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The Antislavery Judge Reconsidered

Published online by Cambridge University Press:  21 July 2011

Jeffrey M. Schmitt
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It is conventionally believed that neutral legal principles required antislavery judges to uphold proslavery legislation in spite of their moral convictions against slavery. Under this view, an antislavery judge who ruled on proslavery legislation was forced to choose, not between liberty and slavery, but rather between liberty and fidelity to his conception of the judicial role in a system of limited government. Focusing on the proslavery Fugitive Slave Act of 1850, this article challenges the conventional view by arguing that the constitutionality of the fugitive act was ambiguous; meaning that neutral legal principles supported a ruling against the fugitive act as well as a ruling in favor of it, and that prominent antislavery judges were influenced to uphold the act by a belief that doing so was necessary in order to preserve the Union.

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Articles
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Law and History Review , Volume 29 , Issue 3 , August 2011 , pp. 797 - 834
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Copyright © the American Society for Legal History, Inc. 2011

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References

1. The conventional view is comprehensively presented in: Cover, Robert, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975)Google Scholar. This view, however, has not gone completely unchallenged. Several book reviews have suggested that Cover may have overstated the antislavery character of antebellum judges or that the judges' claims that they lacked legal discretion to rule against proslavery laws may have been self-serving justifications rather than the actual motivation behind their decisions. See Barnett, Redmond J., “Review: Professionalism and the Chains of Slavery” Michigan Law Review 77 (1979): 673–74CrossRefGoogle Scholar; Fehrenbacher, Don E., “Review: Proslavery Law and Antislavery Judges” Reviews in American History 3 (1975): 454–55CrossRefGoogle Scholar; and Tushnet, Mark, “Review” Journal of American Legal History 20 (1975)Google Scholar: 169. However, no one has yet offered a developed argument against Cover's thesis, which seems to have been accepted by most academics in both law and history. See, for example, Finkelman, Paul, “Fugitive Slaves, Midwestern Racial Tolerance, and the Value of ‘Justice Delayed,’” Iowa Law Review 78 (1992): 89Google Scholar; Maltz, Earl M., “Slavery, Federalism, and the Structure of the Constitution” The American Journal of Legal History 36 (1992): 495CrossRefGoogle Scholar; Strassberg, Martha, “Taking Ethics Seriously: Beyond Positivist Jurisprudence in Legal Ethics” Iowa Law Review 80 (1995): 901Google Scholar; Streichler, Stuart, Justice Curtis in the Civil War Era (Charlottesville: University of Virginia Press, 2005)Google Scholar, 41.

2. See Cooper, William J., The South and the Politics of Slavery: 1828–1856 (Baton Rouge: Louisiana State University Press, 1978), 229–30Google Scholar.

3. 1 Freehling, William W., Road to Disunion (Oxford: Oxford University Press, 1990)Google Scholar, 461 (quoting Alexander Stevens).

4. Ibid., 461–62. The “slavepower” was seen as antirepublican because slaveholding states had more political power than their white population would dictate.

5. Fugitive Slave Act of 1793, 2 Stat. 302–5 (1793).

6. Prigg v. Pennsylvania, 41 U.S. 539 (1842), 615–22.

7. See Morris, Thomas D., Free Men All (Baltimore: John Hopkins University Press, 1974)Google Scholar, 109, 127.

8. Whigs were suspicious of Calhoun's motives and thought that newly elected Whig President Zachary Taylor could resolve the crisis. Potter, David M., Impending Crisis (New York: Harper & Row, 1976), 85–86Google Scholar.

9. Morris, Free Men All, 130 (quoting Craven, Avery O., The Growth of Southern Nationalism 1848–1861 (Baton Rouge: Louisiana State University Press, 1953Google Scholar);64.

10. Potter, Impending Crisis, 96.

11. Ibid.

12. Ibid., 97.

13. California was admitted under an antislavery constitution that had already been presented to Congress without going through a territorial phase.

14. The status of slavery was otherwise left ambiguous. It was unclear whether, as Northern Democrats claimed, voters in the territories could ban slavery, or, as Southerners argued, slavery was mandatory until the territory was admitted as a state.

15. Potter, Impending Crisis, 99–100.

16. Freehling, Road to Disunion, 486.

17. The content of the Fugitive Slave Act will be discussed in detail in Section II (i).

18. Holt, Michael F., The Rise and Fall of the American Whig Party (New York: Oxford University Press, 1999)Google Scholar, 598 (quoting Fillmore).

