An Imperfect Union: Slavery, Federalism, and Comity (review)

BOOK REVIEWS179 of "honor." Since poor whites and aristocratic planters shared an ideology of racial supremacy, they viewed the state's black population as an incendiary mass that had to be controlled through repressive laws and institutions. As Hindus brilliantly demonstrates, the Southern plantation and the Northern prison played a comparable role in their respective societies: each confined those classes deemed most threatening to the social order. W7hite South Carolinians virtually identified crime with race. Slave law created a separate set of magistrates' and freeholders' courts to try cases involving free blacks and slaves. In these tribunals crimes against property far outnumbered assaults and other types of offenses, providing a mirror image to the situation that prevailed in the regular criminal courts. Not until 1868, in the aftermath of slavery, would South Carolina 's lawmakers feel a need to establish a penitentiary. Not surprisingly, the first convicts were overwhelmingly black. Maxwell Bloomfield The Catholic University of America An Imperfect Union: Sfovery, Federalism, and Comity. By Paul Finkelman . (Chapel Hill: University of North Carolina Press, 1981. Pp. xii, 378. $22.00 cloth; $12.00 paper.) During the past decade, the institution of slavery and the antebellum conflict between North and South have commanded the attention of many legal historians, and Paul Finkelman's new study is a welcome addition to the growing list of literature on the subject. Finkelman focuses on the issue of comity, the willingness of one state as a matter of courtesy to enforce the laws of another state. And he specifically traces the changing views on interstate comity with regard to slaves in transit. Should the northern states protect the property rights of a southerner traveling with his slaves through free territory? This is the question that repeatedly confronted judges and legislators during the decades before the Civil War. Under southern law the slaveholder had the right to his chattels, and if the northern states accepted interstate comity they would protect the property of the transient southerner. During the antebellum period, the northern states thus faced the increasingly troublesome problem of whether to extend the courtesy of comity to their sister states to the south or to deny comity in obedience to the higher moral principle of freedom. Finkelman traces this issue of comity and slave transit from the 1780s to 1860, beginning with the nation's constitutional convention and closing with the onset of secession. He finds a willingness to grant comity during the first three decades of the nineteenth century, and he recounts how northern courts and legislatures refused to liberate slaves visiting in free territory. Finkelman notes a change, however, in the 1830s and 180CIVIL WAR HISTORY 1840s as abolitionist rhetoric became increasingly shrill and sectional antagonisms mounted. Beginning with Massachusetts in 1837 many northern states denied the property claims of traveling slaveholders and adopted the view that a slave became free once he arrived in free territory no matter whether he was a resident, sojourner, or visitor. At the same time southern judges became increasingly hostile toward the claims of northern free blacks, reciprocating the Yankee's denial of comity. By the 1850s, the prospect of intervention by the United States Supreme Court heightened the controversy over slave transit. According to Finkelman, northerners feared that the proslavery Taney Court would uphold the right of transient slave owners, and that this in turn would prove one more step toward the gradual introduction of bondage throughout the Union. The Taney Court never had the opportunity to rule on the question , but Finkelman believes that northern fears of Supreme Court action were vital in severing the bonds of union and precipitating civil war. Finkelman may occasionally overstate the significance of his subject, but the issue did stir sectional passions and consequently it merits a thorough examination. If anything, Finkelman's presentation of the judicial response is a bit too thorough. He has examined over 225 court cases, and his sometimes repetitious recital of these judicial skirmishes can try the reader's patience. In contrast, his examination of state legislation on the transit issue is cursory. Judicial action receives full attention whereas the behavior of lawmakers in the legislature suffers relative neglect. Yet anyone concerned with the...