Prigg v. Pennsylvania
41 U.S. 539 (1842)

Annotate this Case

U.S. Supreme Court

Prigg v. Pennsylvania, 41 U.S. 16 Pet. 539 539 (1842)

Prigg v. Pennsylvania

41 U.S. (16 Pet.) 539

Syllabus

A writ of error to the Supreme Court of Pennsylvania, brought under the twenty-fifth section of the Judiciary Act of 1789, to revise the judgment of that Court on a case involving the construction of the Constitution and laws of the United States.

Edward Prigg, a citizen of the State of Maryland, was indicted for kidnapping in the Court of Oyer and Terminer of York County, Pennsylvania, for having forcibly taken and carried away from that county to the State of Maryland a negro woman named Margaret Morgan with the design and intention of her being held, sold, and disposed of as a slave for life, contrary to a statute of Pennsylvania passed on the twenty-sixth day of March, 1826. Edward Prigg pleaded not guilty, and the jury found a special verdict on which judgment was rendered for the Commonwealth of Pennsylvania. The case was removed to the Supreme Court of the State, and the judgment of the Court of Oyer and Terminer was pro forma affirmed, and the case was carried to the Supreme Court of the United States, the constitutionality of the law under which the indictment was found being denied by the counsel of the State of Maryland, which State had undertaken the defense for Edward Prigg and prosecuted the writ of error. The cause was brought to the Supreme Court, with the sanction of both the States of Maryland and Pennsylvania, with a view to have the questions in the case settled. Margaret Morgan was the slave for life, under the laws of Maryland, of Margaret Ashmore, a citizen of that State. In 1832, she escaped and fled from the State into Pennsylvania. Edward Prigg, having been duly appointed the agent and attorney of Margaret Ashmore and having obtained a warrant from a justice of the peace of York County, caused Margaret Morgan to be taken, as a fugitive from labor, by a constable of the State of Pennsylvania, before the magistrate, who refused to take cognizance of the case, and thereupon Edward Prigg carried her and her children into Maryland and delivered them to Margaret Ashmore. The children were born in Pennsylvania, one of them more than a year after Margaret Morgan had fled and escaped from Maryland.

By the first section of the act of Assembly of Pennsylvania of 25th March, 1826, it is provided that if any person shall, by force and violence, take and carry away, or shall by fraud or false pretence attempt to take, carry away, or seduce any negro or mulatto from any part of the Commonwealth, with a design or intention of selling and disposing of, or keeping or detaining, such negro or mulatto as a slave or servant for life, or for any other term whatsoever, such person, and all persons aiding and abetting him, shall, on conviction thereof, be deemed guilty of a felony, and shall forfeit and pay a sum not less than five hundred nor more than three thousand dollars, and shall be sentenced to undergo a servitude for any term or terms of years not less than seven years nor exceeding twenty-one years, and shall be confined and kept at hard labor, &c. Other provisions are contained in the act, and it was passed in 1826, as declared in its title, to aid in carrying into effect the Constitution and laws of the United States relating to fugitives from labor, and, on the application to the legislature by commissioners from the State of Maryland,

Page 41 U. S. 540

with a view to meet the supposed wishes of the State of Maryland on the subject of fugitive slaves, but it had failed to produce the good effects intended.

By the Court:

It will probably be found, when we look to the character of the Constitution of the United States itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as to the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. Perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the light and aids of contemporary history, and to give to the words of each just such operation, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.

It is historically well known that the object of the clause in the Constitution of the United States relating to persons owing service and labor in one state escaping into other states 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 institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevailing in the non-slaveholding States by preventing them from intermeddling with or obstructing or abolishing the rights of the owners of slaves.

By the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves within its territorial dominions when it is opposed to its own policy and institutions in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation founded upon and limited to the range of the territorial laws.

The clause of the Constitution of the United States relating to fugitives from labor manifestly contemplates the existence of a positive unqualified right on the part of the owner of the slave which no state law or regulation can in any way qualify, regulate, control, or restrain. Any state law or regulation which interrupts, limits, delays, or postpones the rights of the owner to the immediate command of his service or labor operates pro tanto a discharge of the slave therefrom. The question can never be how much he is discharged from, but whether he is discharged from any by the natural or necessary operation of the state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive right.

The owner of a fugitive slave has the same right to seize and take him in a State to which he has escaped or fled that he had in the State from which he escaped, and it is well known that this right to seizure or recapture is universally acknowledged in all the slaveholding States. The Court have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of the slave is clothed with

Page 41 U. S. 541

the authority in every State of the Union to seize and recapture his slave wherever he can do it without any breach of the peace or illegal violence. In this sense and to this extent, this clause in the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national.