19. Ibid., 614. Proving that such views were shared by the judiciary, Supreme Court Justice Samuel Nelson warned: “My deep conviction and belief are, that [the Union] depends, at this moment, upon the confidence inspired by the late proceedings in congress, and by the indications of public sentiment in the free states that this constitutional obligation [to return fugitive slaves] will be hereafter executed in the faith and spirit with which it was entered into . . . .” In re Charge to the Grand Jury, 30 F. Cas. 1007 (S.D.N.Y. 1851), 1012.

20. Cover, Justice Accused, 207 (stating that the constitutionality of the fugitive slave acts was “well-established by the 1850's”).

21. Ibid. 197–98, 131–48.

22. Ibid.

23. Ibid. Cover further explains that “the legal actor did not choose between liberty and slavery. He had to choose between liberty and ordered federalism; between liberty and consistent limits on the judicial function; between liberty and fidelity to public trust; between liberty and adherence to the public corporate undertakings of nationhood; or, as some of the judges would have it, between liberty and the viability of the social compact,” 198.

24. After circuit courts upheld the law, however, federal district judges were bound to follow suit.

25. See, for example, Campbell, Stanley W., The Slave Catchers (Chapel Hill: University of North Carolina Press, 1970)Google Scholar; Fehrenbacher, Don E., The Slaveholding Republic: An Account of the United States Government's Relations to Slavery (New York: Oxford University Press, 2002)CrossRefGoogle Scholar, 240; Morris, Free Men All; Streichler, Justice Curtis, 4; but see Cover, Justice Accused, 207; and Johnson, Allen, “The Constitutionality of the Fugitive Slave Law” Yale Law Journal 31 (1921): 161–82CrossRefGoogle Scholar. Alfred Brophy has argued that Allen Johnson's article, the most comprehensive academic writing in support of the constitutionality of the Fugitive Slave Act of 1850, was part of the early twentieth century movement to reargue the South's cause in order to promote reconciliation between the North and South rather than a scholarly examination of the constitutional theories of the 1850s. See Alfred Brophy, “Jim Crow History in the Yale Law Journal,” (unpublished manuscript).

26. Fugitive Slave Act, ch. 60, 9 Stat. 462, 463 (1850) (repealed 1864).

27. Ibid., 465.

28. Ibid., 464.

29. Ibid.

30. Ibid., 463–64.

31. Ibid.

32. Ibid., 462.

33. See, for example, Fehrenbacher, Slaveholding Republic, 240–41; Chase, Salmon, An Argument for the Defendant in the Case of Wharton Jones v. John VanZandt (Cincinnati: R. P. Donogh & Co., 1847), 96–102Google Scholar; Rantoul, Robert Jr., Memoirs, Speeches and Writings of Robert Rantoul, Jr. (Hamilton, Luther, ed., Boston: John P. Jewett and Company, 1854), 55–58Google Scholar.

34. U.S.Const. art. IV, § 2, cl. 3.

35. See, for example, Chase, An Argument for the Defendant 93; Spooner, Lysander, A Defense for Fugitive Slaves, Against the Act of Congress of February 12, 1793, and September 18, 1850 (Boston: Bela Marsh, 1850), 6–9Google Scholar, 27–43.

36. See, for example, Chase, An Argument for the Defendant, 89; and Trial of Thomas Sims, on an Issue of Personal Liberty, on the Claim of James Potter, of Georgia, Against Him, as an Alleged Fugitive From Service: Arguments of Robert Rantoul, Jr. and Charles G. Loring, with the Decision of George T. Curtis (Boston: WM. S. Damrell & Co., 1851), 34–36Google Scholar (argument of Charles Loring).

