by Earl M. Maltz. Lawrence, Kansas: University Press of Kansas, 2010 (Landmark Law Cases and American Society Series). 192pp. Cloth. $34.95. ISBN: 9780700617357. Paper $17.95. ISBN: 9780700617364.
Reviewed by Mark Golub, Department of Politics and International Relations, Scripps College. Email: mgolub [at] scrippscollege.edu.
It may be difficult for modern readers fully to grasp the extent to which public life in Boston was consumed by the events surrounding the capture and rendition of Anthony Burns in the spring of 1854. A fugitive slave from Virginia, Burns came to serve as a focal point in sectional and national crises over the place of slavery in the expanding Republic and, more importantly, the possibility of containing those crises within the existing constitutional order.
At every stage of the case, crowds gathered outside the courtroom (itself ringed with chains and military guard) as abolitionist mobs contemplated the use of force. A botched rescue attempt left one guard dead but failed to liberate the prisoner. On the day of his rendition, tens of thousands of protesters filled the streets to see Burns – surrounded by a hollow square of 100 U.S. Marshals and their deputies, a detachment of U.S. Army Infantry, two companies of marines, an artillery troop with nine-pound artillery piece, and the entire Boston police force – transported from the courthouse to the wharf and then, by boat, on to Virginia and slavery.
Earl Maltz has written a sleek, streamlined history of the Burns case – his second contribution to the University of Kansas’s Landmark Law Cases series – that no doubt will become the standard reference for legal scholars while at the same time providing a suitable introduction for a more general reading audience. FUGITIVE SLAVE ON TRIAL: THE ANTHONY BURNS CASE AND ABOLITIONIST OUTRAGE follows the legal proceedings closely, while providing just enough social and historical context to make sense of the case as a product of political forces larger than itself. In just 158 pages (plus a helpful chronology and brief bibliographic essay in lieu of footnotes) the book covers relevant constitutional background, Burns’ escape, capture, trial and rendition, as well as the case’s aftermath – in which pro-Union political forces brought indictments against abolitionist rioters/rescuers while abolitionists targeted Judge Loring, the Federal commissioner who presided over the proceedings, for removal from office.
It is important to see how these conflicts exceed the more basic question of whether slavery was justified, and Maltz is especially skillful in tracing the politics of how slavery would be accommodated within an anti-slavery/pro-Union coalition (which abolitionists simply called “pro-slavery”). The Constitution’s Fugitive Slave Clause may have “defined the minimum degree of tolerance for Southern institutions that the slave states [*440] required of Northern states” (p.6) but, even more than the disputed status of the territories, the fugitive slave cases of the 1850s tested the viability of this compromise.
The Fugitive Slave Act of 1850 specified a notoriously lopsided process for administering the return of alleged fugitives. It provided for federal commissioners to preside over hearings and issue certificates of removal, while stripping them of discretion to the greatest degree possible: commissioners were to hear claims “in a summary manner;” the testimony of putative slaves was prohibited, yet the testimony of a claimant, certified by a judge in the state where the escape occurred, counted as conclusive evidence; the authority of federal commissioners superseded state laws, such as those in Massachusetts, which guaranteed fugitives the right to a jury trial (and so invited the possibility of jury nullification); commissioners were paid $10 when they ruled for claimants, but only $5 if they ruled against.
Given this restrictive framework, it is not surprising that the abolitionist lawyers representing Burns were torn between legalistic strategies that maneuvered within the designedly pro-slavery system, and high-minded appeals to a “higher law” – which challenged the system’s basic legitimacy while playing to an audience outside the courtroom that might be mobilized for the anti-slavery cause. In fact, Burns’ lawyers utilized both strategies. The result is a somewhat disorienting feeling that readers may experience as Maltz’s account of the case shifts back and forth between the official legal discourse spoken within the courthouse and the polemical agitation spoken outside its doors.
Constrained by the terms of the hearing, and confronted by the record of an Alexandria circuit court attesting to Charles Suttle’s ownership of the slave Anthony Burns, the legal defense was left to press technical errors and inconsistencies in the filings, in hopes of casting doubt as to Burns’ identity. Maltz dutifully records these details of the rendition hearing: the Virginia transcript neglected to mention Burns’ severely damaged right hand, or described it merely as “a scar;” a witness for the claimant described as a scar what was clearly a brand on Burns’ cheek; reliable witnesses testified that Burns was in Massachusetts on dates prior to his alleged escape. But these tactical objections masked what was really at stake in the hearing. The question that gripped Boston in the spring of 1854 was not whether Charles Suttle had the right man, but whether New Englanders would facilitate his return to slavery even if he did. At least within the courtroom, attacks on the constitutionality of the Fugitive Slave Act, like appeals to liberty or conscience, were to no avail.