The Constitution does not stop at a mere annunciation of the rights of the owner to seize his absconding or fugitive slave in the State to which he may have fled. If it had done so, it would have left the owner of the slave, in many cases, utterly without any adequate redress.

The Constitution declares that the fugitive slave shall be delivered up on claim of the party to whom service or labor may be due. It is exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some further remedial redress than that which might be administered at the hand of the owner himself. "A claim" is to be made.

"A claim," in a just juridical sense, is a demand of some matter as of right, made by one person upon another to do or to forbear to do some act or thing as a matter of duty.

It cannot well be doubted that the Constitution requires the delivery of the fugitive on the claim of the master, and the natural inference certainly is that the National Government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort would seem to be that, where the end is required, the means are given, and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted.

The clause relating to fugitive slaves is found in the national Constitution, and not in that of any State. It might well be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the National Government nowhere delegated or entrusted to them by the Constitution. On the contrary, the natural, if not the necessary, conclusion is that the National Government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, executive, or judiciary, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution.

A claim to a fugitive slave is a controversy in a case "arising under the Constitution of the United States" under the express delegation of judicial power given by that instrument. Congress, then, may call that power into activity for the very purpose of giving effect to the right, and, if so, then it may prescribe the mode and extent to which it shall be applied, and how and under what circumstances the proceedings shall afford a complete protection and guaranty of the right.

The provisions of the sections of the act of Congress of 12th February, 1793, on the subject of fugitive slaves, as well as relative to fugitives from justice, cover both the subjects not because they exhaust the remedies which may be applied by Congress to enforce the rights if the provisions shall be found, in practice, not to attain the objects of the Constitution, but because they point out all the modes of attaining those objects which Congress have as yet deemed expedient and proper. If this is so, it would seem upon just principles of construction that the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject, and, by necessary implication, prohibit it. For, if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it is a given manner,

Page 41 U. S. 542

and in a certain form, it cannot be that the state legislatures have a right to interfere. This doctrine was fully recognized in the case of Houston v. Moore, 5 Wheat. 1, 18 U. S. 21-22. Where Congress have exclusive power over a subject, it is not competent for state legislation to add to the provisions of Congress on that subject.

Congress have, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given and duties expressly enjoined by the Constitution. The end being required, it has been deemed a just and necessary implication that the means to accomplish it are given also, or, in other words, that the power flows as a necessary means to accomplish the ends.

The constitutionality of the act of Congress relating to fugitives from labor has been affirmed by the adjudications of the state tribunals, and by those of the Courts of the United States. If the question of the constitutionality of the law were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognitions would, in the judgment of the Court, entitle the question to be considered at rest. Congress, the Executive, and the Judiciary have, upon various occasions, acted upon this as a sound and reasonable doctrine. Cited, Stuart v. Laird, 1 Cranch 299; Martin v. Hunter's Lessee, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat. 264.

The provisions of the act of 12th February, 1793, relative to fugitive slaves is clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority on state magistrates, is free from reasonable doubt or difficulty. As to the authority so conferred on state magistrates, while a difference of opinion exists, and may exist on this point in different States, whether state magistrates are bound to act under it, none is entertained by the Court that state magistrates may, if they choose, exercise the authority unless prohibited by state legislation.

The power of legislation in relation to fugitives from labor is exclusive in the National Legislature. Cited, Sturgis v. Crowninshield, 4 Wheat. 122, 17 U. S. 193.

The right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever State of the Union they may be found is, under the Constitution, recognized as an absolute positive right and duty pervading the whole Union with an equal and supreme force uncontrolled and uncontrollable by state sovereignty or state legislation.

The right and duty are coextensive and uniform in remedy and operation throughout the whole Union. The owner has the same security, and the same remedial justice, and the same exemption from state regulations and control, through however many State he may pass with the fugitive slave in his possession in transitu to his domicile.

The Court are by no means to be understood in any manner whatever to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the States, and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision of the Constitution relating to fugitive slaves, which is exclusively derived from the Constitution and obtains its whole efficiency therefrom.

The Court entertain no doubt whatsoever that the States, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and to remove them from their borders and otherwise to secure themselves against their depredations

Page 41 U. S. 543

and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with or regulated by such a course, and, in many cases, they may be promoted by the exercise of the police power. Such regulations can never be permitted to interfere with or obstruct the just rights of the owner to reclaim his slave derived from the Constitution of the United States or with the remedies prescribed by Congress to aid and enforce the same.

The act of the Legislature of Pennsylvania upon which the indictment against Edward Prigg is founded is unconstitutional and void. It purports to punish as a public offense against the State the very act of seizing and removing a slave by his master which the Constitution of the United States was designed to justify and uphold.

