Commentary

Marking a shameful anniversary & the U.S. Supreme Court’s racist failure | Michael Coard

180 years ago, the highest court in the land ordered a free Black woman and her children back into slavery

A view of the front portico of the United States Supreme Court building in Washington, DC.

By Michael Coard

On March 1, it will be exactly 180 years ago to the very day that the United States Supreme Court, in the notorious Prigg v. Pennsylvania case, ruled in 1842 that a Black woman named Margaret Morgan — who had been freed by her so-called master John Ashmore in Maryland and who had married a free Black man before moving to Pennsylvania in 1832 and starting a family with him and their six children — had to be returned, along with all her young children, to slavery in Maryland.

Five years before that ruling, a white attorney and professional “slave catcher” named Edward Prigg was hired in Maryland by Ashmore’s widow, who had falsely claimed Morgan’s freedom was fraudulent, to travel to the free state of Pennsylvania to retrieve her absconded “property.”

After he seized Morgan and her children on April 1, 1837, in York County and forcibly took them to Maryland, Pennsylvania authorities charged him with kidnapping and insisted upon his extradition, which Maryland authorities grudgingly approved following relentless and loud protests by Black and white abolitionists.

But Morgan and her children were forced to remain captive in Maryland because Pennsylvania didn’t request their release and Maryland refused to offer their release.

After Prigg was found guilty in 1839 of violating the due process requirements stemming from the purported anti-kidnapping clause of Pennsylvania’s 1780 Gradual Abolition Act, its 1788 amendment, and a separate but substantially similar (albeit slightly stronger) 1826 state law, he appealed to the U.S. Supreme Court.

That court reversed his conviction by declaring those Pennsylvania laws unconstitutional because they were contrary to federal law and federal law takes precedence over state law. Accordingly, the Fugitive Slave Act — officially captioned “An Act respecting fugitives from justice and persons escaping from the service of their masters” — remained the law of the land.

In 1850, Congress passed the controversial Fugitive Slave Law, which allowed slave-hunters to seize alleged fugitive slaves without due process of law and prohibited anyone from aiding escaped fugitives or obstructing their recovery (Library of Congress/The Philadelphia Tribune).

Although Pennsylvania seems kinda/sorta like the good guy here, it really wasn’t.

Both Pennsylvania and the federal government were despicably racist. The only difference between the two is that the federal government was worse.

Pennsylvania’s ostensible “anti-slavery” laws allowed for suspected Black escapees to be kidnapped but merely required the white kidnappers to bring those Blacks to a Pennsylvania court for a trial before being taken out of state. In other words, Pennsylvania didn’t stop Blacks from being kidnapped. It merely delayed them from being kidnapped.

I put the word “anti-slavery” in quotes because Pennsylvania didn’t actually ban the kidnapping of Blacks back into slavery in other states. It simply required racist kidnappers to go through a simple federal court procedure before doing so. And that federal court procedure involved magistrates who were legally and contractually paid more to enslave Blacks and less to release them.

As an aside, I must mention that the Fugitive Slave Act was signed into law right here in Philadelphia on February 12, 1793, by George Washington. The heartless cruelty of that act is in Section 3, which states:

That when a person held to labor in any of the United States, or in either of the Territories on the Northwest or South of the river Ohio, … shall escape into any other part of the said States or Territory, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, … and upon proof to the satisfaction of such … magistrate … that the person so seized or arrested doth, under the laws of the State or Territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such … magistrate to give a certificate thereof to such claimant … which shall be sufficient warrant for removing the said fugitive from labor to the State or Territory from which he or she fled.”

I should also mention that while Washington was in Philly engaging in liberty destruction in 1793 by signing the Fugitive Slave Act, enslaved Blacks were in D.C. engaging in patriotic construction in 1793 through 1800 by building the United States Capitol.

By the way, the same Supreme Court chief justice who issued this “re-enslave the free Black mother with her six children” Edward Prigg decision in 1842 is the same Supreme Court chief justice who issued the “Blacks have no rights that whites are bound to respect” Dred Scott decision in 1857. And that is none other than the virulently racist Roger B. Taney who held the top position in America’s top court for nearly 30 years from 1836 until his death in 1864.

Lawyer Robert Morris fought — sometimes physically — to free the enslaved | Michael Coard

Although I’ve been a trial lawyer for more than 25 years, I don’t love the law, never did. And that includes the law of the federal government, the 50 states, the five territories, and the District of Columbia because they all are racist, classist, sexist, outdated, arbitrary, selectively enforced, or all of the above.

Therefore, in the somewhat revised words of Mr. Bumble in Charles Dickens’ Oliver Twist, “If the law supposes that … (it is not … racist, classist, sexist, outdated, arbitrary, or selectively enforced, then) the law is an ass.”

Just ask Mrs. Morgan and her six children. But you can’t ask them together because those seven family members were auctioned off separately — never to see each other or their father/her husband again.

Also, just look at many of the Supreme Court decisions (as well as many of the state court decisions) throughout American history, including — but certainly not limited to — Prigg in 1842, Dred Scott in 1857, Slaughterhouse in 1873 that strengthened the Dred Scott ruling, Bakke in 1978 that outlawed effective affirmative action, and Shelby County in 2013 that gutted the Voting Rights Act.

An attorney and radio host, opinion contributor Michael Coard wrote this column for the Philadelphia Tribune, where it first appeared. His work appears weekly on the Capital-Star’s Commentary Page. 

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