37. See Tappan, Lewis, The Fugitive Slave Bill: Its History and Unconstitutionality; With an Account of the Seizure and Enslavement of James Hamlet (New York: William Harned, 1850)Google Scholar, 21; “Trial of Henry W. Allen, U.S. Deputy Marshal, For Kidnapping, With Arguments of Counsel & Charge of Justice Marvin, on the Constitutionality of the Fugitive Slave Law” (Syracuse: Power Press of the Daily Journal Office, 1852), 18 (printing the argument of Gerrit Smith), in Fugitive Slaves in American Courts: The Pamphlet Literature, Vol. 1 ed. Finkelman, Paul (New York & London: Garland Publishing, Inc., 1988)Google Scholar, 222; Sumner, Charles, Orations and Speeches, Vol. (Boston: Ticknor, Reed, & Fields, 1850)Google Scholar, 402; Trial of Thomas Sims, 25 (argument of Charles Loring); “Fugitive Slave Law,” The Liberator (Boston) October 11, 1850; and Miller v. McQuerry, 17 F. Cass. 335 (1853), 339 (discussing the arguments of counsel).

38. Miller, 339. Commissioner George T. Curtis, however, ruled that the fee arrangement was permissible if the commissioner chose not to accept the higher fee, as accepting the fee was not mandatory. Trial of Thomas Sims, 39.

39. Pfander, James E., “Judicial Compensation and the Definition of Judicial Power in the Early Republic” Michigan Law Review 107 (2008): 8Google Scholar; Klerman, Daniel, “Jurisdictional Competition and the Evolution of the Common Law” University of Chicago Law Review 74 (2007): 1187CrossRefGoogle Scholar; and Urdahl, Thomas K., The Fee System in the United States (Madison, WI: Democrat Printing Co., 1898), 145, 151–52Google Scholar. The constitutionality of awarding fees to federal judges of “inferior courts,” however, was questionable under Article III. In fact, the Process Act, a federal statute that paid federal judicial officers the same as corresponding state judges, specifically excluded fees. Pfander, “Judicial Compensation,” 14–19, 19 n.125, 133.

40. See Pfander, “Judicial Compensation,” 8, n. 32 (describing early British and colonial fee systems); Klerman, “Jurisdictional Competition,” 1187–88 (same); see also Tumey v. Ohio, 273 U.S. 510 (1926), 524, 531 (“We have been referred to no cases at common law in England prior to the separation of colonies from the mother country showing a practice that inferior judicial officers were dependent upon the conviction of the defendant for receiving their compensation.”).

41. Murray's Lessee v. Hobokin Land and Improvement Co., 59 U.S. 272 (1855), 277.

42. See, for example, Hesketh v. Braddock, 3 Burr. 1847 (1766), 1856 (“There is no principle the in law more settled than this—that any degree, even the smallest degree of interest in the question depending, is a decisive objection to a witness, and much more to a juror, or to an officer to whom the jury is returned. . . . The minuteness of the interest will not relax the objection. For, the degrees of influence cannot be measured: no line can be drawn, but that of a total exclusion of all degrees whatsoever.”). Although I have been unable to find a record of antislavery advocates citing to such common law cases, these cases were available during the 1850s.

43. See, for example, Rantoul, Memoirs, Speeches and Writings, 51–53; Trial of Thomas Sims, 1–14, 25–34 (arguments of Robert Ranoul and Charles Loring); Tappan, The Fugitive Slave Bill, 28; Spooner, A Defense for Fugitive Slaves, 9–17; and “Habeas Corpus Trial,” Daily Free Democrat (Milwaukee, WI) June 7, 1854 (printing the argument of Byron Paine, counsel for the defendant in the case that culminated in Ableman v. Booth, 62 U.S. 506 [1859]).

44. U.S. Const. art. III, § 1.

45. See Lindquist, Charles A., “The Origin and Development of the United States Commissioner System” American Journal of Legal History 14 (1970), 6–8CrossRefGoogle Scholar; An Act in addition to an act, entitled “An act for the more convenient taking of affidavits and bail in civil causes, depending in the courts of the United States” 3 Stat. 350 (1817); An Act further supplementary to an act entitled, “An act to establish the judicial courts of the United States,” 5 Stat. 516 (1842).

46. U.S. Const. art. III, § 1 (emphasis added).

47. Martin, 14 U.S. 304 (1816), 331 (“The whole judicial power of the United States should be, at all times, vested either in an original or appellate form, in some courts created under its authority.”). For antislavery use of this argument, see Thomas H. Talbot, The Constitutional Provision Respecting Fugitives From Service or Labor, and the Act of Congress, of September 18, 1850 (Boston: Bela Marsh, 1852), 78; Trial of Thomas Sims, 1, 15, 26 (arguments of Robert Rantoul and Charles Loring).