The defendant in error, Edward Prigg, with Nathan S. Bemis, Jacob Forward, and Stephen Lewis, Jr., were indicted by the grand jury of York county, Pennsylvania, for that, on the first day of April 1837, upon a certain negro woman, named Margaret Morgan, with force and violence, they made an assault, and with force and violence, feloniously did take and carry her away from the County of York, within the Commonwealth of Pennsylvania, to the State of Maryland, with a design and intention there to sell and dispose of the said Margaret Morgan, as and for a slave and servant for life.

Edward Prigg, one of the defendants, having been arraigned, pleaded not guilty.

The cause was tried before the court of quarter sessions of York county, on the 22d day of May 1839; and the jury found the following special verdict:

"That, at a session of the General Assembly of the Commonwealth of Pennsylvania, holden at the City of Philadelphia, on the first day of March, 1780, the following law was passed and enacted, to-wit,"

" An act for the gradual abolition of slavery:"

" 1. Sec. III. All persons, as well negroes and mulattoes, as others, who shall be born within this State shall not be deemed and considered as servants for life or slaves, and all servitude for life, or slavery of children, in consequence of 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 forever abolished."

" 2. Sec. IV. Provided always, that every negro and mulatto

Page 41 U. S. 544

child, born within this State, after the passing of this act as aforesaid (who would, in case this act had not been made, have been born a servant for years, or life, or a slave) shall be deemed to be, and shall be, by virtue of this act, the servant of such persons, or her or his assigns, who would, in such case, have been entitled to like relief, in case he or she shall be evilly treated by his or her master or mistress, and to like freedom dues and other privileges, as servants bound by indenture for four years are or may be entitled, unless the person to whom the service of any such child shall belong, shall abandon his or her claim to the same, in which case, the overseers of the poor of the city, or township or district, respectively, where such child shall be so abandoned shall, by indenture, bind out every child so abandoned as an apprentice for a time not exceeding the age hereinbefore limited for the service of such children."

" 3. Sec. V. Every person who is, or shall be, the owner of any negro or mulatto slave or servants for life, or till the age of thirty-one years, now within this State, or his lawful attorney, shall, on or before the first day of November next, deliver or cause to be delivered in writing to the clerk of the peace of the county, or to the clerk of the court of sessions of the City of Philadelphia, in which he or she shall respectively inhabit, the name and surname, and occupation or profession, of such owner, and the name of the county and township, district or ward wherein he or she resideth; and also the name and names of any such slave and slaves, and servant and servants for life, and till the age of thirty-one years, within this State, who shall be such on the said first day of November next, from all other persons; which particulars shall, by said clerk of the sessions and clerk of the said city court, be entered in books to be provided for that purpose by the said clerks; and no negro or mulatto now within this State shall, from and after the said first day of November, be deemed a slave or servant for life, or till the age of thirty-one years, unless his or her name shall be entered as aforesaid on such records, except such negro or mulatto slaves and servants as are hereinafter excepted; the said clerk to be entitled to a fee of two dollars for each slave or servant so entered as aforesaid, from the treasury of the county, to be allowed to him in his accounts."

" 4. Sec. VI. Provided always, that any person in whom the

Page 41 U. S. 545

ownership or right to the service of any negro or mulatto shall be vested at the passing of this act, other than such as are hereinbefore excepted, his or her heirs, executors, administrators and assigns, and all and every of them, severally, shall be liable to the overseers of the poor of the city, township or district to which any such negro or mulatto shall become chargeable, for such necessary expense, with costs of suit thereon, as such overseers may be put to, through the neglect of the owner, master or mistress of such negro or mulatto, notwithstanding the name and other descriptions of such negro or mulatto shall not be entered and recorded as aforesaid, unless his or her master or owner shall, before such slave or servant obtain his or her twenty-eighth year, execute and record in the proper county, a deed or instrument securing to such slave or servant his or her freedom."

" 6. Sec. VIII. In all cases wherein sentence of death shall be pronounced against a slave, the jury before whom he or she shall be tried shall appraise and declare the value of such slave, and in case such sentence be executed, the court shall make an order on the state treasurer, payable to the owner for the same, and for the costs of prosecution, but in case of remission or mitigation, for the costs only."

" 7. Sec. IX. The reward for taking up runaway and absconding negro and mulatto slaves and servants, and the penalties for enticing away, dealing with, or harboring, concealing or employing negro and mulatto slaves and servants, shall be the same, and shall be recovered in like manner, as in case of servants bound for four years."

