By Earl M. Maltz, University Press of Kansas, Lawrence, Kan. 362 pages, $40
The shame of two centuries of human bondage still troubles the American conscience. In “Slavery and the Supreme Court, 1825-1861,” Professor Earl M. Maltz of Rutgers University-Camden shows how our highest court handled slavery as a reality, not the remembered nightmare that we know. He does a good job with a work perhaps more likely to appeal to the legal scholar than to the casual, fireside reader.
How easy we of the 21st century find it to condemn judges and lawyers of times gone by who did not recoil in horror at the barbarity of one human being owning another. Yet the Constitution as adopted in 1787 recognized slavery, called for its enforcement and permitted the importation of slaves for 20 years to come. Of the 12 states whose delegates signed the original instrument, well over half, including New York, permitted slavery at the time. Have we the right to pass judgment on those who, whatever they thought of slavery, saw the “peculiar institution” as part of the law they were sworn to uphold?
The book’s scope exceeds in breadth what its title denotes. True, it reviews and analyzes, with scholarly excellence, Supreme Court decisions on slavery. It also, however, provides a study of the political and legislative history of slavery during the antebellum decades. The author acknowledges in his conclusion that “the Court was only a junior partner in the struggle to resolve” the conflict over slavery.
Thus in his chapter on the annexation of Texas and the incorporation into the Union of Oregon and the areas seized as a result of the Mexican War, Maltz does not once mention the Supreme Court. The subject has relevance, of course, as affecting the relative congressional strength of slave and free states.
Much of the slavery litigation that reached the Supreme Court involved the final clause of Article IV, Section 2, of the Constitution. It required, by circumlocution, that a slave escaping from one state to another “be delivered up on Claim of” the owner. The broad wording of the clause raised questions. Was it self-executing or did the clause implicitly authorize Congress to enact enabling legislation? Did it require officials of the sanctuary state to help in the pursuit, capture and return of a fugitive slave? And so forth.
For the years the author calls “The Age of Accommodation,” the Court tried to reconcile the property rights of slaveholders with the reluctance of northern states to aid in the return to bondage of runaways. In Prigg v. Pennsylvania (1842), for example, a divided Court held unconstitutional a Pennsylvania anti-kidnapping statute plainly designed to hamper the recapture of escaped slaves. The opinion, however, went out of its way to concede the right of a free state to exclude slavery from its borders.
A lot of good it did. As time went by, political developments, including Congress’ enactment of a new, tougher Fugitive Slave Act as part of the Compromise of 1850, contributed steadily to the exacerbation of sectional tension, on the Court as elsewhere.
The issue came to a head in Dred Scott v. Sandford (1857), to which the author devotes four chapters. The Court, divided seven to two, held, in language far from conciliatory, that staying, even as a non-fugitive, in a state that forbade slavery left a slave still a chattel. Declaring the Missouri Compromise unconstitutional, the Court’s opinion, delivered by Chief Justice Roger Taney, furthermore threatened to facilitate the expansion of slavery into the territories.
Dred Scott, which included a defiant dissent by Justice Benjamin Curtis, predictably enflamed northern opinion. The decision played a part in the Lincoln-Douglas debates of l858 and the 1860 presidential election. In Kentucky v. Dennison (1861), the Court made things worse. It outraged southerners by declining, on shaky grounds, to compel extradition to Kentucky of a freed black Ohioan accused of abetting the escape of a slave.
The slavery issue soon moved to the battlefield. The Thirteenth Amendment, which abolished slavery for good, was paid for in blood.
In a guest introduction to the book, Professor Mark A. Graber of the University of Maryland School of Law draws a persuasive analogy between American slavery and the Holocaust. Quoting Hannah Arendt on “the banality of evil,” he shows how evil, no matter how monstrous, once institutionalized can become acceptable, even routine. If Maltz has done no more than warn us of that truth, his book has served a commendable purpose.
Walter Barthold has retired from the practice of law in New York City.