Pennsylvania, pass
1826.""118 He recounted Prigg's response
Margaret Morgan, was a slave for life
service under and according to the laws
1"6 Bible Records of Harford County, Maryland Families,

cal Society, Baltimore. See also notes 110, 112.
"7 Prigg at 543.
"s Id at 608.
Margaret Ashmore, a citizen

and fled from Maryland into
an afterthought, Story adde
Pennsylvania trial court] furth
born in Pennsylvania, more th
had fled and escaped from Ma
This is all Justice Story has
husband Jerry, and their child
while not untrue, is surely mis
them, raise three important qu
dressed. First, was Morgan in f
law? Second, had Morgan in f
into Pennsylvania?" Third, w
was it only one child-who "w
Had Story addressed these is
so easily create a right of self
might have been less able to
liberty law. In his opinion Stor
est hesitation in holding, that,
tion, the owner of a slave is cl
state in the Union, to seize a
can do it without any breach
In this sense, and to this ext
may properly be said to execu
legislation, state or national.'"1
Because he did not consider t
Story did not address how a
liberty of its free-born citize
He ignored the free status of t
of Morgan herself. Only by d
self-help and the striking do
blacks who might otherwise
C. MARGARET MORGAN'S CLAIMS TO FREEDOM
Margaret Ashmore based her claim to Morgan on the fact that

Morgan's mother had never been legally emancipated, and thus
119 Id at 608-09.
120 Prigg at 609.

12' Id at 613.
Morgan herself was born a slave, and con

the Ashmores. On its face this was a valid
may have had a legitimate claim to freedom
Pennsylvania. As a slave who was allowed
and live there with the knowledge of her m
become legally free.122
There is no evidence that anyone raised
freedom, either in the trial court or at t
is in part because Morgan's status was nev
Pennsylvania court.123 Nevertheless, Stor
these issues in his opinion, had he been inter
to uphold the Pennsylvania law. Indeed, t
been enough to send the case back to tri
determine if Morgan had in fact been fre
Margaret Morgan was entitled to freedom u
it would not have been unreasonable for the C
had a right to prove that freedom in a Penns
Supreme Court had decided it could not cons
freedom because she was not a party to the
to freedom should have alerted Story to the
states to protect the liberty of their resident
122 As the daughter of slaves abandoned by their owner,

common law right to be free. Ashmore, the original owner
to Margaret Morgan's parents. They lived and acted like fr
seems to have never asserted any claim over Margaret. In
held that "Proof that a negro has been suffered to live in a
man, would prima facie, establish the fact of freedom. Like
may be repelled, and shewn that, notwithstanding it, he is
or set free. But until this is done, the general reputation
it. . . "State v Harden, 2 Spears (SC) 151 n (1832). Marylan
hostile to the notion that a slave could gain freedom throug
akin to adverse possession of one's self. In Walkup v Pratt,
the Court held that "general reputation of the neighbourh
... maternal ancestors, were free negroes" was not admissib
in 1837 the Maryland court also held that a slave was no
large and acted as a free man, by keeping an oyster h
otherwise acted as a free man, his own master. .. .", Bland
and John 19 (1837). This case did not directly raise the fre
Prigg. In Bland the slave unsuccessfully claimed his free
purchased it from his owner Bland.
123 In May 1837, Margaret Morgan sued for her freedom
August 28, a jury was sworn, which two days later decided
than a dozen witnesses appeared on behalf of the defendan
Morgan, on the other hand, does not seem to have been
Book, Harford County Civil and Criminal Court, 1837
Society. Margaret and her children were subsequently sold
10 (130) (cited in note 106).
Morgan's strongest claim to

transit and interstate comity.
the principle that a slave becam
tion.124 As early as 1780, Pe
that any slave voluntarily brou
ever, in order to preserve in
granted masters a six month
slaves. 125
Clearly Margaret Ashmore knew that Margaret had gone to