" 8. Sec. X. No man or woman of any nation or color, except the negroes or mulattoes who shall be registered as aforesaid, shall at any time hereafter be deemed adjudged or holden within the territories of this Commonwealth as slaves or servants for life, but as free men and free women; except the domestic slaves attending upon delegates in Congress from the other American States, foreign ministers and consuls, and persons passing through or sojourning in this State, and not becoming resident therein, and seamen employed in ships not belonging to any inhabitant of this State, nor employed in any ship owned by any such inhabitant; provided, such domestic slaves shall not be alienated or sold to any inhabitant, nor (except in the case of members of Congress,

Page 41 U. S. 546

foreign ministers and consuls) retained in this State longer than six months."

" 9. Sec. XI. (Repealed 25th March, 1826.)"

" Sec. XII. And whereas, attempts may be made to evade this act by introducing into this State negroes and mulattoes bound by covenant to serve for long and unreasonable terms of years if the same be not prevented: Therefore --"

" 10. Sec. XIII. No covenant of personal servitude or apprenticeship whatsoever shall be valid or binding on a negro or mulatto for a longer time than seven years, unless such servant apprentice were at the commencement of such servitude or apprenticeship under the age of twenty-one years, in which case such negro or mulatto may be holden as a servant or apprentice, respectively, according to the covenant, as the case shall be, until he or she shall attain the age of twenty-eight years, but no longer."

" Sec. XIV. That this act, or anything herein contained, shall not give any relief or shelter to any absconding or runaway negro or mulatto slave or servant who has absconded himself, or shall abscond himself, from his or her owner, master or mistress residing in any other State or country, but such owner, master or mistress shall have like right and aid to demand, claim, and take away his slave or servant as he might have had in case this act had not been made, and that all negro and mulatto slaves now owned and heretofore resident in other States who have absconded themselves or been clandestinely carried away, or who may be employed abroad as seamen, and have not absconded or been brought back to their owners, masters, or mistresses before the passing of this act may, within five years, be registered as effectually as is ordered by this act concerning those who are not within this State, on producing such slave before any two justices of the peace, and satisfying the said justices, by due proof, of his former residence, absconding, running away, or absence of such slaves as aforesaid, who thereupon shall direct and order the said slaves to be entered on the record as aforesaid."

And the jurors further found, that, at a session of the General Assembly of the Commonwealth of Pennsylvania, holden at the City of Philadelphia, on the 29th day of March 1788, the

Page 41 U. S. 547

following law was passed and enacted,

"An act to explain and amend 'an act for the gradual abolition of slavery,'"

"Sec. I. For preventing many evils and abuses arising from ill-disposed persons availing themselves of certain defects in the act for the gradual abolition of slavery, passed on the first day of March, in the year of our Lord 1780, be it enacted:"

"Sec. II. The exception contained in the tenth section of the act of the first of March, 1780, relative to domestic slaves, attending upon persons passing through or sojourning in this State and not becoming resident therein, shall not be deemed or taken to extend to the slaves of such persons as are inhabitants of, or resident in, this State, or who shall come here, with an intention to settle and reside; but all and every slave or slaves who shall be brought into this State by persons inhabiting or residing therein or intending to inhabit or reside therein shall be immediately considered, deemed, and taken to be free to all intents and purposes."

"Sec. III. No negro or mulatto slave, or servant for term of years (except as in the last exception of the tenth section of the said act, is excepted), shall be removed out of this State, with the design and intention that the place of abode or residence of such slave or servant shall be thereby altered or changed, or with the design and intention that such slave or servant, if a female and pregnant, shall be detained and kept out of this State till her delivery of the child of which she is or shall be pregnant, or with the design and intention that such slave or servant shall be brought again into this State, after the expiration of six months from the time of such slave or servant having been first brought into this State, without his or her consent, if of full age, testified upon a private examination, before two justices of the peace of the city or county in which he or she shall reside, or being under the age of twenty-one years, without his or her consent, testified in manner aforesaid, and also without the consent of his or her parents, if any such there be, to be testified in like manner aforesaid, whereof the said justices, or one of them, shall make a record, and deliver to the said slave or servant a copy thereof, containing the name, age, condition and the place of abode of such slave or servant, the reason of such removal, and the place to which he

Page 41 U. S. 548

or she is about to go; and if any person or persons whatsoever shall sell or dispose of any such slave or servant, to any person out of this State, or shall send or carry, or cause to be sent or carried, any such slave or servant, out of this State for any of the purposes aforesaid, whereby such slave or servant would lose those benefits and privileges which by the laws of this State are secured to him or her, and shall not have obtained all such consent as by this act is required, testified in the manner before mentioned, every such person and persons, his and their aiders and abettors, shall severally forfeit and pay, for every such offense, the sum of seventy-five pounds, to be recovered in any court of record, by an action of debt, bill, plaint or information at the suit of any person who will sue for the same; one moiety thereof, when recovered, for the use of the plaintiff, the other moiety for the use of the poor of the city, township or place from which such slave or servant shall be taken and removed."