With their outcome all but assured, there is plenty of tragedy but very little drama in the courtroom proceedings that Maltz so carefully records. The real drama took place in the streets, in the mass meetings at Faneuil Hall, and more broadly in the “lesson for the day” (the title and final line of Theodore Parker’s June 4th sermon) that Burns’ rendition supplied for committed abolitionists and the less fervent anti-slavery North. For Parker, that lesson concerned a proper allocation of responsibility. The Burns case [*441] demonstrated that slavery was no longer some far-away, uniquely Southern concern, but posed an immediate threat to New England liberties and required the support of federal and Northern state governments to survive. It was no longer possible to ignore these facts while Burns was held captive and the Boston courthouse used, quite literally, as a slave-pen.
Parker was especially fierce in denouncing Judge Loring, suggesting that his willingness to serve as slave commissioner made him responsible both for “stealing a man,” and for the violence that predictably resulted from efforts to stop that kidnapping – including the death of Burns’ guard during the failed rescue attempt. In Parker’s view, and in the view of fellow abolitionists, the Burns case revealed the true price of Union with slaveholders. There could be no Union without the Fugitive Slave Act and by its terms, Parker insisted, the citizens of Massachusetts were agreeing to act as kidnappers and slave-catchers. At the Faneuil Hall meeting, Parker addressed the crowd as “fellow subjects of Virginia!” and Wendell Phillips declared: “if [Burns] leaves the city of Boston, Massachusetts is a conquered State” (p.62).
Burns did leave the city of Boston. He was returned to slavery under protection of federal troops, joined by the guns and drawn swords of Massachusetts militia and Boston police, who held back massive crowds as they hissed and cursed beneath buildings draped in black cloth. But that did not bring the affair to an end.
In part due to his notoriety, Boston abolitionists were at first unable to purchase Burns’ freedom, and he languished for five months in a small, dark cell of a slave jail, shackled hand and foot, as his health steadily deteriorated. Burns was then sold to a North Carolina slave-trader for $905 before a group led by the Reverend Leonard Grimes was able eventually to purchase his freedom. Burns spoke for a time on the abolitionist speaking-circuit, studied at Oberlin College, and eventually took a position leading a black Baptist church in Ontario, Canada, where he died.
In chronicling the aftermath of the case, Maltz divides his attention between the fates of Burns himself, that of the rescuers – several of whom were indicted on state and federal charges, none of which stuck – and the campaign to remove Judge Loring. Curiously, it is the post-trial fate of Judge Loring that receives the fullest treatment by far (48 pages, while the whole of Burns’ life receives just 44 pages) and self-consciously supplies the narrative frame of the book. As Maltz says in his Introduction, “this book is the story of the trial of Anthony Burns and the trials of Edward Loring – both the rendition hearing over which he presided and the removal proceedings in which he was essentially the defendant” (p.3, emphasis supplied). Rhetorically, it is a misconceived pairing, since Loring’s “trials” can only seem pale and insignificant beside those of Burns. It is also a lost opportunity, as Maltz does not explore in any detail how the case served as a critical turning point for abolitionist strategy or Northern public opinion, or how Burns figured prominently in the searing oratory of abolitionist popular [*442] agitation – against which the anti-Loring removal campaign comes off as small and narrowly legalistic in focus.
The book does demonstrate, convincingly, how the Burns conflict “provok[ed] internecine warfare” (p.113) in the Know-Nothing Party, which had surged to power on a nativist and anti-Catholic agenda in the November 1855 elections, but it is not obvious why this limited claim warrants the attention and detail it receives. The efforts to punish Judge Loring for his role in the case were largely procedural in nature, and a good portion of Maltz’s book is spent documenting this procedure. Several pages are devoted to the conflict over Loring’s reappointment to his position on the faculty of the Harvard Law School – in which we learn something of the complexities of Harvard’s governing structure and a split between the conservative Harvard Corporation and the more liberal Board of Overseers. But, most of Maltz’s focus is with efforts to strip Loring of his position as a probate judge for Suffolk County – a position he continued to hold even while serving as a local commissioner for the federal district court, where he acted under the terms established by the Fugitive Slave Act of 1850. The question thus arose, whether Massachusetts law permitted him to hold both jobs at the same time – and, if not, whether state laws that prohibited him from doing so were themselves constitutionally valid.