Pennsylvania. Yet she did nothing to stop her or retrieve her. In-
deed, she acquiesced in the actions of Margaret. 126 A Pennsylvania
court could easily have found Margaret free under Pennsylvania's
1780 law on the theory that Ashmore had implicitly consented to
her taking up residence in a free state and allowed her to live there
for more than six months. A Maryland court might have agreed as
well. In 1799 a Maryland court had upheld the freedom claim of a
slave because his master had hired him to work in Pennsylvania.127
Morgan may also have had a claim to freedom under Maryland
law. Technically Morgan was a slave because her mother was a
slave, and neither had ever been formally manumitted. Maryland,
like all other slave states, did not allow a master to accomplish a
manumission de facto. Rather, manumissions required specific acts
and actions. However, in 1837 a Maryland court seemed to imply
that a slave might become free because "he appeared at all times
openly, and it was notorious to his neighbors" that he resided
in Pennsylvania.128 This was analogous to the concept of adverse
possession in real property law. Because Ashmore had allowed
124 For a full discussion of freedom through transit, see Finkelman, An Imperfect Union
(cited in note 18).
12s "An Act for the Gradual Abolition of Slavery," Act of March 1, 1780, Pennsylvania
Laws, 1780.
126 This might be because Margaret Ashmore did not claim Margaret Morgan as her slave.
She was not part of John Ashmore's estate, and considered free by the local authorities who
took the 1830 census.
127 Negro David v Porter, 4 Harr & McH 418 (1799).

12s Pocock v Hendricks, 8 Gill and John (Md) 421 (1837). However, later that month (June
1837) the same court also held that a slave was not free even though he "went at large and
acted as a free man" and had been allowed to travel to New York and work there. Bland v
Negro Beverly Dowling, 9 Gill and John 19 (1837). Neither case directly raised the freedom
issues under consideration here. Pocock involved a suit between two whites, while in Bland
the slave unsuccessfully claimed his freedom on the grounds that he had purchased it from
his owner Bland.
Margaret to adversely possess herself by livi

land and Pennsylvania for her entire life
claim to freedom. The finding of the 1830 ce
would certainly have bolstered this claim.
few Maryland cases on the issue, suggest tha
been free under Maryland law, as well as u
D. THE CLAIM TO FREEDOM OF MARGARET MORGAN'S CHILDREN
By 1837, Margaret Morgan was the mother of a number of

dren. The existing record is unclear about how many sh
is also not clear how many of these children were born in P
vania,129 and how many were born in Maryland. It was undi
however, "that one of the children was born in Pennsylvani
than a year after the said negro woman had fled and escaped
Maryland."130
Under Pennsylvania's Gradual Emancipation Act of 1
children born of slave mothers in Pennsylvania after March
were free,"13 but could be indentured until age twenty-e
Pennsylvania courts, both before and after Prigg, suppo
notion that any child born in the Commonwealth was fr
if the child's mother was a runaway slave."13 Pennsylva
furthermore prohibited the removal from the state of an
child born to a slave. 134 Thus, under Pennsylvania law at le
and perhaps more than one, of Morgan's children was a free
129 "The children were born in Pennsylvania .. ", Prigg at 539.

130 Id at 609.
131 "An Act for the Gradual Abolition of Slavery," Act of March 1, 1780, Pennsylvania
Laws, 1780, ? III, "All persons as well Negroes and Mulattoes as others, who shall be born
within this state from and after the passing of this act, shall not be deemed as considered
servants for life, or slaves; and that all servitude for life, or slavery of children, in conse-
quence of the slavery of their mothers, in the case of all children born within this state
from and after the passing of this act as aforesaid, shall be, and hereby is, utterly taken
away, extinguished, and for ever abolished."
132 Id at ? IV.
133 Commonwealth v Holloway, 2 S & R (Pa) 305 (1816); Commonwealth v Auld, 4 Clark (Pa)
507 (1850). This issue is discussed in Finkelman, An Imperfect Union at 64-65 (cited in note
18).
134 "An Act to Explain and Amend An Act, Entitled 'An Act for the Gradual Abolition
of Slavery,' " Act of March 29, 1788, Pennsylvania Acts, 1788, ? II.
E. THE CLAIMS TO FREEDOM AND THE PENNSYLVANIA PERSONAL
LIBERTY LAW OF 1826
If either Margaret Morgan or any of her children were entitled

