The Supreme Court’s Worst Pre-Civil War Decision (No, Not That One)

The Supreme Court’s 1857 Dred Scott decision[1] commonly is cited as its worst decision, on moral, legal and political grounds.[2] Based upon a dubious recitation of history and questionable legal analysis, the Court ruled that African Americans could not be citizens, and that Congress had no authority to exclude slavery from federal territories. Rather than settling the divisive slavery question, the decision sparked outrage in much of the North, and resultant anger in the slave-holding states, who insisted that the decision must be honored.[3]

Yet in terms of steering the nation towards civil war, an earlier decision of the Court arguably had a more significant and malignant impact. That case, Prigg v. Pennsylvania, [4] deserves the title “worst Supreme Court decision” as much, if not more, than Dred Scott.

The Background of the Case

Margaret was a Maryland woman born of slaves. In 1832 Margaret, apparently with her owner’s consent, moved to Pennsylvania with her husband, a free black man. There they had children and lived as free persons.[5] In 1837, Edward Prigg, an attorney retained by Margaret’s then owner, had her entire family arrested, literally dragged from their beds in the middle of the night. But a Pennsylvania state judge refused to issue a certificate of removal to Maryland because Prigg had not complied with Pennsylvania’s personal liberty law,[6] which required proof of an alleged fugitive’s status that could not include evidence from the supposed owner or any other “interested” party.[7]

Prigg was not deterred by such legal niceties. Instead, he forced Margaret and her children inside a carriage and into Maryland. There they were quickly sold further South.[8]

Pennsylvania sought to bring a kidnapper to justice. Prigg was indicted for violation of Pennsylvania’s personal liberty law. Maryland initially refused Pennsylvania’s extradition request, but the two states then agreed that Prigg would submit to trial but remain free while the parties appealed to the Supreme Court. The case would test the Constitutionality of the Pennsylvania law, as well as the 1793 Fugitive Slave Act, a law enacted pursuant to the Constitution’s Fugitive Slave Clause, and which provided little due process to accused fugitive slaves.[9] The result was Prigg v. Pennsylvania.

The Prigg Decision

The stakes of the case were high, and not just for Prigg. Pennsylvania’s lawyers argued that a state must be allowed to protect its residents. Prigg’s lawyer argued that his client could not be punished because the 1793 federal law divested states of any power to hinder slavecatchers.[10]

The Supreme Court ruled in favor of the slavecatchers. Justice Joseph Story’s opinion held that states could not mandate procedural protections for an accused fugitive slave that conflicted with the procedures set forth in the 1793 law, even to prevent free people from being dragged South. But the Court went further. It held that states could not legislate on the topic of fugitive slaves at all; that power was strictly reserved to the federal government. Effectively, all Northern personal liberty laws were struck down in one fell swoop.

The Court did throw one sop to the free states, declaring that neither the Constitution nor the 1793 Act forced states affirmatively to assist slavers.

The Divisive Impact of Prigg

While not as well-known as Dred Scott, Prigg was arguably more consequential because it blocked the road towards potential compromise on the increasingly divisive fugitive slave issue.

The slaveholding South needed—demanded—Northern state cooperation in the rendition of fugitive slaves. By contrast, the North wanted to protect its citizens, including free blacks. But this did not mean that Northern states were hotbeds of abolition, either. Indeed, only months after Margaret’s kidnapping, a Philadelphia mob burned Pennsylvania Hall, built by abolitionists for their meetings. That same year (1838), Pennsylvania ratified a new state Constitution disenfranchising blacks.[11] In Ohio, in the same year Prigg was decided, a jury imposed a substantial damages award against John Van Zandt—a “conductor” on the Underground Railroad—for violating the 1793 Act. Moreover, Van Zandt’s church excommunicated him, because aiding fugitive slaves was “immoral and un-Christian conduct.”[12] Even in Massachusetts, that presumed haven of abolitionism, the state Supreme Court in 1849 upheld segregated public schools.[13] Friends of African Americans remained a distinct minority in the North. As shown below, this reality offered space for potential South-North political compromise on the issue of fugitive slaves, but for Prigg.

Prigg did not need to be decided as it was. The Court could have crafted an opinion striking down only the part of the Pennsylvania law that unduly burdened the right of the slaveholder to reclaim a fugitive, while simultaneously allowing a state to provide some protection for alleged fugitive slaves. For example, the Court might simply have ruled that, contrary to the Pennsylvania statute, proof of an alleged fugitive’s status could include evidence from the supposed owner. The text of the 1793 Act supported that result. But that law also required “proof to the satisfaction of such Judge or magistrate …  that the person so seized or arrested,” was in fact a fugitive slave owned by the claimant.[14] That provision allowed states to define what proof was “satisfactory.” For example, if a slaveholder provided only a cursory description of the fugitive’s physical features, that evidence could be rejected by a state judge without running afoul of federal law. Moreover, the 1793 Act did not expressly bar an alleged fugitive from offering defense evidence. Thus, evidence from the accused’s neighbors and friends in support of his claim to be a freeperson could result in rejection of the slaver’s offered evidence as unsatisfactory to the judge.

