The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Friday, August 19, 2005

Slavery cases - again

A skim of the Weinberg article (yesterday) suggests it throws an interesting light on antebellum history.

A facile assumption of a heroic Northern judiciary and a cruel Southern one is not borne out.

Thus, for instance, it seems (p9) that Chief Justice Shaw of that free-soil and (to an extent) abolitionist stronghold, Massachusetts, favoured the return of fugitive slaves (as distinct from slaves brought into the Bay State by their masters).

And, up till things got hot in the 1850s, in the South as well as the North, the judiciary was wont [1] to find technical means and evasions to find in favour of a slave's freedom (p12).

Even in the 1850s, it seems that Southern judges were slow to get steamed up by the fire-eaters: only in 1859, for Heaven's sake, does Mississippi decide in Mitchell v Wells to treat as null a manumission made in Ohio (p25). Georgia had preceded the Magnolia State in 1855. The Dred Scott case spanned the hardening of attitudes.

In the North, Shaw was the first judge (p33n) to find the Fugitive Slave Act of 1850 constitutional (in Sim's Case in 1851, based on Prigg, which had found the 1793 Act constitutional) [2].

But many of the most inflammatory cases involved self-help by slave-catchers, as most unfortunately authorised by the Prigg ruling. Northern mobs felt equally authorised to engage in self-help of their own!

The Wisconsin Supreme Court lent a hand in the case that became Ableman v Booth [3] - Chief Justice Taney's ruling in that case is still good law, apparently (p38).

(Weinberg (p39) indulges her druthers in wondering whether SCOTUS could have ruled that slavery was unconstitutional. This, I suspect, suffers from the endemic disease of historical counterfactuals: no one ever thought it possible at the time.)

She suggests (p40), I think rightly, that nothing the North could have done in tightening enforcement of the fugitive slave laws could have mollified the South. That doesn't mean that the Northern courts could have simply nullified the 1850 Act [4]. If Northern mobs evaded the Act by interposing a little force majeure, that was hardly the judges' fault!

As I've said before, the fugitive slave laws were a wedge issue for Southern hard-liners, a means of poking the North in the eye under constitutional pretext, the better to stiffen Southerners' resistance and increase Southern demands. (The other questions raised in the debates over the Wilmot Proviso, the 1850 Compromise and Kansas-Nebraska were essentially remote from the bulk of the free state population. A single slave-catcher on free soil was a question of turf.)

  1. The assertion is not backed up by quantatitive evidence. Perhaps hers is a contrarian reading based on a handful of outliers. I've no idea.

    Also, the cases she cites seem confined to manumission and (p15n) domicile in free states (as distinct from mere temporary residence). No suggestion, that I can see, of any case in which a Southern court was prepared to give leeway to a fugitive slave.

    The original Missouri trial court decision in Dred Scott was an example of a slave state court finding in favour of a slave's freedom on the basis of domicile on free soil (p22).

  2. Weinberg calls Shaw
    probably the most prestigious state judge of the nineteenth century
  3. Not on Findlaw, which has complete SCOTUS cases only from 1890. It is on the free service on Lexis, which has all SCOTUS cases (and registration - ugh!).

  4. Perhaps in the thicket of notes, there are details of cases in which Northern judges applied to the Act of 1850 the same sort of creativity as they had done in relation to manumissions.

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