soldier with rifle american civil warThe Sesquicentennial Edition

Nature Of The Union
Prigg v. Pennsylvania (1842) 41 U.S. 539

By: Joe Ryan


Prigg was convicted in the state court of Pennsylvania, affirmed on appeal to the State Supreme Court, of the felony of attempting to carry away from the State by violence a certain Negro woman. The Negro woman, Margaret Morgan was a slave for life, and held to service under the laws of Maryland, to a certain Margaret Ashmore, a citizen of Maryland. She had escaped and fled from Maryland to Pennsylvania, in 1832. Prigg, the agent of Ashmore, in 1837, caused Morgan to be taken from Pennsylvania back to Maryland and returned to Ashmore. Prigg appeals his conviction under Pennsylvania law to the United States Supreme Court.

Issue to be Decided

Is the statute of Pennsylvania constitutional




Judgment reversed


Mr. Justice Story delivered the opinion o f the Court.

The provision of the Constitution at issue is, "No person held to service in one State under the law thereof, escaping into another, shall in consequence of any law therein, be discharged from such service; but shall be delivered up, on claim of the party in whom such service may be due." It is well known that the object of this clause was to secure to the citizens I of the slave states the complete title of ownership in their slaves as property, in every state in the Union into which they might escape. The full recognition of this title was indispensible to the security of this species of property; and indeed was so vital to the preservation of the domestic interests of the slave states, that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed.


The clause's true design was to guard against the doctrines prevalent in the free states, by preventing them from 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 found within its territorial dominions, when it is in opposition to its own policy and insitutions. If the nation does recognize the state of slavery as to such persons, it is as a matter of comity, and not as a matter of intenational right.

The state of slavery is deemed to be a mere municipal regulation, founded upon and limited in range of the territoral laws. It is manifest that if the Constitution did not have this clause, every free state in the Union would be at liberty to have declared free runaway slaves coming within its limits. The clause, therefore, was of the last importance to the slave states and adopted into the Constitution by the unanamious consent of the framers to it; a proof at once of its intrinsic and practical necessity.

The clause manifestly contemplates the existence of a positive, unqualified right on the part of the slave owner, which no state law or regulation can in any way qualify, regulate, control, or restrain. The owner therefore must have the right to seize and repossess the slave, which the local laws of his own state confer upon him as property. Upon this ground we have not the slightest hesitation in holding that, under the Constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace, or any illegal violence. In this sense, and to this extent, this clause of the Constitution may properly be said to execute itself; and to require no aid from legislation, state or national.

If the clause had stopped at the mere recognition of the right, without providing any means by which the right might be enforced, it is plain that the right would be a delusive and empty annunciation. This leads to the consideration of the part of the clause which implies at once a guaranty and duty. It says, "But the slave shall be delivered up on claim of the party to whom such service may be due." This reference to "claim" necessarily involves the procedure of the State courts, and thus implies the requirement that the states aid, by means of legislation, the enforcement of the right. Naturally, then, the Federal Government is clothed with the authority to and functions to enforce it.

The clause does not require state action, it imposes no obligation on the state to provide means to enforce the slave owner's claim.  As early as 1791, the Congress recognized this and passed legislation providing for the claim to be made in the Federal District Court where the slave resided and was found and seized. We hold the congressional act providing for the claim to be processed in the federal courts is constitutional.

Under the Constitution the right to recover one's slave is 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. It is a new and positive right, independent of comity, confined to no territorial limits, and bounded by no state institutions or policy.  The natural deduction from this is that the matter of enforcement belongs to the legislative department of the national government, to which it owes its origin and establishment. It would be a strange anamaly to suppose that the national government mean to rely for the fulfillment of its own proper duties and the rights which it intended to secure, upon state legislation; and not upon that of the Union.

To guard against any possible misconstruction of our views, however, it is proper to state that we are by no means to be understood in any manner whatsoever to doubt or interfere with the police power belonging to the states in virtue of their general sovereignty. The police power extends over all subjects within the territorial limits of the states; and has never been conceded to the United States. The police power is designed for the protection, safety and peace of the state, and may be used to arrest and restrain runaway slaves. But such use of the power can not be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the Constitution of the United States.

