Joseph Story was a judicial nationalist. He aimed to strengthen the hand of the federal government at the expense of the states. “If one part of the country may disregard one part of the Constitution,” he argued, “another section may refuse to obey that part which seems to bear hard upon its interests, and thus Union will become a mere ‘rope of sand,’ and the Constitution (worse than a dead letter), an apple of discord in our midst, a fruitful source of reproach, bitterness, and hatred, and, in the end, discord and civil war…”
So, when he penned the majority opinion in the 1842 Supreme Court Prigg v. Pennsylvania case, he was delivering a credo on the importance of the Constitution and federal supremacy. The problem: he was also delivering a woman and her children into slavery.
Margaret Morgan, the woman in question, was born to parents who were born into slavery. But their “owner,” John Ashmore, had allowed Margaret’s parents to live in freedom in Maryland and made no claim to ownership over them. Since they were technically “slaves,” and since Margaret was born to them in the slave state of Maryland, she was also, technically, a “slave.” She married a free black man from Pennsylvania, Jerry Morgan, and, after her parents died, moved with him to Pennsylvania in 1832, presumably with the consent of Ashmore’s widow.
Five years later, in 1837, Ashmore’s son-in-law, Nathan Bemis, decided to claim Margaret and her children. He took with him three of his neighbors, one of which was Edward Prigg, to capture Margaret and her children and bring them to Maryland and into slavery. The four men initially worked within Pennsylvania’s law, and in concordance with the 1793 Fugitive Slave Law. But Justice of the Peace Henderson, upon hearing the complete story, determined that Morgan and her children should not be taken to Maryland. Bemis, Prigg, and the others ignored Henderson and took them anyway.
This started a constitutional debate with Margaret and her children in the middle. Did Henderson, through Pennsylvania law, actually undermine the supremacy of the 1793 fugitive slave act? If this case were allowed to stand would it cause massive state-by-state disagreement that would nullify a unified national constitutional framework?
He, in concurrence with four other justices (only 1 dissented), argued that the U.S. Constitution guaranteed the right of, in this case, a Maryland citizen to go into Pennsylvania and capture their “property.” In Story’s argument, this provided for uniformity of law throughout the nation that would not be diluted by conflicting state laws. His decision was confusing, and has created fertile battlefield upon which scholars debate.
Paul Finkelman’s article in 1994 laid out his argument that Story’s decision was “a triumph of slavery, and [Story] knew so. He also wanted to insure that his handiwork would be implemented.” He asks why Story would do this, when he “found slavery abhorrent.” His answer: “the justice believed that the Constitution required him to protest the right of masters to recover fugitive slaves.” In essence, Story was more “nationalist” than anti-slavery and was willing to sacrifice a slave like Margaret for the larger goal of strong federalist oversight.
In 2011, Leslie Goldstein provided a counterpoint to Finkelman. Using Story’s previous rulings on cases involving westward expansion and Native American relocation, she found that he was working within the constitution, but in a way that threw blows to slavery. Consequently, his verdict was a “half slave and half free” compromise. While the ruling “firmed up the hold of slaveholders over their slaves,” it also “allow[ed] Northern sheriffs and court personnel to stop cooperating in sending slaves back to their owners.” Goldstein concluded, Story “was willing to swallow this bitter medicine in order to hold together the Union with the goal of eventually ending slavery, which goal would become impossible with sectional secession.”
Despite the differing opinions on Story’s ruling, Prigg led to many Northern states removing any enforcement mechanisms in helping Southerners reclaim escaped slaves. Within eight years, these actions were overturned with the passage of the Fugitive Slave Act in 1850 (something Hayes seemed to support – we will get into this later). At the time, Hayes was still a student of Story, and dutifully wrote down in his journal the way Story discussed Prigg with his Harvard learners. “[Civil War] must inevitably follow the first success of those mad men [abolitionists] who even now are ready to stand up in public assemblies and in the name of conscience, liberty, or the rights of man,” Story argued, “to boast that they are willing and ready to bid farewell to that Constitution under which we have lived and prospered for more than half a century.” The consti
tution, Story continued, “was the result of compromise and a spirit of concession and forbearance, and will end when that spirit dies from the hearts of this people. Let no man think to excuse himself from any duty which it enjoins.”
Hayes felt such a lecture was the “most eloquent” he had “ever heard.” He agreed with Story that it was “the duty of American citizens to adhere honestly and implicitly to the Constitution." And was happy with Story that his disdain, "was particularly directed to the Abolitionists.” Image: A young Rutherford B. Hayes
Whether Story had a grievance with abolitionists, or simply wanted to show how his vision for ending slavery was superior within the confines of law, Hayes was happy to embrace Story’s anti-abolitionist wording. Projecting ahead in Hayes’s career, this moment foreshadows Hayes’s predilection to favor constitutional adherence and lament the need for enforcement mechanisms at the expense of quick action on civil rights. This is quite evident when reading his journal. Expounding on the ideals of Dr. James Walker, Unitarian Minister and Harvard Professor, Hayes wrote, “Evils are to be removed as He [Christ] would have removed them; not by fanaticism, not by violence and bloodshed, but quietly, persuasively, with passionless serenity.”
As for Hayes’s future views on Story, he dropped all but one of Story’s studies in exchange for Simon Greenleaf. He wrote, “Great as [Story] is on the bench; he [is] not so profitable an instructor by a many degrees as Proff. Greenleaf. He is too prolix – too garrulous – too loose – to be close and accurate.”