to their freedom under Pennsylvania law, then Prigg had no right
to seize them and remove them from the state. Similarly, the Com-
monwealth of Pennsylvania had a presumptive right to protect
them from kidnapping. Shortly before the legislature adopted the
1826 law, five free black children were kidnapped from Philadel-
phia and sold as slaves. While three of the young boys were re-
turned to Philadelphia after "they fell into the hands of a humane
protector" in Mississippi, the other two died during their illegal
captivity.135
Thus, while the 1826 law might have been used to frustrate the
return of a fugitive to a slave state, the act had been adopted to
both prevent kidnapping and avoid conflicts between Pennsylvania
and her slave-holding neighbors. At the time of its adoption, "it is
unlikely that many, except the militant antislavery people, under-
stood that the law was subject to interpretations which would virtu-
ally deny the recovery of runaways in Pennsylvania.""16 The first
section of the 1826 act was aimed at kidnappers, not slave catchers.
This section punished anyone
who by force and violence, take and carry away, or cause to
be taken or carried away, and shall by fraud or false pretence,
seduce, or cause to be seduced, or shall attempt so to take,
carry away, or seduce any negro or mulatto from any part
or parts of this commonwealth, to any other place or places,
whatsoever, out of this commonwealth, with a design and in-
tention of selling and disposing of, or of causing to be sold, or
of keeping and detaining, or of causing to be kept and detained,
such negro or mulatto, as a slave or servant for life, or for any
term whatsoever. . 137
If Margaret Morgan had a reasonable claim to freedom under

Pennsylvania law, then she surely had a right to try that claim under
Pennsylvania law. Even if she could not have maintained her claim,
135 This is described in Leslie, The Pennsylvania Fugitive Slave Act of 1826 at 221 (cited in
note 26).
'36 Id at 440.
'37 Pennsylvania Act of 1826, ? 1.
Morgan's Pennsylvania-born children shoul

their freedom in the courts of the state in wh
Certainly other blacks claimed as fugitiv
be free. Thus, the Supreme Court shoul
some parts of the Pennsylvania law, as it r
dissent Justice John McLean argued for
Justice Story, however, writing for the m
in protecting the liberty of Pennsylvania'
population. By striking down the Pennsy
seemed to leave Pennsylvania powerless to
of its own citizens.
V. THE FOURTH STORY: THE MYTH OF THE "TRIUMPH OF

FREEDOM"
According to his son William Wetmore Story, Justice Story

"repeatedly and earnestly spoke" of his Prigg opinion as a "triumph
of freedom."'139 Whether Story actually said 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 independent evidence on the sub-
ject. 4 It seems doubtful that Story actually thought he was writing
'38 Authorities in Maryland privately acknowledged that Bemis, Prigg, Forward and
Lewis were probably guilty of kidnapping for taking Morgan's Pennsylvania-born children
to Maryland, but they nevertheless objected to the extradition of the men from Harford
County. When he received a letter from the Governor of Pennsylvania indicating that there
would be an extradition requisition for the four men, Thomas Culberth, the Clerk of the
Governor's Council, told Maryland's governor that "The part of the case involved in the
most difficulty, and danger of producing collision and excitement, relates to the children
which it seems, were born in Pennsylvania. They were free by the Law of Pennsylvania,
and according to my reading and understanding of the constitutional and legal provisions
for reclaiming fugitives, do not come within their provisions, and, consequently, the seizing
and taking of them away, (if Esquire Henderson or some other authorized magistrate, did
not give authority) was the 'crime' of kidnapping." Yet, Culberth urged the Governor to
avoid any cooperation on the issue because it was so politically sensitive in Maryland.
Thom. Culberth, Clerk of Council, to His Excellency, Gov Thomas W. Veazey, March
27, 1837, Maryland State Archives; MSA NO S1075; Governor and Council Letterbook,
1834-38, pp 553-54.
139 William Wetmore Story, ed, 2 Life and Letters ofJoseph Story at 392 (Charles C. Little
and James Brown, 1851).
140 In his prize-winning biography of Story, R. Kent Newmyer wrote: "Upon his return
to Massachusetts in the spring of 1842, he spoke of opinion in Prigg 'repeatedly and earnestly'
to his family and friends as a 'triumph of freedom.' " Newmyer, Justice Joseph Story, at 372
(cited in note 1). In the note to this sentence, Newmyer cites to William Wetmore's discus-
sion in 2 Life and Letters at 392 (cited in note 139), and then Newmyer writes, "'Triumph
of Freedom' was Story's phrase, not his son's." But, Newmyer provides no other evidence
that it was the justice's phrase. Ordinarily, I would accept William Wetmore Story as a
an opinion that was a "triumph

able way. Neither did his asse
umph. The "triumph of freedom
more story, told by the justice
a triumph of proslavery judici
William Wetmore Story mad
father's opinion. The defense
persuasive. Made after his fathe
to reverse in the court of north
ment of Story's opinion of th
over freedom for the South.
A. THE STORYS TELL THEIR TALE
The younger Story, himself an accomplished legal