48. Prigg, 616; Spooner, A Defense for Fugitive Slaves, 9; Talbot, Fugitives From Service or Labor, 77–78, 105; Trial of Thomas Sims, 4–5, 34 (arguments of Robert Rantoul and Charles Loring). In addition to Justice Story's declaration in Prigg, it seems plausible to think that commissioners in fugitive slave hearings exercised federal judicial power under the test announced in Murray's Lessee v. Hobokin Land and Improvement Co., 59 U.S. 272 (1855). In Murray's Lessee, the court held: “we do not consider congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination,” 284. In Jones v. Van Zandt, the Supreme Court stated that the Fugitive Slave Act of 1793 “was only carrying out, in our confederate form of government, the clear right of every man at common law to make fresh suit and recapture of his own property within the realm.” 46 U.S. 215 (1847), 229 (emphasis added).

49. See Spooner, A Defense for Fugitive Slaves, 15; Talbot, Fugitives From Service or Labor, 77–84; and Trial of Thomas Sims, 5–6 (argument of Robert Rantoul). Although other federal officers, such as federal marshals, may have exercised quasi-judicial powers, their actions were reviewed by, or appealable to, a federal court. Federal judicial power was thus vested in the court to which the decision was appealed, just as state decisions involving a federal question could ultimately be appealed to the Supreme Court.

50. See, for example, Fehrenbacher, Slaveholding Republic, 242–43; Miller v. McQuerry, 17 F. Cass. 335 (1853) (McLean, J); “The Fugitive Slave Law,” Boston Daily Advertiser, November 2, 1850 (printing an exchange between Charles Gibbons and Supreme Court Justice Robert Grier); In re Charge to the Grand Jury, 1011 (Nelson, J); “The Constitutionality of the Fugitive Slave Law,” Boston Daily Advertiser, November 19, 1850 (printing a speech of Benjamin Curtis, a lawyer who would be appointed to the Supreme Court in 1851); “Argument of George Comstock in the Kidnapping Case at Syracuse, upon the Constitutionality of the Fugitive Slave Law” (Syracuse, 1852), 11, in vol. 2 Fugitive Slaves in American Courts, 336; and Trial of Thomas Sims, 42 (opinion of Commissioner George T. Curtis).

51. Jury trials are required only in criminal trials and those at common law. U.S. Const. amend. VI, VII.

52. See, for example, Rand, Asa, The Slave-Catcher Caught in the Meshes of Eternal Law (Cleveland: Steam-Press of Smead and Cowles, 1852), 24–25Google Scholar; “Trial of Henry W. Allen,” 14–16. In the trial of Thomas Sims, Charles Loring described the commissioner's decision as follows: “[T]he immediate result is, that you adjudge the captive to be a slave; that you adjudge that he belongs, as a slave, to this claimant; and that you order him to be delivered up directly to the claimant's hands, as a slave—not delivered over to the officers of the law, but to the person claiming ownership, and of course delivered to him as owner . . . and without qualification or limitation of such right of ownership.” In response, Commissioner George T. Curtis argued: “My view of it is this; that it is my duty, if satisfied, to make out a certificate, not certifying that he is a slave, but certifying what are the facts; First, that somebody escaped and owed service; and second, that this individual is the identical person. But there is a difference between that and certifying that a man is a slave.” Trial of Thomas Sims, 28.

53. Fugitive Slave Act, ch. 60, 9 Stat. at 464.

54. Talbot, Fugitives From Service or Labor, 52. Talbot further explained that, for a proceeding to be preliminary, “[t]he officer must know what the tribunal is, before which the final proceeding is to be had; and his decision, or whatever act or paper closes the proceeding before him, must recognize that tribunal, and his relation to it,” 43. Similarly, Robert Rantoul argued that “the decision of the commissioner is final on this question; his decree is the last act of judicial power.” Sims's Case, 61 Mass. 285 (1851) (printing Rantoul's argument for the defendant).

55. Rantoul, Memoirs, Speeches and Writings, 53; Trial of Thomas Sims, 8 (argument of Robert Rantoul); and Mann, Horace, Slavery: Letters and Speeches (Boston: B.B. Mussey & Co., 1851)Google Scholar, 308. As antislavery advocates pointed out, this argument especially seems to refute any argument that the commissioner's decision was limited or preliminary when combined with the Supreme Court's determination in Prigg, discussed below, that a master's rights over his fugitive slave are absolute and unqualified, even while the parties are still in transit to the state from which the fugitive fled. See Talbot, Fugitives From Service or Labor, 41–42, 107; and Trial of Thomas Sims, 31 (argument of Charles Loring).