By incorporating within state law the cursory federal procedures but allowing state tinkering on the “proof satisfactory” issue, the Court could have left in place state-based recovery remedies for slaveholders. Slaveholders would not have liked the possible added cost necessary to establish their claims, but they still would have a rendition system backed by the power of states’ judicial processes. Simultaneously, Northern concerns about providing at least a modicum of due process to an accused fugitive would be addressed, with the Southern-tilting Supreme Court hovering above to ensure that any pro-freedom legislative efforts were not too vigorous. Again, it could hardly be said that the Northern populace loved African Americans, but there clearly was some level of concern to ensure justice before a black state resident was forced into slavery. But by removing entirely any state ability to legislate regarding fugitive slaves, the Court aborted this potential resolution of a most divisive issue. Instead, Prigg relegated Southern slaveholders exclusively to the 1793 Act.

The problem was that in elevating the 1793 Act to supreme and exclusive importance, the Court rendered that law a dead letter in any practical sense. There simply were too few federal judges available to enforce the Act. Pennsylvania’s Attorney General, when arguing Prigg, had pointed this out: “In a large state like Pennsylvania, with but two [federal] district judges residing three hundred miles apart, how is the difficulty of obtaining certificates of removal for fugitive slaves to be obviated?”[15] Chief Justice Roger Taney, in his dissenting opinion in Prigg, agreed, observing how “… ineffectual and delusive is the remedy provided by Congress, if state authority is forbidden to come to its aid.”[16]

Rather than resolving the fugitive slave issue by removing state interreference with the rendition of the enslaved, the Supreme Court instead had taken a step towards stoking North-South conflict.

Barred by Prigg from legislating any softening compromises on the fugitive slave issue but assured by the Court that they were not required to aid slavecatchers, most Northern states responded by focusing on the offered loophole. Prevented from employing a political scalpel, Northern states used a meat cleaver—they withdrew all cooperation from slaveholders. Free states forbade their judges and other officials from assisting in the capture of fugitives. They barred their jail facilities from being used to secure fugitives until their removal South. At a time of a tiny federal presence nation-wide, the absence of state logistical support made fugitive slave recovery immeasurably more difficult.[17]

Southerners were predictably outraged. South Carolina’s John C. Calhoun denounced Northern “evasion” of their Constitutional duty to return fugitives as “one of the most fatal blows ever received by the South and the Union.”[18] Blocked by the Supreme Court from working with Northern states to craft mutually acceptable slave rendition laws, and left with a crippled 1793 Act, Southerners turned to Congress for relief. They sought a truly powerful fugitive slave law, one that would force Northern compliance. Their effort, while initially successful when the Fugitive Slave Act of 1850 was enacted, would spark such extreme Northern outrage, and violent resistance, that it would help sow the seeds of civil war.[19] And for that outcome, the Supreme Court and its Prigg decision bears much of the blame.

A version of this post originally appeared as part of ‘The “Butterfly Effect”: How the Eighteenth-Century Kidnapping of A Free Black Man Led to the 1850 Fugitive Slave Act & the Civil War,’ North & South, Series II, Vol. 4, No. 1 (Dec. 2023).

[1] Scott v. Sandford, 60 U.S. 393 (1857).

[2] Charles Evans Hughes, The Supreme Court of the United States: Its Foundation, Methods and Achievements, an Interpretation (Columbia University Press, New York, NY, 1928), p. 50 (referring to the case as one of the Court’s “self-inflicted wounds”),  https://archive.org/details/supremecourtofun0000hugh/page/n5/mode/2up; “The Dred Scott Decision: Slavery And The U.S. Supreme Court,” Constitutional Law Reporter, Donald Scarinci, Editor, https://constitutionallawreporter.com/2015/07/07/the-dred-scott-decision/.

[3] Paul Finkelman, Dred Scott v. Sandford: A Brief History With Documents (Bedford/St. Martin’s, Boston, MA, 2017), describes both the case and public controversy following. See also Allen Carden, Freedom’s Delay: America’s Struggle for Emancipation (The University of Tennessee Press, Knoxville, TN, 2014), pp. 205, 218, 241 – 242.

[4] Prigg v. Pennsylvania, 41 U.S. 539 (1842).

