Thursday, January 14, 2010

Was Prigg a Compromise?

In his book Dred Scott and the Politics of Slavery, Earl M. Maltz makes an interesting point about the Supreme Court’s decision in Prigg v. Pennsylvania. I have discussed the decision at length – double click on the Prigg v. Pennsylvania label at the right to see the posts – so I will not provide a ton of detail here, but here is the essential background.

Very briefly, Justice JosephStory’s Opinion of the Court largely upheld the validity of the Fugitive Slave Act of 1793. The decision is generally seen as a “pro-southern” opinion both for this reason and because it accepted arguments, seen as coming from the south, that the Fugitive Slave Clause of the Constitution implicitly empowered Congress to fashion a federal remedy for the fugitive slave problem. In particular, Justice Story upheld the statutory scheme by which federal judges were authorized to hear slaveholder claims and order the return fugitives. A number of commentators, Maltz notes, thus see “a pro-Southern orientation in Story’s analysis.”

But Maltz also observes that it is possible to look at the opinion somewhat differently. Story also held that state officers could not be compelled to enforce the federal statute. This, Maltz suggests, was a substantial concession to the North, particularly by the three southern justices who joined Story’s opinion in full: John Catron (Tennessee), John McKinley (Alabama) and James Moore Wayne (Georgia). This is because federal judges were few and far between compared with state judicial officers. By excusing state officers from enforcing the statute, the court was placing a substantial burden on southern masters to locate a potentially distant federal judge.

Maltz persuasively argues that “the concurrence of the three southern justices in Prigg is most plausibly viewed as a reflection of a decision to sacrifice some of the interests of slaveowners in the hope of minimizing the sectional friction created by the dispute over fugitive slaves”:
. . . Catron, McKinley and Wayne almost certainly believed that they were making significant concessions to the North in endorsing the ban on supplemental state remedies for slaveowners pursuing fugitives and by the declaration that state officials could not be forced to cooperate in the enforcement of the federal statute. In the antebellum world, where state government officials vastly outnumbered representatives of the federal government, these limitations were of great practical significance to slaveholders.

After noting that two other southerners on the court – Roger B. Taney of Maryland and Peter V. Daniel of Virginia – “argued vigorously that effective enforcement . . . required participation by state officials,” Maltz points out that one of the southern justices who joined with Story explicitly referred to the trade-off between state enforcement and intersectional friction:

[W]hile conceding that the ban on state enforcement measures might well hinder the efforts of slaveowners to recapture fugitives, Wayne asserted that Southerners should be willing to pay that price in order to “remove . . . those causes which have contributed more than any other to disturb that harmony which is essential to the continuance of the Union.”

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