56. Talbot, Fugitives From Service or Labor, 48–49; and Trial of Thomas Sims, 9 (argument of Robert Rantoul).

57. It is interesting to note that, during the debates over the Fugitive Slave Act, Senator Joseph R. Underwood of Kentucky asked: if there is no requirement for a trial by jury in the South, “may it not be urged by our northern friends that the examination shall be made abroad, where the fugitive is arrested?” Cong. Globe, 31st Cong., 1st Sess. App. 1611 (1850). This seems to imply that Senator Underwood believed that the hearings under the fugitive act were a final judicial determination of the alleged fugitive's status.

58. Prigg, 556–57.

59. Ibid.

60. Ibid., 626. Although there is some scholarly disagreement regarding whether Story spoke for a majority on all points, his opinion was treated as the Court's by judges who subsequently looked to Prigg as precedent. See Sims Case, 304–8 (Shaw, J); and Miller, 337–40 (McLean, J).

61. Prigg, 613.

62. Ibid., 612.

63. Ibid., 625–26.

64. Ibid., 617–18.

65. Ibid., 622. Story further held that Congress was granted exclusive power under the fugitive clause. Federal exclusivity could be seen as Story's third line reasoning, although it is not relevant to the topic of this article.

66. See Finkleman, Paul, “Sorting Out Prigg v. Pennsylvania” Rutgers Law Journal, 24 (1993)Google Scholar: 630.

67. Fugitive Slave Act of 1793, 2 Stat. 302 (1793).

68. Sim's Case, 61 Mass. 285 (1851), 304–8. See also, In re Charge to the Grand Jury, 1011 (Nelson J); and Trial of Thomas Sims, 42–43 (opinion of Commissioner Curtis).

69. Although there was no precedent on this point in the 1850s, it is interesting to note that the modern Court would almost certainly find this argument persuasive under Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

70. See above note 21 and surrounding text.

71. See, for example., “Argument of William H. Seward on the Laws of Congress Concerning the Recapture of Fugitive Slaves,” in Fugitive Slaves in American Courts, Vol. 1, 485.

72. Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004)Google Scholar, 213. The Supreme Court's exercise of judicial review was, of course, in Marbury v. Madison, 5 U.S. 137 (1803).

73. See Baker, H. Robert, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Athens: Ohio University Press, 2006)Google Scholar, 37, 56.

74. Snowiss, Sylvia, Judicial Review and the Law of the Constitution (New Haven: Yale University Press, 1990), 3–4Google Scholar.

75. See Ibid., 3–6; and Kramer, The People Themselves, 150.

76. See Snowiss, Judicial Review, 6. See also Kramer, The People Themselves, 150–54; and Wolfe, Christopher, The Rise of Modern Judicial Review (Lanham, MD: Rowman & Littlefield Publishers, Inc., 1994)Google Scholar. Even this early limitation in scope did not completely eviscerate judicial review, however, because, as Chief Justice Marshall explained in Ogden v. Sanders, a law was sometimes “in the opinion of one [judge], clearly consistent with the constitution, and, in the opinion of the other, as clearly repugnant to it.” 12 Wheaten 213 (1827), 339 (Marshal, J, dissenting).

77. Friedman, Barry, “The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy” New York University Law Review 73 (1998)Google Scholar: 340, 431.

78. See Snowiss, Judicial Review, 119; and Kramer, The People Themselves, 177.

79. See Snowiss, Judicial Review, 119, 161, 171.

80. Kramer, The People Themselves, 150, 209.

81. See Snowiss, Judicial Review, 119; 176–77.

82. Dred Scott v. Sanford, 60 U.S. 393 (1857).

83. See, for example, Graber, Mark A., Dred Scott and the Problem of Constitutional Evil (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar, 17, 76–77.

84. Friedman, “Countermajoritarian Difficulty,” 417 n.343; Fehrenbacher, Don E., The Dred Scott Case: Its Significance in American Law and Politics (New York: Oxford University Press, 1978)Google Scholar, 419, 439–40.