"Sec. IV. All persons who now are, or hereafter shall be, possessed of any child or children, born after the first day of March, 1780, who would, by the said act, be liable to serve till the age of twenty-eight years, shall on or before the first day of April, 1789, or within six months next after the birth of any such child, deliver or cause to be delivered, in writing, to the clerk of the peace of the county, or the clerk of the court of record of the City of Philadelphia, in which they shall respectively inhabit, the name, surname, and occupation or profession of such possessor, and of the county, township, district or ward in which they reside, and also the age (to the best of his or her knowledge), name and sex of every such child or children, under the pain and penalty of forfeiting and losing all right and title to every such child and children, and of him, her or them immediately becoming free; which said return or account in writing shall be verified by the oath or affirmation of the party, which the said clerks are hereby respectively authorized and required to administer, and the said clerks shall make and preserve records thereof, copies and extracts of which shall be good evidence in all courts of justice, when certified under their hands and seals of office; for which oath or affirmation, and entry or extract, the said clerks shall be respectively entitled to one shilling and six-pence, and no more,

Page 41 U. S. 549

to be paid by him or her, who shall so as aforesaid make such entry, or demand the extract aforesaid."

"And whereas it has been represented to this House that vessels have been fitted out and equipped in this port for the iniquitous purpose of receiving and transporting the natives of Africa to places where they are held in bondage, and it is just and proper to discourage, as far as possible, such proceedings in future:"

"Sec. V. If any person or persons shall build, fit, equip, man or otherwise prepare any such ship or vessel within any port of this State, or shall cause any ship or other vessel to sail from any port of this State for the purpose of carrying on a trade or traffic in slaves to, from, or between Europe, Asia, Africa, or America, or any place or countries whatsoever, or of transporting slaves to or from one port or place to another in any part or parts of the world, such ship or vessel, her tackle, furniture, apparel, and other appurtenances shall be forfeited to the Commonwealth, and shall be liable to be seized and prosecuted by any officer of the customs or other person, by information in rem, in the supreme court or in the county court of common pleas for the county wherein such seizure shall be made, whereupon such proceedings shall be had, both unto and after judgment, as in and by the impost laws of this Commonwealth in case of seizure is directed. And moreover, all and every person and persons so building, fitting out, manning, equipping, or otherwise preparing or sending away any ship or vessel, knowing or intending that the same shall be employed in such trade or business contrary to the true intent and meaning of this act, or in any wise aiding or abetting therein, shall severally forfeit and pay the sum of one thousand pounds, one moiety thereof to the use of the Commonwealth and the other moiety thereof to the use of him or her who will sue for the same, by action, debt, bill, plaint, or information."

"And whereas, the practice of separating, which is too often exercised by the masters and mistresses of negro and mulatto slaves, or servants for term of years, in separating husbands and wives, and parents and children, requires to be checked so far as the same may be done without prejudice to such masters or mistresses:"

"Sec. VI. If any owner or possessor of any negro, mulatto slave or slaves, or servant or servants for term of years, shall, from and

Page 41 U. S. 550

after the first day of July next separate or remove, or cause to be separated or removed, a husband from his wife, or wife from her husband, a child from his or her parents, or a parent from a child, or any or either of the descriptions aforesaid, to a greater distance than ten miles, with the design and intention of changing the habitation or place of abode of such husband or wife, parent or child, unless such child shall be above the age of four years, without the consent of such slave or servant for life or years shall have been obtained and testified in the manner hereinbefore described, such person or persons shall severally forfeit and pay the sum of fifty pounds, with costs of suit, for every such offense, to be recovered by action of debt, bill, plaint, or information in the supreme court or in any court of common pleas at the suit of any person who will sue for the same, one moiety thereof, when recovered, for the use of the plaintiffs, the other moiety for the use of the poor of the city, township, or place from which said husband or wife, parent or child, shall have been taken and removed."

(Sec. VII. Repealed 27th March, 1820, and 25th March, 1826.)

And the jurors further found, that, at a session of the General Assembly of the Commonwealth of Pennsylvania, holden at Harrisburg, on the 25th day of March, 1826, the following law was passed,

"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 prevent kidnapping."

"Sec. I. If any person or persons shall, from and after the passing of this act, 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 intention 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, every such person or persons, his or their aiders or abettors, shall on conviction thereof, in any court of this Commonwealth having competent jurisdiction, be deemed guilty of a felony, and shall forfeit and pay at the discretion of the court

Page 41 U. S. 551

passing the sentence, a sum not less than five hundred, nor more than one thousand dollars, one-half whereof shall be paid to the person or persons who shall prosecute for the same, and the other half to this Commonwealth, and moreover shall be sentenced to undergo a servitude for any term or terms not less than seven years nor exceeding twenty-one years, and shall be confined and kept to hard labor, fed, and clothed in the manner as is directed by the penal laws of this Commonwealth for persons convicted of robbery."