defended Prigg as a "triumph of freedom" on three g
First, William Wetmore argued that Prigg "was a
freedom,' because it localized slavery, and made it a
institution of the States, not recognized by internat
except, so far as the exact terms of the clause relatin
slaves extend[ed], not recognized by the Constitution
a fair summary of one of the initial premises of the op
to Somerset v Stewart (1772),143 Story declared that un
eral law of nations, no nation is bound to recognize
slavery."'" Story further declared that "The state o
deemed to be a mere municipal regulation, founded u
ited to the range of the territorial laws."145 Had Story
opinion here, it would have indeed "localized" slavery
good source for what Justice Story said. But William Wetmore was clear
his father's opinion, and by his father's attempt to hide the proslavery fo
Thus, William Wetmore edited out a key section of a letter to Senator
Justice Story set out a way that the South could avoid any aspects of the o
make it a triumph of freedom. Newmyer's own compelling analysis of Sto
William Wetmore's less than honest editing of his father's papers, undercuts
William Wetmore's attribution of the "triumph of freedom" statement t
Story to Berrien Letter (cited in note 13).
141 William Wetmore Story, Treatise on the Law of Contracts (Charles C
Brown, 1844).
142 William Story, ed, 2 Life and Letters of Story at 392 (cited in note 139)
143 Lofft 1 (GB, 1772).
'44 Prigg at 611.

145 Id.
Second, Story's son argued that the deci

"because it promised practically to nullify
being generally supposed to be impracticab
slaves in the free States, except with the
and State authority."'" This analysis was b
that without the active aid of state autho
peace, sheriffs, and the like-masters wou
actually remove a slave from the North. St
federal government had exclusive jurisdict
rendition and that state officials could n
federal government to enforce the law thus
withdrawal from aiding in the implementati
Clause or of enforcing the federal law. Wi
was again correct as far as it went. In his
that there was a "difference of opinion" as t
trates are bound to act under [the Fugitiv
not decide the issue.147 It was certainly poss
fore, that the states could withdraw thei
However, in his opinion Story also affirmed
opinion" was "entertained by this Court that
if they choose, exercise that authority, un
legislation.'"148 William Wetmore Story's
umph of freedom" was tied to this last poi
not enforce the federal law, no one could,
could be secure in their freedom. Some north
tors would in fact take advantage of this par
withdraw their support for enforcement of
whether Story intended the opinion to be a t
not, this part of the opinion allowed some
into such a triumph.149
Third, William Wetmore argued that by "
diction to Congress, power was put in th
people to remodel the law, and establish, thr
lation in favor of freedom; while, to permit
46 William Story, ed, 2 Life and Letters of Story at 393 (ci

147 Prigg at 622.
148 Id.
149 Paul Finkelman, Prigg v Pennsylvania and Northern State Courts: Anti-Slavery Use of a
Pro-Slavery Decision, 25 Civ War History 5 (1979).
sive jurisdiction to the States,

States of a voice in establishi
country, guarded by the stricte
each slave State to authorize
aries, under the most odious cir
cess, . . ."150 The faithful son
"[b]y this decision, the questi
national one, and open for dis
the North was given a full voic
B. THE FAMILY STORY UNMASKED
The claims of Joseph and William Wetmore for the

thrust of Prigg do not comport with the text of Stor
his career as a judge, or his actions after the decision.
1. The localization of slavery. The argument that Pr
slavery is inconsistent with the essence of William Wetm
very defense of the opinion and with the justice's c
lawyer, scholar, and judge, Story was a committed na
important Commentaries on the Constitution152 was "the
tial statement of constitutional nationalism made in the Nineteenth
Century."153 One aspect of Story's nationalism was his desire to
create a uniform federal common law. In Prigg, Story discovered
a federal common law right to recapture a slave. To understand
the continuity of Prigg with the rest of Story's jurisprudence, it is
necessary to briefly examine his lifelong commitment to a federal
common law.
In 1812, Story silently opposed154 the outcome in United States

v Hudson and Goodwin,155 where a bare majority of the Court found
that the national government could not enforce the common law
of crimes. A year later, in United States v Coolidge,156 Story, acting
as a Circuit Justice, deftly avoided Hudson and Goodwin in applying
150 William Story, ed, 2 Life and Letters of Story at 394-95 (cited in note 139).
151 Id at 101.
152 Joseph Story, Commentaries on the Constitution of the United States (Hilliard, Gray, &
Co., 1833).
153 Newmyer, Justice Joseph Story at 182 (cited in note 1).
154 Id at 101.
iss United States v Hudson and Goodwin, 7 Cranch (11 US) 32 (1812).
156 U.S. v Coolidge, 25 F Cases 619 (CCD Mass 1813).
federal common law to admiralty cases. T

