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The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America

Published online by Cambridge University Press:  18 August 2010

Gautham Rao
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In antebellum America, as in pre-industrial England, it was commonplace to witness civilians accompanying sheriffs and justices, scouring the countryside in search of scoundrels, scalawags, and other law-breakers. These civilians were the posse comitatus, or uncompensated, temporarily deputized citizens assisting law enforcement officers. At its core, the posse comitatus was a compulsory institution. Prior to the advent of centralized police forces, sheriffs and others compelled citizens to serve “in the name of the state” to execute arrests, level public nuisances, and keep the peace, “upon pain of fine and imprisonment.” Despite its coercive character, though, the posse was widely understood as one among many compulsory duties that protected the “public welfare.” Americans heeded the call to serve in local posses, explained jurist Edward Livingston, because of communal “ties of property, of family, of love of country and of liberty.” Such civic obligations, wrote Alexis de Tocqueville in 1835, illustrated why Americans had such a pressing “interest in … arresting the guilty man.” At once coercive and communitarian, lamented Henry David Thoreau, the posse comitatus exemplified how those that “serve the state … with their bodies,” were “commonly esteemed good citizens.”

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Law and History Review , Volume 26 , Issue 1 , Spring 2005 , pp. 1 - 56
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Copyright © the Board of Trustees of the University of Illinois 2008

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55. And such knowledge, the logic went, was as much a disincentive for slaveholders to attempt recaption as it was an incentive for slaves to seek refuge in free states. U.S. Congress, Senate, Resolutions of the Legislature of Kentucky, in favor of the passage of a law by Congress to enable citizens of slaveholding States to recover slaves escaping into the non slaveholding states, 30th Cong., 1st sess., 1847Google Scholar , Serial Set 511, Senate Misdoc. 19, 15. Reminisced Virginia's Thomas Bayly in 1850, “The inefficiency of the former law greatly encouraged negroes to attempt an escape.” Bayly, Thomas H., Circular of Thomas H. Bayly, of Virginia, To his Constituents (Washington, D.C.: Congressional Globe Office, 1850), 7Google Scholar.

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66. The 1850 law explicitly addressed the fear Andrew Butler expressed in 1848 that federal marshals in free states would be “reluctant” to enforce a federal fugitive slave law. Section 5 of the 1850 law imposed a $1000 fine on any marshal who “refuse to receive” or otherwise fail to execute process under the law. Butler Report, 15. Congressional Globe, 31st Cong., 1st Sess., January 31, 1850, 271Google Scholar ; Fugitive Slave Law of 1850, 9 U.S. Statutes at Large 462.

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126. It was no less perplexing to slaves, at least according to one account: “My master offers me my freedom if I will take up arms, but I have a family … and he does not offer to free them; and we have come to the conclusion that there is no use in fighting for our freedom when any one of our children … are to be made slaves.” Smith, James Lindsay, Autobiography of James L. Smith … (Norwich: Bulletin Company, 1881), 116Google Scholar . Hahn, , A Nation under Our Feet, 88–89Google Scholar.

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129. Swinney, Everette, Suppressing the Ku Klux Klan: The Enforcement of the Reconstruction Amendments (New York: Garland Publishing, 1987), 118.Google Scholar

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