Vol. 21 No. 7 (July, 2011) pp.439-445
FUGITIVE SLAVE ON TRIAL: THE ANTHONY BURNS CASE AND ABOLITIONIST OUTRAGE, 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.
REFERENCES:
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.
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© Copyright 2011 by the author, Mark Golub.