mained unpersuaded by Story's argument
circuit court decision in Coolidge, on the bas
win.157 This reversal underscores Story's
federal common law, in spite of the Court
Unable to convince the Court of the im
common law, Story turned to the Congress.
win, Story urged Congress to pass legislat
Courts of the United States power to punish
against the Government, as at common la
sent a draft of such legislation to the At
1818 sent a similar proposal to Senator Dav
cut.159 In 1825, Congress amended the feder
on a draft that Story provided.'16 In 1842
Macpherson Berrien urging a recodificatio
law and the extension of the common law
jurisdiction.161
Story's attempts at creating a federal c
parallel his efforts in creating a federal com
cial cases. In 1812, while riding circuit,
common law to a diversity case.162 Thirty
Tyson,'63 Story would gain the support o
general federal common law for civil litigat
wrote the opinion in that case in the same t
Court's opinion in Prigg. Swift is the firs
volume of Peters' reports, and Prigg is the l
volume.
157 United States v Coolidge, 1 Wheat (14 US) 415 (1816).

1is Story to Nathaniel Williams, Oct 8, 1812, reprinted in William Story, ed, 1 Life and
Letters of Story at 243 (cited in note 139).
159 Story to Daniel Webster, Jan 4, 1824, reprinted in William Story, ed, 1 Life and Letters
of Story 435 at 437; 2 Life and Letters at 401 (cited in note 139). Newmyer, JusticeJoseph Story
at 103 (cited in note 1).
60 William Story, ed, 1 Life and Letters of Story at 437, 439-41; 2 Life and Letters of Story
at 403-04 (cited in note 139); "An Act more effectually to provide for the punishment of
certain crimes against the United States, and for other purposes," Act of March 3, 1825, 4
Stat 115.
161 Story to Berrien, Feb 8, 1842, William Story, ed, 1 Life and Letters of Story at 402-03
(cited in note 139); but see also Story to Berrien Letter (cited in note 13).
162 See Van Reimsdyk v Kane, 28 F Cases 1062 (CCD RI, 1812), discussed in Newmyer,
Justice Joseph Story at 100 (cited in note 1).
"16 Swift v Tyson, 16 Peters (41 US) 1 (1842).
Thus, Prigg, which nationali

federal common law, is consis
ment to a nationalistic appro
slavery, in Prigg he could not
slavery and create a federal c
slaves, just as he had tried thro
common law in other areas. Th
constitutionally protected com
Story declared:
We have said that the clause cont

recognition of the right of the o
by any state law or regulation
qualification or restriction of it
be so, then all the incidents to t
must, therefore, have the right
which the local laws of his own
erty; and we all know that this
is universally acknowledged in
This is hardly a localization o

specific declaration that some
be imposed on the North. Thi
"the state of slavery is deemed
founded upon and limited to t
Having made this point in his
Constitution fundamentally alte
gitive slave] clause was, there
safety and security of the sout
surrendered by them without e
slaves. The clause was accordi
by the unanimous consent of
its intrinsic and practical neces
Ironically, William Wetmore
decision undercut his localizat
ment was that by making the d
one," his father gave the Nor
'64 Prigg at 612.

165 Id at 611.
166 Id at 612.
167 William Story, ed, 2 Life and Letters of Story at 395 (cited in note 139).
In defending Prigg, William Wetmore St

opinion
conforms to those principles of interpretation in favor of the
Federal Government, which appear in his family letters, and
are developed in all his other constitutional opinions. It affirms
the doctrine, that the Constitution creates, not a mere confeder-
ation of States, but a government of the people, endowed with
all powers appropriate or incidental to carry out its provisions,
although not expressly surrendered by the States.1
Here the younger Story is correct. But, in recognizing his father's