[5] Margaret’s putative owner, John Ashmore, had informally (i.e., without benefit of manumission papers) freed Margaret’s parents. But when Ashmore died in 1836 his heir sought to retrieve her inherited property, perhaps to help clear estate debts. Paul Finkelman, Sorting Out Prigg v. Pennsylvania, 24 Rutgers L.J., 605, 609 – 611 (1992-1993), https://msa.maryland.gov/megafile/msa/speccol/sc5400/sc5496/051200/051268/images/finkelman_rutgers.pdf; Fugitive Justice, p. 30.

[6] Northern “personal liberty” laws provided due process protections to blacks accused of being slaves. Freedom’s Delay, p. 118.

[7] Steven Lubet, Fugitive Justice: Runaways, Rescuers, and Slavery on Trial, p. 30 (The Belknap Press of Harvard University Press, Cambridge, MA 2010); Pennsylvania Personal Liberty Law (1826), Section 6, https://blogs.dickinson.edu/hist-288pinsker/pennsylvania-personal-liberty-law-1826/#:~:text=An%20act%20to%20give%20effect,of%20color%2C%20and%20prevent%20kidnapping.  This evidentiary prohibition was not unusual; for centuries, courts barred parties to a case from testifying, on the theory that their obvious “self-interest” heightened the risk of perjury. John H. Langbein, Historical Foundations of The Law of Evidence: A View From The Ryder Sources, 96 Colum. L. Rev. 1168, 1184 (1996); Fugitive Justice, pp. 42 – 43.

[8] Archives of Maryland (Biographical Series), Margaret Morgan, https://msa.maryland.gov/megafile/msa/speccol/sc5400/sc5496/008700/008784/html/08784bio.html; Sorting Out Prigg, p. 612 & n. 28.

[9] Sorting Out Prigg, p. 612. For the events that led to this first federal Fugitive Slave Act, see Paul Finkelman, “The Kidnapping of John Davis and the Adoption of the Fugitive Slave Law of 1793,” The Journal of Southern History, vol. 56, no. 3, 1990, pp. 397 – 422, www.jstor.org/stable/2210284.

[10] The arguments of counsel appear with the Prigg opinion at https://casetext.com/case/prigg-v-the-commonwealth-of-pennsylvania/?PHONE_NUMBER_GROUP=P.

[11] Ira V. Brown, “Racism and Sexism: The Case of Pennsylvania Hall,” Phylon, Vol. 37, No. 2 (Clark Atlanta University, Atlanta, GA, 1976), pp. 126 – 136; History of Pennsylvania Hall, Which Was Destroyed by a Mob, on the 17th of May, 1838 (Merrihew and Gunn, Philadelphia, PA, 1838) (authorship attributed to Samuel Webb), https://catalog.hathitrust.org/Record/008585410; Freedom’s Delay, p. 101 (quoting Alexis de Tocqueville; “The prejudice of race appears to be stronger in the states that have abolished slavery than in those where it still exists…”).

[12] Fugitive Justice, pp. 27 – 29; Marion Gleason McDougall, Fugitive Slaves [1619-1865] (Bergman Publishers, New York, NY, 1969), p. 42; Ohio History Central, https://ohiohistorycentral.org/w/John_Van_Zandt; “Ex-Communication Reversed,” http://acfnewsource.org.s60463.gridserver.com/religion/excommunication.html.

[13] Charles R. Bloch, States Rights – The Law of the Land (The Harrison Company, Atlanta, GA, 1958), pp. 43 – 44.

[14] The text of the 1793 Act can be found at https://www.ushistory.org/presidentshouse/history/slaveact1793.php#google_vignette (emphasis supplied).

[15] Prigg, 41 U.S. at 598.

[16] Prigg, 41 U.S. at 614.

[17] Fugitive Justice, pp. 32, 34; James Oliver Horton & Lois E. Horton, “A Federal Assault: African Americans and the Impact of the Fugitive Slave Law of 1850,” in Paul Finkelman, Ed., Slavery & The Law (Rowman & Littlefield Lanham, MD, 2002), p. 148.

[18] Fugitive Justice, pp. 32, 34; ‘Calhoun’s Plea, 1849, for A United South Against “Northern Acts of Aggression,”’ Negro History Bulletin, Vol. 14, No. 1 (Oct., 1950), p. 3,   https://www.jstor.org/stable/44212388?read-now=1&refreqid=excelsior%3Aa6a60b5275bebd2ef93834f91a468819&seq=2.

[19] Kevin Donovan, ‘The “Butterfly Effect”: How the Eighteenth-Century Kidnapping of A Free Black Man Led to the 1850 Fugitive Slave Act & the Civil War,’ North & South, Series II, Vol. 4, No. 1 (Dec. 2023), pp. 41 – 46.