85. Fehrenbacher, The Dred Scott Case, 418.

86. See Whittington, Keith E., “Judicial Review of Congress Before the Civil War” Georgetown Law Journal 97 (2009): 1257–332Google Scholar (“The U.S. Supreme Court was more active in exercising its power to interpret the Constitution and limit the legislative authority of Congress than is conventionally recognized.”).

87. See Pollard v. Hagan, 44 U.S. 212 (1845); United States v. Cantril, 8 U.S. 167 (1807); and United States v. Yale Todd (1792), reported in United States v. Ferreira, 54 U.S. 40 (1852).

88. Whittington, “Judicial Review of Congress,” 1326–28.

89. Ibid., 1267.

90. Ibid., 1259.

91. See G. White, Edward, The American Judicial Tradition, Profiles of Leading American Judges, 3rd ed. (Oxford: Oxford University Press, 2007), viii–xiGoogle Scholar; Wolfe, The Rise of Modern Judicial Review, 13, 40–41.

92. See White, The American Judicial Tradition, xxv–xxvi.

93. See, for example, Wiecek, William M., The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977)Google Scholar, 197.

94. See, for example, Campbell, The Slave Catchers, 49.

95. See Fehrenbacher, Slaveholding Republic, 231, 244.

96. Although most blacks in the North were free, and courts typically presumed them to be so, see, for example, Prigg, 671 (McLean, J, dissenting), slaves brought in transit with a Southern master or subject to the last grasps of gradual emancipation remained enslaved.

97. Ohio, New York, Pennsylvania, and Massachusetts had all adopted anti-kidnapping legislation dating back to the early nineteenth century. See Morris, Free Men All, 28; and Middleton, Stephen, The Black Laws: Race and the Legal Process in Early Ohio (Athens: Ohio University Press, 2005)Google Scholar, 164.

98. See, Middleton, The Black Laws, 175, 211–13.

99. Cf. Prigg, 668–74 (McLean J, dissenting). In his dissent in Prigg, McLean argued that Pennsylvania's personal liberty law, which protected black residents from kidnapping, was a logical extension of the Northern presumption of freedom.

100. House Journal, 31st Cong., 1st Sess., 1452 (1850).

101. See, for example, Campbell, The Slave Catchers, 49–55.

102. Ibid.

103. Ibid., 77. The small Free Soil Party also obviously opposed the law.

104. See, for example, Baxter, Maurice G., One and Inseparable: Daniel Webster and the Union (Cambridge: Belknap Press, 1984)Google Scholar, 427, 484; and Remini, Robert V., Daniel Webster: The Man and His Time (New York: W.W. Norton & Co., 1997)Google Scholar, 697, 706–7.

105. Campbell, The Slave Catchers, 49, 66. See also, for example “The Fugitive Slave Case,” The Cincinnati Daily Times, August 18, 1853 (“The feeling among our citizens generally, is that in such cases the law should be obeyed, however much the system of slavery is to be deprecated.”).

106. Letter from Daniel Webster to the Citizens of Newburyport, dated May 15, 1850, in Webster, Daniel, The Writings and Speeches of Daniel Webster, Vol. 12 (Boston, Little, Brown & Co., 1903), 235–37Google Scholar. Webster also called the necessity of any fugitive slave law “a misfortune and an evil,” suggesting that he supported the fugitive act only as a means to appease the South.

107. Campbell, The Slave Catchers, 69–71 (collecting sermons on the Fugitive Slave Act). A second major argument used by the clergy was that disobedience to the Fugitive Slave Act would undermine respect for all laws.

108. Ibid., 71–75. At such meetings, prominent politicians and lawyers spoke in favor of the act in both moral and constitutional terms. Future Supreme Court Justice Benjamin Robbins Curtis, for example, defended the act at a Union meeting in Boston and argued that if the law's detractors were successful, “the end [is] that the government must be destroyed.” Curtis, Benjamin, A Memoir of Benjamin Robbins Curtis, Vol. 1 (Boston: Little, Brown, 1897), 127–28Google Scholar.

109. In re Booth, 3 Wis. 1 (1854). In re Booth was later appealed to the Supreme Court, resulting in the case of Ableman v. Booth, 62 U.S. 506 (1858).