lifelong commitment to judicial nationalism, the son undercut his
argument that Prigg localized slavery.
2. The practical nullification of the federal law. The argument for
practical nullification the fugitive slave law is the strongest one in
Story's favor. Indeed, the decision, in the end, did lead to a practi-
cal nullification of the federal law. After Prigg, many northern
judges refused to hear fugitive slave cases, free state officials refused
to help claimants, and some legislatures actually prohibited state
support for the federal law.169 However, it is important to make a
distinction between what state officials did after Prigg and what
Story intended in his decision.
It would have been completely out of character for Story to have
tried to sabotage his own decision. This simply was not his style.
As Robert Cover has argued, this would have been "a truly extraor-
dinary ameliorist effort.""17 Similarly, as Kent Newmyer noted,
"there are serious problems" with this analysis."171 It is hard to
believe that someone who devoted his entire life to the law-and
most of it to constitutional law and the Supreme Court-would
late in his career sabotage one of his most important nationalist
opinions in hopes of achieving a secret goal.
Second, Story did not necessarily want to remove all state partic-
ipation in the return of fugitive slaves. It is true that Story argued
for exclusive federal power to legislate about fugitive slave rendi-
tion. But, Story did not rule out active, and even legislatively
'68 Id at 392.
169 Finkelman, Prigg v Pennsylvania and Northern State Courts (cited in note 149), and Mor-
ris, Free Men All (cited in note 19).
170 Cover, Justice Accused at 241 (cited in note 10).
creative, state participation in

away slaves. He wrote:
We entertain no doubt whatsoev
their general police power, po
and restrain runaway slaves, and
ders, and otherwise to secure th
tions and evil example, as the
idlers, vagabonds, and paupers.1
In other words, Story hoped th

arresting and incarcerating f
under the federal law by som
Tied to this invitation for s
clear his hope that state office
declared: "As to the authority
while a difference of opinion
by this [C]ourt, that state mag
that authority ... ."173 This is
a strong national governmen
support the federal governmen
a thoroughgoing judicial nati
freedom only if northern stat
then passed legislation in oppos
But everything in Story's jud
gests that he hated states' rig
because states' rights claims we
and the constitutional nation
pitted Story's hostility to slave
to constitutional nationalism.
Third, the "triumph of fre
not only disliked slavery, bu
tionist. Any abolitionist thou
cret. Story's biographer argues
and "his sincere belief in Chr
172 Prigg at 625.

173 Id at 622.
174 This would in fact happen, and would lead to northern assertions of states' rights. See
the arguments of Ableman v Booth, 62 US (21 How) 506 (1859). See also Finkelman, Prigg
v Pennsylvania and Northern State Courts (cited in note 149), and Paul Finkelman, States Rights
North and South in Antebellum America, in Kermit Hall and James W. Ely, Jr., eds, An
Uncertain Tradition: Constitutionalism and the History of the South 125-58 (Athens, Ga, 1989).
decency,"'17 which slavery offended. Surely

as did most northerners. But Story was not
he opposed the abolitionists because their
the Union.
Fourth is the suspect source of this analysis. It does not come
from Story himself, or a disinterested second party to whom Story
made such a claim. Rather, the claim began with the writings of
Justice Story's son, William Wetmore. The dutiful son was more
committed to antislavery than his father, and may have hoped to
salvage the justice's reputation by this posthumous cleansing of the
interpretation of Prigg. As Kent Newmyer notes, when looking at
the evidence there is "the suspicion that a biographer must have of
an apologia written by a loving son.""176
The remaining evidence undermining the "triumph of freedom"
argument heightens these suspicions. The same evidence demol-
ishes the third leg of the "triumph of freedom" argument: that
Prigg provided the North with an opportunity to help shape the
federal government's relationship to slavery by remodeling the law
in favor of freedom. This evidence suggests both that Story's goal
in Prigg was to nationalize fugitive slave rendition, and that his son
deliberately hid information which undermined the "triumph of
freedom" argument.
3. The power to remodel the law in favor of freedom. Technically,
William Wetmore Story was right. Prigg opened the door for a
reconsideration of the federal role in the return of fugitive slaves.
An abolitionist-dominated Congress could have repealed the 1793
law without replacing it, and left slaveowners with neither state
nor federal law at their disposal. Or, a more moderate Congress
could have provided due process protections for free blacks, while
supporting the right of masters to capture runaways. A new federal
law might even have created a statute of limitations on the capture
of fugitive slaves, thus protecting people like Margaret Morgan.
Theoretically, Congress could have done all those things.
Realistically, all of these things were impossible. In 1842, as I
have already noted, slaveholders and their northern allies domi-
175 Newmyer, Justice Joseph Story at 373 (cited in note 1). Barbara Holden-Smith argues
that "Story's antislavery reputation has been exaggerated." Holden-Smith, 78 Cornell L
Rev at 1086 (cited in note 10).
"76 Newmyer, Justice Joseph Story at 373 (cited in note 1).
nated the American political

