Fugitive Slave Clause

No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.

I read one of those case book series volumes covering Prigg v. Pennsylvania (subtitle: "Slavery, the Supreme Court, and the Ambivalent Constitution"). It fit within the middle range, worthy to cover the material and get a thumbnail sketch of the wider picture and specific details. Thus, e.g., we learn that the case is ultimately about Margaret Morgan, a woman who much of her life was not treated as a slave.  "Prigg" was one of the people sent to seize her and found by Pennsylvania guilty of kidnapping for not following the process in place.  This, apologies, colors the result.

The problem arose after her owner (if he was one by this point -- the facts are a bit hazy) died and his heir wanted control of said "property."  By this point, she moved from Maryland (she was not some typical "fugitive") with her free black husband (who lived with her in Maryland until her parents died) to Pennsylvania.  One of her children at least was born there and under state law was free.  The unnamed child was seized with their mother.  After their slave status was confirmed, they all were lost to history, apparently she was sold South.  Her free husband went personally to the governor to get relief but on the way back lost his coat.  He was seized as a possible fugitive, his papers in the coat, and while bound, drowned trying to escape. 

The two states had a dispute on their hands, Pennsylvania among others having laws on the books that showed some recognition "persons" were involved here, including free persons who could be citizens of their state. The whole black U.S. citizenship part is complicated, less so state citizenship; but free blacks at least where "persons," not nonpersons having no part in the Constitution.  Since only "persons," including those who were slaves were mentioned, I resist the argument even they were not part of the community in that sense.  But, free blacks surely were. Anyway, a sort of test case was set up, and that free child was included in the list of facts. (It was assumed she was a slave.) It was there. If any of the justices cared to note it.

The Fugitive Slave Clause is the most blatant slavery friendly clause, the international slave trade measure limited in scope and time.  Note, though few were around, the clause applies to indentured servants.  I gather too that it covered people in service on ships, something that came up after slavery was gone (see Robertson v. Baldwin.)  It also reaffirmed something that was common practice and found in the Northwest Ordinance too.  On some level, the inability of Massachusetts to determine a fugitive slave would be free once it steps on their soil was not shocking.

That was not something even Massachusetts was doing at the time. The real question is what sort of duty did states have here, including to help capture. What does "delivered up on claim" mean exactly?  For instance, did they have an obligation to provide arrest warrants (e.g., a slave in someone's house could not simply be seized, it being a trespass to go into someone's home without authority)? A logical rule for me would be to set up a process, akin to obtaining an arrest warrant, where you provide evidence to a magistrate (the "claim") and upon proof, the person in question can be taken.  The putative fugitive might be held in custody while this occurred. Balances rights as far as possible.

The conclusion in Prigg that the clause justifies merely seizing someone, unless you breached the peace, seems unfounded. What of the rights of persons?  As discussed in the book, it is not clear from the text, including given other things in Art. IV provides Congress explicit power, that the federal government had the duty to pass a law to carry out this provision.  It would logically be left to the states to do so.  But, if the federal government did so -- Fugitive Slave Act of 1793 -- they are bound by the Bill of Rights. Free blacks are "persons."  Some due process is justified.

The dissent by Justice McLean noted:

The slave, as a sensible and human being, is subject to the local authority into whatsoever jurisdiction he may go. He is answerable under the laws for his acts, and he may claim their protection.

Likewise, free states had the power to assume freedom. To the extent the state rules to determine fugitives clashed with federal law, they were pre-empted. Now, I would then go to the next level and say that the state law here was more loyal to the rights of persons.  Regardless, McLean provided a useful middle path: even if the state law interfered with federal law, it is proper to have one rule for the nation, the slave catchers shouldn't have just taken the mother and her kids (even he doesn't appear to talk about them) out of the state. The federal law provided for a hearing in front of a federal official, who were available in that state. 

The process very well (though it provided minimum protections) been to summary, but it provided something to stop illegitimate kidnapping.  It is wrong to throw up your hands here and note that the Constitution protected slavery.  It did but exactly how it went about it is unclear and there ways present to temper the wrong in the process. People were wrongly kidnapped. It was right to have some protections in place here.  The federal law very well might have put the ceiling [be it too low] though that wasn't necessarily the only way to apply it (maybe if you used state courts to claim your fugitives, a stricter rule might be valid, another federal route still open for you). 

Just merely letting people be seized is a bridge too far. And, finally, as "persons" (it is right there in the clause), due process rights are present. The Fourth Amendment does speak of "the people," but before proof, it isn't known if the person is a slave. And, regardless, the Fifth Amendment covers "persons" too.  The state of Pennsylvania did not have to leave that up to the slave state, especially involving that child.  Taking everything as a whole, a fugitive is not discharged of their duty, but said status is not left to the say-so of the putative owner.  Finally, "claim" fits with some sort of legal process, taking it all in.

The pro-slavery racist result here is telling.