110. In re Booth, 30.

111. Ibid., 1–2.

112. Ex parte Bushnell, 9 Ohio St. 77, (1859), 184–85.

113. See for example, Cover, Justice Accused, 189–90.

114. See Schmitt, Jeffrey, “Rethinking Ableman v. Booth and States' Rights in Wisconsin” Virginia Law Review 93 (2007): 1315–16Google Scholar, 1330–31, 1335. Justice Smith argued that no “one department of the government is constituted the final and exclusive judge of its own delegated powers,” and therefore “every State officer . . . is bound to provide for, and aid in their enforcement, according to the true intent and meaning of the Constitution.” In re Booth, 23–24, 34 (Smith, J, concurring). The Ohio dissenters made similar arguments. See Ex parte Bushnell, 184–85.

115. Chief Justice Whiton asserted that, because of the differences between the fugitive acts, “[i]t can hardly be claimed, we think, that any adjudication upon the act of 1793 could decide all the questions involved in the act of 1850.” In re Booth, 29. He argued that, in Prigg, “nothing was said in relation to the powers of commissioners, for those officers did not exist at the time when the act of congress was passed,” and “the question of trial by jury to determine the facts of the case, was not raised by the record and was not discussed by the court in giving its opinion.”

116. Justices McLean, Grier, and Nelson had already upheld the law while riding circuit, and Justice Curtis had also already made his views public. See U.S. v. Hanway, 26 F. Cas. 105 (1851), 124 (Grier, J); In re Charge to the Jury, 1010 (Nelson, J); Miller v. McQuerry, 339 (McLean, J); and “The Constitutionality of the Fugitive Slave Law,” Boston Daily Advertiser, November 19, 1850 (printing a speech made by Justice Curtis).

117. See Schmitt, “Rethinking Ableman v. Booth,” 1315–16, 1330–31, 1335.

118. Although Justice Joseph Story is perhaps the most prominent antislavery jurist in United States history, his slavery jurisprudence will not be examined. Story left the Court before the passage of the Fugitive Slave Act of 1850, and the debate over his antislavery credentials is already comparatively well established. See, for example, Holden-Smith, Barbara, “Lords of Lash, Loom, and Law: Justice Story, Slavery, and Prigg v. Pennsylvania” Cornell Law Review 78 (1993): 1086–1151Google Scholar; Finkelman, Paul, “Story Telling on the Supreme Court: Prigg v Pennsylvania and Justice Joseph Story's Judicial Nationalism” Supreme Court Review 1994 (1994): 247–94CrossRefGoogle Scholar.

119. Cover, who uses McLean and Shaw as primary examples throughout Justice Accused, argues that the judges' statements about the risk of disunion were merely an “elevation of the formal stakes.” He claims that antislavery judges, after having already decided to uphold the act because of legal considerations, made their decisions easier to live with by unconsciously exaggerating the importance of the formal values at stake. See Cover, Justice Accused, 238–56. In contrast, this article argues that these statements instead reveal a powerful influence on the judges' decisions.

120. See, for example, Finkelman, Paul, “John McLean: Moderate Abolitionist and Supreme Court Politician” Vanderbilt Law Review 520 (2009): 540Google Scholar.

121. Weisenburger, Francis P., The Life of John McLean: A Politician on the United States Supreme Court (Columbus, OH: The Ohio State University Press, 1937), 188–89Google Scholar; Salmon Chase, Letter to Charles Sumner, April 24, 1847, in The Salmon Chase Papers, Vol. 2 Niven, John (Kent, OH: The Kent State University Press, 1994)Google Scholar, 149.

122. Weisenburger, The Life of John McLean, 122–23.

123. Finkelman, Paul, “John McLean,” in Biographical Encyclopedia of the Supreme Court: The Lives and Legal Philosophies of the Justices, ed. Urofsky, Melvin I. (Washington, D.C.: CQ Press, 2006)Google Scholar, 351 (quoting Chase); see also Chase, Letter to Charles Sumner, 149 (“his sympathies are with the enslaved”).

124. Pollack, Ervin H., ed., Ohio Unreported Judicial Decisions Prior to 1823 (Indianapolis: Allen Smith Company, 1952)Google Scholar, 133, 135, 140–41. McLean expressly reserved the issues of slaves brought into Ohio while in transit to a slave state and slaves sent to Ohio on a mere errand, 140.