came from slave states. This
antislavery legislation. On to
ery president but John Quin
former slaveholder, nor a no
owed his political survival to
Eventually William Wetmore S
ion could lead to a remodeling
not until after 1861, when el
and antislavery was tied to C
Even if the politics of mid-c
freedom remodeling of the fug
want this to happen, and his
compiled his father's letters.
Shortly after the Court dec
John Macpherson Berrien of
tive matters. The letter began
tion on pieces of legislation
bankruptcy. This evidence su
had with Berrien, and thus m
important. Story then turned
that he had sent to Berrien. He reminded Berrien that he had
suggested in that proposed bill
that in all cases, where by the Laws of the U. States, powers
were conferred on State Magistrates, the same powers might be
exercised by Commissioners appointed by the Circuit Courts. I
was induced to make the provision thus general, because State
Magistrates now generally refuse to act, & cannot be compelled
to act; and the Act of 1793 respecting fugitive slaves confers
the power on State Magistrates to act in delivering up Slaves.
You saw in the case of Prigg . . . how the duty was evaded,
or declined. In conversing with several of my Brethren on the
Supreme Court, we all thought that it would be a great im-
provement, & would tend much to facilitate the recapture of
Slaves, if Commissioners of the Circuit Court were clothed
with like powers.177
Essentially, Story presented Senator Berrien with the solution

to the debate over federal exclusivity and the role of the states in
enforcing the Fugitive Slave Act. The federal government would
177 Story to Berrien Letter (cited in note 13).
supply the enforcement mechanism, throu

commissioners, and the enforcement would b
the nation. The fundamental problem wit
enact it in a Congress where northerners, wh
what opposed to slavery, controlled the Ho
Story, the justice, had the answer for Berrie
This might be done without creating the sligh

Congress, if the provision were made gene
then pass without observation. The Courts wou
missioners in every county, & thus meet the p
now presented by the refusal of State Magistr
unwise to provoke debate to insert a Special cl
section, referring to the fugitive Slave Act
you add at the end of the first section: "& sha
all the powers, that any State judge, Magist
the Peace may exercise under any other La
United States."'78
This was not the letter of a man hoping for

This was the letter of a justice committed
of federal power and the return of fugitiv
have both.
This letter is doubly damning for Story and the "triumph of

freedom" analysis. In the collection of his father's letters, Story's
son reprinted the first part of this letter, which dealt with bank-
ruptcy law, but failed to reprint the material quoted above. 179 Wil-
liam Wetmore Story deliberately hid the evidence which proved
that his father neither thought Prigg was a "triumph of freedom"
nor wanted it to be such. Prigg was a triumph of slavery, and the
author of the opinion of the court knew so. He also wanted to
insure that his handiwork would be implemented.
VI. JOSEPH STORY AND JUDICIAL NATIONALISM
Joseph Story was never a friend of slavery. During the de-

bates over the Missouri Compromise-more than a decade before
the abolitionists appeared on the national scene-Story had spoken
out against the expansion of the institution west of the Mississippi.
178 Id.
179 William Story, ed, 2 Life and Letters of Story at 404-05 (cited at note 139).
In the 1820s "no other New

fearful of Southern aggression
His circuit court opinion in Un
case involving the illegal Afr
the slave trade to New Englan
deep abhorrence of the slave tr
privately opposed Texas anne
opponents of the annexation,18
tional,"'18 and continued this
ation took place in 1845. Simi
abolitionist movement, Story
passed by Congress to preven
were "in effect a denial of the
As Story's best biographer h
"had spoken out consistently
and the slave trade."187 He w
Garrisonians often vilified hi
the institution come to an end.
Why then, did this justice from Massachusetts-who personally
found slavery abhorrent-take an unnecessarily pro-slavery posi-
tion in both Prigg and his treatise Commentaries on the Constitution?
The answer is rooted in Story's profound constitutional national-
ism. In his defense of Prigg, Justice Story's son noted that the
Fugitive Slave Clause "is in the national Constitution, and is a
national guarantee.'"189 Story himself made the same point in Prigg,
noting that the claim to a fugitive slave was a "a case 'arising under
the Constitution' " more or less obligating Congress to "prescribe
180 Newmyer, Justice Joseph Story at 350-51 (cited in note 1).