Under the Massachusetts constitution, Governors were authorized to remove judges from office, even without cause, if confirmed by simple majority votes in both houses of the legislature. Seeking the most public and politicized venue for their grievances, abolitionists pursued this “removal by address” rather than impeachment. To be sure, some readers will appreciate Maltz’s painstaking documentation of the debates over judicial independence as they wound their way through the house Committee on Federal Relations, a vigorous floor debate and vote (206-111 in favor of removal) before being rejected by Governor Henry Gardner out of concern for his own national political aspirations.
Readers may also be interested to learn how abolitionists responded to this setback by strengthening the Massachusetts personal liberty law in order to prohibit, among other things, slave commissioners from holding any state office. This element of the statute was clearly designed with Loring in mind. And yet it was not until 1857, armed with the new personal liberty law and with the state legislature controlled by Republicans and Nathaniel Banks replacing Henry Gardner as Governor, that a successful removal campaign took place and Loring was finally stripped of his judgeship. But many readers, and especially those familiar with the period, may wonder why this episode is treated in such meticulous detail while comparatively little attention is paid to how the Burns case was used (successfully) by abolitionists to symbolize the nationalization of slave power and to mobilize Northern sentiment against accommodation of Southern interests.
The decision to frame the book around “the trials of Edward Loring” is especially puzzling given that Loring’s “trials” were so slight: within months of his removal he was appointed by President Buchanan to fill a vacancy on [*443] the federal Court of Claims, where he served “without controversy” until his retirement some twenty years later. It is true that the removal campaign was itself an abolitionist tactic, but it was only a small part – and surely not the most significant expression of “abolitionist outrage” or most effective way that abolitionists were able to leverage public interest in the case in the service of their radical anti-slavery agenda.
On the contrary, the Burns case figured centrally in some of the most dramatic and most radical of abolitionist agitation, with far-reaching effects. It directly inspired Emerson’s “American Slavery,” Walt Whitman’s satirical “Boston Ballad” (the first poem in Leaves of Grass, published in 1855) and Henry David Thoreau’s influential “Slavery in Massachusetts” – none of which make it into Maltz’s account of the case. Thoreau introduced his essay to the public by reading portions of it at the Massachusetts Anti-Slavery Society’s Fourth of July protest rally in Framingham where he was famously upstaged by William Lloyd Garrison, who concluded his remarks by setting on fire, one after the other, the Fugitive Slave Law, Judge Loring’s rendition decision, and the United States Constitution. By clarifying both the price of Union and the limits of moral suasion, the Burns case pushed moderate anti-slavery Northerners toward radical abolition and pacifist abolitionists toward an embrace of violent resistance to slavery. As one observer of the trial put it: “We went to bed one night old-fashioned, conservative, Compromise Union Whigs, and waked up stark mad Abolitionists.”
How, then, are we to understand Maltz’s decision to devote roughly one third of FUGITIVE SLAVE ON TRIAL to “the difficulties faced by Edward Loring” (p.157), while mentioning only in passing how the case transformed the thinking of Northerners about their relationship to slavery, or its affect on the abolitionist movement itself? And, what to make of Maltz’s evident sympathy to Loring’s plight, which seems so out of place in the context of his participation in the re-enslavement of Burns and the larger social-political shifts that surrounded it?
In part, the book’s focalization can be explained by its genre. It is, after all, a legal history that Maltz has written – the history of a case, not the history of an era. More than this, Maltz’s interest lies not in the person of Edward G. Loring but in what he represents, which, for Maltz, is fidelity to law in the face of political extremism. Maltz introduces the decision as “indisputably correct on the facts and almost certainly justified by existing precedent” (p.2) despite its obviously unjust result – at least from today’s perspective. And, while Maltz’s rhetorical style aspires to a kind of just-the-facts objectivity of pure description, his conclusion reads more like a defense of Loring against his abolitionist critics. Where his detractors would have had Loring resign his position in protest or adopt any plausible legal theory to justify a different outcome, Maltz writes, Loring himself “believed that it was his duty to evaluate the law and the facts objectively and to implement that evaluation, even if the result might seem unjust in the abstract” (p.157). Where critics denounced Loring’s unflinching legalism as a moral failing, Maltz counters that Loring understood himself [*444] to be “demonstrating a different kind of moral courage by dispassionately analyzing the demands of the Fugitive Slave Act in the face of strong public pressure” and so “was vindicating the concept of the rule of law” (p.158).