"Sec. II. If any person or persons shall, hereafter, knowingly sell, transfer or assign, or shall, knowingly, purchase, take or transfer an assignment of any negro or mulatto for the purpose of fraudulently removing, exporting or carrying said negro or mulatto out of this State, with the design or intent, by fraud or false pretences, of making him or her a slave or servant for life, or for any term whatsoever, every person so offending shall be deemed guilty of a felony, and on conviction thereof, shall forfeit and pay a fine of not less than five hundred dollars nor more than two thousand dollars, one-half whereof shall be paid to the person or persons who shall prosecute for the same, and the other half to the Commonwealth, and moreover shall be sentenced, at the discretion of the court, to undergo a servitude for any term or time not less than seven years, nor exceeding twenty-one years, and shall be confined, kept to hard labor, fed and clothed in the same manner as is directed by the penal laws of this Commonwealth for persons convicted of robbery."

"Sec. III. When a person held to labor or servitude in any of the United States, or in either of the territories thereof, under the laws thereof, shall escape into this Commonwealth, the person to whom such labor or service is due, his or her duly authorized agent or attorney, constituted in writing, is hereby authorized to apply to any judge, justice of the peace or alderman, who, on such application, supported by the oath or affirmation of such claimant, or authorized agent or attorney as aforesaid, that the said fugitive hath escaped from his or her service, or from the service of the person for whom he is duly constituted agent or attorney, shall issue his warrant, under his hand and seal, and directed to the sheriff, or any constable of the proper city or county, authorizing and empowering said sheriff or constable, to

Page 41 U. S. 552

arrest and seize the said fugitive, who shall be named in said warrant, and to bring said fugitive before a judge of the proper county, which said warrant shall be in the form or to the following effect:"

"State of Pennsylvania, _____ county, ss."

" The Commonwealth of Pennsylvania, to the sheriff or any constable of _____ county, greeting: Whereas, it appears by the oath, or solemn affirmation, of _____ _____, that _____ _____, was held to labor or service to _____ _____, of _____ county, in the State of _____, and the said _____ _____ hath escaped from the labor and service of the said _____ _____: You are therefore commanded, to arrest and seize the body of the said _____ _____, if he be found in your county, and bring him forthwith before the person issuing the warrant, if a judge (or if a justice of the peace or alderman) before a judge of the court of common pleas, or of the district court, as the case may be, of your proper county, or recorder of a city, so that the truth of the matter may be inquired into, and the said _____ _____ be dealt with as the Constitution of the United States, and the laws of this Commonwealth direct."

" Witness our said judge (or alderman, or justice, as the case may be) at this ___ day of _____, in the year of our Lord one thousand eight hundred and _____."

"By virtue of such warrant the person named therein may be arrested by the proper sheriff or constable to whom the same shall be delivered, within the proper city or county."

"Sec. IV. No judge, justice of the peace or alderman shall issue a warrant on the application of any agent or attorney, as provided in the said third section, unless the said agent or attorney shall, in addition to his own oath or affirmation, produce the affidavit of the claimant of the fugitive, taken before and certified by a justice of the peace or other magistrate authorized to administer oaths, in the State or territory in which such claimant shall reside, and accompanied by the certificate of the authority of such justice or other magistrate, to administer oaths, signed by the clerk or prothonotary, and authenticated by the seal of a court of record, in such State or territory; which affidavit shall state the

Page 41 U. S. 553

said claimant's title to the service of such fugitive and also the name, age and description of the person of such fugitive."

"Sec. V. It shall be the duty of any judge, justice of the peace, or alderman, when he grants or issues any warrant under the provisions of the third section of this act, to make a fair record on his docket of the same in which he shall enter the name and place of residence of the person on whose oath or affirmation the said warrant may be granted, and also, if an affidavit shall have been produced under the provisions of the fourth section of this act, the name and place of residence of the person making such affidavit, and the age and description of the person of the alleged fugitive contained in such affidavit, and shall, within ten days thereafter, file a certified copy thereof in the office of the clerk of the court of general quarter sessions of the peace, or mayor's court of the proper city or county; and any judge, justice of the peace or alderman who shall refuse or neglect to comply with the provisions of this section shall be deemed guilty of a misdemeanor in office, and shall, on conviction thereof, be sentenced to pay, at the discretion of the court, any sum not exceeding one thousand dollars, one-half to the party prosecuting for the same, and the other half to the Commonwealth. And any sheriff or constable, receiving and executing the said warrant shall, without unnecessary delay, carry the person arrested before the judge, according to the exigency of the warrant. And any sheriff or constable who shall refuse or wilfully neglect so to do shall, on conviction thereof, be sentenced to pay at the discretion of the court any sum not exceeding five hundred dollars, one-half to the party prosecuting for the same and the other half to the Commonwealth, or shall also be sentenced to imprisonment at hard labor for a time not exceeding six months, or both."