181 46 F Cases 832 (CCD Mass, 1822).
182 Joseph Story, A Charge to the GrandJuries in Boston, and Providence, 1819 (Boston, 1819),
reprinted in Paul Finkelman, ed, 1 The African Slave Trade (Garland, 1988). For the discussion
of a similar charge in 1838, see Newmyer, Justice Joseph Story at 345 (cited in note 1).
184 Id at 350-51.
185 Story to Ezekiel Bacon, April 1, 1844, in 2 Life and Letters of Story at 481.
186 Story to Harriet Martineau, Jan 19, 1839, in William Story, ed, 2 Life and Letters of
Story at 307 (cited in note 139).
188 Id at 345-46.
189 William Story, ed, 2 Life and Letters of Story at 386 (cited at note 139).
the mode and extent in which it shall be

under what circumstances the proceedings
protection and guaranty to the right."'" I
believed that the Constitution required him
masters to recover fugitive slaves. In Prigg,
gress had the exclusive power to regulate the
slaves. This is one of the earliest examples we
law of the preemption doctrine.191 Prigg gav
to use this doctrine to further strengthen th
It was an opportunity he could not pass up
was the freedom of some free blacks and
was a cost Story was willing to pay, as long a
retelling in his own way the stories he told a
Convention, the precedents of the state cour
Morgan, and his own decision.
190 Prigg at 616.
191 Another example might be Gibbons v Ogden, 22 US (9

different context, T. Alexander Aleinikoff notes a connect
over the scope of the commerce power" and "the explosive
regulate the internal slave trade." He believes this "helps
nationalist opinions of Chief Justice Marshall in Gibbons v O
v Pennsylvania. .. ." T. Alexander Aleinikoff, A Case for Rac
1060 at 1086-87 (1991).

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Story Telling on the Supreme Court: Prigg v Pennsylvania and Justice Joseph Story's

STORY TELLING ON THE SUPREME

COURT: PRIGG v PENNSYLVANIA AND

JUSTICE JOSEPH STORY'S JUDICIAL

Few scholars dispute Justice Joseph Story's en

Paul Finkelman is Visiting Associate Professor of Law, Chica

? 1995 by The University of Chicago. All rights reserved.

for the development of serious legal edu

3 A. Leon Higginbotham, An Open Letter to Clarence Thom

case in which an otherwise sc

12 Holden-Smith, 78 Cornell L Rev (cited

ery Supreme Court,16 and more often th

16 As of 1842, when the Court heard Prigg, 19 of the 29

might use his Prigg opinion to

Supreme Court justice. Prigg, however, f

In 1837, Nathan S. Beemis, Edward Prigg, and two other

In his Opinion of the Court, Justice Joseph Story reached five

25 Dred Scott v Sandford, 19 How (60 US) 393 (1857).

owner (or an owner's agent) t

This conclusion was extraordin

any state interference or even a hearing b

31 Id at 668 (McLean dissenting).

left the North powerless to pre

After summarizing its procedural history, Story acknowl-

A. STORY'S HISTORY OF THE FUGITIVE SLAVE CLAUSE

Historically, it is well known, that the object of this clause was

He then elaborated on this argument. He compared the Fugitiv

for a Fugitive Slave Clause, alo

The Constitution was presented to the states for adoption, with

3. The implications of Story's history. These arguments-that the

compromise and that this was well known

had not considered the clause

B. THE REAL HISTORY OF THE FUGITIVE SLAVE CLAUSE

Story's assertion that the clause was an essential elem

so See note 48 supra.

article of the draft constitution.s5 Event

" The only other response to Butler's proposal was Roger

a great deal of debate during th

The idea that strikes those, w

Similarly, "A Friend of the Rights of People" asked, "Can we then

to have publicly discussed the fugitive slav

strengthened his argument in f

C. JUSTICE STORY'S HISTORY AND THE PROSLAVERY CONSTITUTION

Story's history of the origin of the Fugitive Slave Clause does

support his goal of nationalizing the law. B

Significantly, at the Convention and in its aftermath, no on

66 Charles Cotesworth Pinckney, Speech in South Carolina House of Representatives,

inconvenience by the slave-ho

69 See the correspondence of Moses Brow

In Prigg, Story expanded and shifted th

III. THE SECOND STORY: THE RELEVANT PRECEDENTS

In upholding all aspects of the Fugitive Slave Law of 1793,

newspapers and cited by an important Ohio

A. THE JUSTICE'S STORY ABOUT THE RELEVAN

Despite the mixed response of state courts

naturally been brought under adjudication in several states

He noted in passing that no federal court had ever denied the

the state cases supported that g

B. THE REAL CASE LAW

Story's use of state cases to bolster his opinion was

This division is not simply a 2-2-1 split among stat

reference to a specific constitutional provisio