Mr. Justice Wayne concurs:

All the justices agree that the provision of the Constitution at issue was a compromise between the slave and free states, to secure to the former fugitive slaves as property.

Let it be remembered that the men who formed the Constitution were the representatives of equal sovereignties. That they were assembled to form a more perfect union than then existed between the states under the confederacy. That they cooperated to the same end; but that they were divided into two parties, having antagonistic interests in respect to slavery.


One of these parties, consisting of several 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. The representatives from the free states assented to the condition. The provision was proposed and adopted by the unanimous vote of the convention. It, with an allowance of a certain portion of slaves with the whites, for representative population in Congress, and the importation of slaves from abroad were the great obstacles in the way of forming a constitution. Without all of these provisions being provided for, it was well understood that the convention would have been dissolved, without a constitution being formed.

The agreement concerning these provisions was called, in the convention, a compromise. The provision in respect to fugitive slaves was called a guarantee of a right of property in fugitive slaves. It was adopted by all the states, not as merely a guarantee, but a great national engagement, in which the states surrendered a sovereign right, making it part of the instrument, which was intended to make them one nation, within the sphere of the Constitution's action.

It is reasonable to infer, as the states were forming a government for themselves, to the extent of the powers conceded in the Constitution, that the framers mean that the right be carried into execution by the that department in which they were all represented, the Congress of the United States.

Among nations there is a rule of interpretation that relies on the discretion of the parties to the obligation, a rule applied to conventions between nations, in order that justice be done. All civilized nations have consented to be bound by this rule; and it is a part of the laws of nations. One of these rules is the maxim that neither one or the other of the contracting powers has a right to interpret his act at his pleasure. Such is the rule with respect to the conventions of nations foreign to each other. It applies with equal necessity and force to states united in one general government. Especially to states making a provision in respect to property peculiar to some of them, that the right becomes so interwoven with their institutions and their representation in the general government of all of them, that the right must be protected in order to preserve their separate existence, and to keep up their constitutional representation in Congress.b

This provision is the only one in the Constitution in which a security for a particular kind of property is provided; provided too, expressly against the interference by the states in their sovereign character.

The framers were engaged in forming a government for all the states; by concessions of sovereign rights from all, without impairing the actual sovereignty of any one, except within the sphere of what was conceded. The free states were bound, when forming a general government with the other states, under which there was to be a community of rights and privileges for all citizens in the several states, to protect that property of their citiznes which was essential to the preservation of their state constitutions. If this had not been done, all of the property of the citizens would have been protected in every state, except that which was the most valuable in some of them. In such a case, the states would have become members of the Union on unequal terms. For these reasons, the states cannot legislate on the issue of the claim made by the owner of a slave that he is a fugitive; it is for Congress alone to legislate.

Chief Justice Roger Taney dissents, Justices Thompson, Daniel and McLean join him in part.

I concur in the opinion pronounced by the Court that the law of Pennsylvania, under which Prig was indicted, is unconstitutional and void. But I do not assent to all the principles contained in the opinion. I think the free states may assist the slave owner in the recovery of his slave by appropriate legislation.

Justice McLean writes:


Opinions so conflicting, and which so deeply pervaded the elements of society, could be brought to a reconciled action only by an exercise of exalted patriotism. Fortunately for the country, this patriotism was not wanting in the convention and in the states. The danger of discord and ruin was seen, and felt, and acknowledged; and this led to the formation of the confederacy. The Constitution, as it is, cannot be said to have imbodied in all its parts, the peculiar views of any great section of the Union; but it was adopted by a wise and far-reaching conviction that it was the best which, under the circumstances, could be devised; and that its imperfections would be lost sight of, if not forgotten, in the national prosperity and glory which it would secure. (Justice McLean must be saying this with his tongue in his cheek.)


Edited for brevity, Joe Ryan