"Sec. VI. The said fugitive from labor or service, when so arrested, shall be brought before a judge as aforesaid and, upon proof to the satisfaction of such judge that the person so seized or arrested doth, under the laws of the State or authority from which she or he fled from service or labor, to the person claiming him or her, it shall be the duty of such judge to give a certificate thereof to such claimant, his or her duly authorized agent or attorney, which shall be sufficient warrant for removing the said fugitive to the State or territory from which she or he fled:

Page 41 U. S. 554

Provided, that the oath of the owner or owners, or other person interested, shall in no case be received in evidence before the judge, on the hearing of the case."

"Sec. VII. When the fugitive shall be brought before the judge, agreeably to the provisions of this act, and either party allege and prove to the satisfaction of the said judge that he or she is not prepared for trial, and have testimony material to the matter in controversy that can be obtained in a reasonable time, it shall and may be lawful, unless security satisfactory to the said judge be given for the appearance of the said fugitive on a day certain, to commit the said fugitive to the common jail for safekeeping, there to be detained at the expense of the owner, agent, or attorney for such time as the judge shall think reasonable and just, and to a day certain, when the said fugitive shall be brought before him by habeas corpus in the courthouse of the proper county, or in term-time at the chamber of the said judge, for final hearing and adjudication: Provided, that if the adjournment of the hearing be requested by the claimant, his agent or attorney, such adjournment shall not be granted unless the said claimant, his agent or attorney, shall give security satisfactory to the judge to appear and prosecute his claim on the day to which the hearing shall be adjourned: Provided that, on the hearing last mentioned, if the judge committing the said fugitive or taking the security as aforesaid should be absent, sick, or otherwise unable to attend, it shall be the duty of either of the other judges, on notice given, to attend to the said hearing and to decide thereon."

"Sec. VIII. The officer which may or shall be employed in the execution of the duties of this act shall be allowed the same fees for service of process that sheriffs within this Commonwealth are now allowed for serving process in criminal cases, and two dollars and fifty cents per day for each and every day necessarily spent in performing the duties enjoined on them by this acts to be paid by the owner, agent, or attorney immediately on the performance of the duties aforesaid."

"Sec. IX. No alderman or justice of the peace of this Commonwealth shall have jurisdiction or take cognizance of the case of any fugitive from labor from any of the United States or territories, under a certain act of Congress, passed on the tenth day of February 1793,

Page 41 U. S. 555

entitled 'an act respecting fugitives from justice, and persons escaping from the service of their masters;' nor shall any alderman or justice of the peace of this Commonwealth issue or grant any certificate or warrant of removal of any such fugitive from labor as aforesaid, except in the manner and to the effect provided in the third section of this act, upon the application, affidavit or testimony of any person or persons whatsoever, under the said act of Congress, or under any other law, authority or act of the Congress of the United States; and if any alderman or justice of the peace of this Commonwealth shall, contrary to the provision of this act, take cognizance or jurisdiction of the case of any such fugitive as aforesaid except in the manner hereinbefore provided, or shall grant or issue any certificate or warrant of removal as aforesaid, then and in either case he shall be deemed guilty of a misdemeanor in office and shall, on conviction thereof, be sentenced to pay at the discretion of the court any sum not less than five hundred dollars nor exceeding one thousand dollars, one-half thereof to the party prosecuting for the same and the other half to the use of the Commonwealth."

"Sec. X. It shall be the duty of the judge or recorder of any court of record in this Commonwealth, when he grants or issues any certificate or warrant of removal of any negro or mulatto claimed to be a fugitive from labor to the State or territory from which he or she fled, in pursuance of an act of Congress passed the 12th day of February 1793 entitled 'an act respecting fugitives from justice and persons escaping from the service of their masters,' and of this act, to make a fair record of the same in which he shall enter the age, name, sex, and general description of the person of the negro or mulatto for whom he shall grant such certificate or warrant of removal, together with the evidence and the name of the places of residence of the witnesses, and the party claiming such negro or mulatto, and shall, within ten days thereafter, file a certified copy thereof in the office of the clerk of the court of general quarter sessions of the peace, or mayor's court of the city or county in which he may reside."