For some, this will count as a convincing answer to Loring’s abolitionist critics, whose uncompromising moral stance carries peculiar resonances in our current age of fundamentalist politics, Tea Party constitutionalism, and renewed calls for “nullification” of unpopular federal laws (healthcare reform, e.g.). But, others may feel it rather misses the point of the abolitionist charge. After all, Loring’s critics were also interested in him for what he represented, not as an individual. For abolitionists, Loring represented complicity with slavery rather than rule of law – and nothing symbolized lawlessness more powerfully than the image of slavery itself. As with Thoreau’s insistence that Massachusetts was on trial rather than Burns:
Does any one think that justice or God awaits Mr. Loring's decision? For him to sit there deciding still, when this question is already decided from eternity to eternity, and the unlettered slave himself and the multitude around have long since heard and assented to the decision, is simply to make himself ridiculous. . . Massachusetts sat waiting Mr. Loring's decision, as if it could in any way affect her own criminality. Her crime, the most conspicuous and fatal crime of all, was permitting him to be the umpire in such a case. (Thoreau, my emphasis)
Fidelity to law supplies no answer against charges that the authority of the courts has been fatally compromised by its complicity with slavery. This lesson of the Burns rendition was candidly displayed in the form of hundreds of armed men, each an agent of the state, ringing the lone slave Burns against mob-filled streets. There, for all to see, law took the side of tyranny against the slave, slavery against liberty and against the people.
Thoreau found Loring’s dutiful application of law “ridiculous” because he thought the details of the decision (and the focus of Maltz’s book) were not of central concern. He was suggesting a better and more troubling question: how can the law fail to know that which is obvious even to the “unlettered slave” and “multitude around?” The rendition of Anthony Burns revealed this distinctly Garrisonian point about the price of Union and the limits of compromise or reform. That it fails to register in Maltz’s history of the case is not particularly a fault of the author. Rather, it attests to the self-consciously revolutionary nature of the abolitionist critique, and so necessarily overflows the boundaries of traditional legal history.
Nonetheless, it is significant that the Burns case figured so centrally in abolitionist popular (as opposed to legal) agitation. Readers interested in the broader social implications of the case will do well to consult Albert Von Frank’s excellent book, THE TRIALS OF ANTHONY BURNS: FREEDOM AND SLAVERY IN EMERSON’S BOSTON. Von Frank’s book is much longer and more literary than Maltz’s account and is chiefly concerned with the fugitive slave issue in relation to Emersonian Transcendentalism (a very [*445] different project). It is also a splendid example of how American Studies methodologies can inform Law and Society research. Von Frank convincingly locates the Burns case “at the heart of a revolution” that transformed public thinking about the place of slavery and the meaning of liberty in America. In this sense, his differences with Maltz may be substantive as well as disciplinary. Von Frank makes the case that Burns marks a revolutionary turn against reformist compromise on the slavery issue, which culminates eventually in the Civil War. In Maltz we see not a revolution, but a defense of the rule of law.
FUGITIVE SLAVE ON TRIAL: THE ANTHONY BURNS CASE AND ABOLITIONIST OUTRAGE tells the story of a remarkable and under-studied episode in American history. Despite some not-unsubstantial misgivings about how the book frames the aftermath of the case, Earl Maltz should be commended for making the details of the affair accessible to a wide range of readers, and for his meticulous historical documentation of these important events.
Thoreau, Henry D. 1996. “Slavery in Massachusetts,” in THOREAU: POLITICAL WRITINGS, Nancy Rosenblum, ed., Cambridge: Cambridge University Press.
Von Frank, Albert J. 1998. THE TRIALS OF ANTHONY BURNS: FREEDOM AND SLAVERY IN EMERSON’S BOSTON, Cambridge: Harvard University Press.
© Copyright 2011 by the author, Mark Golub.