"Sec. XI. Nothing in this act contained shall be construed as a repeal or alteration of any part of an act of assembly passed the first day of March, 1780,

Page 41 U. S. 556

entitled 'an act for the gradual abolition of slavery,' except the eleventh section of said act, which is hereby repealed and supplied, nor of any part of an act of assembly passed on the 28th day of March 1788, entitled 'an act to explain and amend an act for the gradual abolition of slavery,' except the 7th section of this last-mentioned act, which is hereby supplied and repealed."

And the jurors further found that the negro woman, Margaret Morgan, in the within indictment mentioned, came into the State of Pennsylvania from the State of Maryland, some time in the year 1832; that, at that time, and for a long period before that time, she was a slave for life, held to labor, and owing service or labor, under and according to the laws of the said State of Maryland, one of the United States, to a certain Margaret Ashmore, a citizen of the State of Maryland, residing in Harford county; and that the said negro woman, Margaret Morgan, escaped and fled from the State of Maryland, without the knowledge and consent of the said Margaret Ashmore; that, in the month of February, 1837, the within-named defendant, Edward Prigg, was duly and legally constituted and appointed by the said Margaret Ashmore her agent or attorney to seize and arrest the said negro woman, Margaret Morgan, as a fugitive from labor, and to remove, take, and carry her from this State into the State of Maryland, and there deliver her to the said Margaret Ashmore; that, as such agent or attorney, the said Edward Prigg, afterwards and in the same month of February, 1837, before a certain Thomas Henderson, Esquire, then being a justice of the peace in and for the county of York in this State, made oath that the said negro woman Margaret Morgan had fled and escaped from the State of Maryland, owing service or labor for life, under the laws thereof to the said Margaret Ashmore; that the said Thomas Henderson, so being such justice of the peace as aforesaid, thereupon issued his warrant, directed to one William McCleary, then and there being a regularly appointed constable in and for York county, commanding him to take the said negro woman, Margaret Morgan, and her children, and bring them before the said Thomas Henderson, or some other justice of the peace for said county; that the said McCleary, in obedience

Page 41 U. S. 557

to said warrant, did accordingly take and apprehend the said negro woman, Margaret Morgan, and her children, in York county aforesaid, and did bring her and them before the said Thomas Henderson; that the said Henderson thereupon refused to take further cognizance of said case, and that the said Prigg afterwards, and without complying with the provisions of the said act of the General Assembly of the Commonwealth of Pennsylvania, passed the 25th of March 1826, entitled

"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 kidnapping,"

did take, remove and carry away the said negro woman, Margaret Morgan, and her children, mentioned in said warrant, out of this State, into the State of Maryland, and did there deliver the said woman and children into the custody and possession of the said Margaret Ashmore.

And further say, that one of the said children so taken, removed and carried away, was born in this State, more than one year after the said negro woman, Margaret Morgan, had fled and escaped from the State of Maryland as aforesaid.

But whether or not, upon the whole matter aforesaid, by the jurors aforesaid in form aforesaid found, the said Edward Prigg be guilty in manner and form as he stands indicted, the jurors aforesaid are altogether ignorant, and therefore, pray the advice of the court; and if, upon the whole matter aforesaid, it shall seem to the said court that the said Edward Prigg is guilty, then the jurors aforesaid, upon their oaths aforesaid, say that the said Edward Prigg is guilty in manner and form as he stands indicted.

But if, upon the whole matter aforesaid, it shall seem to the said court that the said Edward Prigg is not guilty, then the jurors aforesaid, upon their oaths aforesaid, say that the said Edward Prigg is not guilty in manner and form as he stands indicted.

This special verdict was, under an agreement between Messrs. Meredith and Nelson, counsel for Edward Prigg, and Mr. Johnson, Attorney-General of Pennsylvania, taken under the provision of an act of the Assembly of Pennsylvania passed 22d of May, 1839, and, by agreement, the court gave judgment

Page 41 U. S. 558

against Edward Prigg on the finding of the jury and the indictment.

The defendant prosecuted a writ of error to the Supreme Court of Pennsylvania, to May Term, 1840. On the 23d May, 1840, the following errors were assigned before the Court by Mr. Meredith and Mr. Nelson, who represented the State of Maryland, as well as the defendant.

The plaintiff in error suggests to the Supreme Court here that the judgment rendered in the Court of Oyer and Terminer of York county in this case should be reversed for the reason following, viz: That the Act of Assembly of the Commonwealth of Pennsylvania set out in the record in the said cause is repugnant to the provisions of the Constitution of the United States, and is therefore void.

The Supreme Court affirmed pro forma the judgment of the Court of Oyer and Terminer, and the defendant Edward Prigg prosecuted this writ of error.

Page 41 U. S. 608

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