125. Dred Scott, 529 (McLean, dissenting).

126. Prigg, 658 (McLean, dissenting).

127. Ibid., 669.

128. Ibid., 666–74.

129. Norris v. Newton, 18 F. Cass. 322 (1850); Ray v. Donnell, 20 F. Cass. 325 (1849); Giltner v. Gorham, 10 F. Cass. 424 (1848); Vaughan v. Williams, 28 F. Cass. 1115 (1845); and Jones v. VanZandt, 13 F. Cass. 1047 (1843).

130. Miller, 17 F. Cass. 335 (1853).

131. Ibid., 335, 337, 339; accord “The Fugitive Slave Case,” Cincinnati Daily Enquirer (August 18, 1853) (summarizing several of counsels' arguments); “A Fugitive Precedent,” The Columbian Great West (Cincinnati) August 27, 1853 (same); “Fugitive Slave Case,” Cincinnati Daily Times, August 17, 1853 (“The usual Constitutional objections to the law were urged with clearness and ability.”).

132. Miller, 337–40.

133. See above notes 38, 50.

134. See Cover, Justice Accused, 243–49. Finkelman goes so far as claim that McLean “support[ed] freedom where he could” and “used all the tools available to him to challenge slavery.” Finkelman, “John McLean,” 540–41, 550–52.

135. McLean declared that “[i]t is for the people . . . to consider the laws of nature, and the immutable principles of right. This is a field which judges cannot explore. . . . They look to the law, and to the law only.” Miller, 339.

136. Miller, 339.

137. Ray, 329.

138. See Vaughan, 1116; Giltner, 432.

139. See, for example, Miller, 338.

140. See, for example, Fehrenbacher, Slaveholding Republic, 244.

141. See Fehrenbacher, Slaveholding Republic, 244; Finkelman, Paul, Slavery and the Founders: Race and Liberty in the Age of Jefferson (New York: M.E. Sharpe 1996) 32, 82–83Google Scholar. The only substantive objection given to the clause at the convention was made by James Wilson of Pennsylvania, who protested that it would “oblige the Executive of the State to do it [return fugitive slaves], at the public expense.” Farrand, Max, ed., The Records of the Federal Convention of 1787, Vol. 2, Rev. ed. (New Haven: Yale University Press, 1966), 443Google Scholar. Moreover, the clause was only mentioned in passing by Southern supporters of the Constitution. See ibid., Vol. 3, 83–85 (North Carolina Delegates to Governor Caswell), 252–55 (Charles Cotesworth Pinckney: Speech in South Carolina House of Representatives), 325 (Debate in the Virginia Convention).

142. Finkelman, Slavery and the Founders, 82–83.

143. Cf. Fehrenbacher, Slaveholding Republic, 244.

144. The following discussion relies on: John McLean, Letter to Reverend Jona Ward, November 10, 1850, John McLean Papers, Folder 17, University of Virginia Library, Charlottesville, Virginia.

145. Although Reverend Ward focused on biblical arguments, McLean responded with predominately moral and pragmatic arguments.

146. This especially seems to undermine Cover's argument that McLean's talk of disunion was an ex post elevation of the stakes meant to justify a decision he had already made. See above note 119.

147. Norris, 18 F. Cas. 322 (C.C.D. Ind. 1850).

148. Ibid., 322–24.

149. Ibid.

150. See Finkelman, “Fugitive Slaves,” 108.

151. Norris, 325.

152. Ibid., 325.

153. See, Thomas M. Cooley, Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown & Co., 1868), 408–10; Ex Parte Kellogg, 6 Vt. 509 (1834), 509; Edgerton v. Hart, 8 Vt. 207 (1836), 207; Taylor v. Moffatt, 2 Blackford 305 (Ind.) 306; and Currie v. Henry, 2 Johns. 433 (N.Y. Sup. 1807), 433.

154. Norris, 324–25.

155. Finkelman, “Fugitive Slaves,” 100 n.49.

156. Finkelman, Paul, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981), 9–19Google Scholar.

157. See The South Bend Fugitive Slave Case, Involving the Right to Habeas Corpus (New York: Anti-Slavery Office, 1851) 7Google Scholar; and History of St. Joseph County (Chicago: Chas. C. Chapman & Co., 1880)Google Scholar, 618.

158. See Norris, 325–26; Finkelman, “Fugitive Slaves,” 114. For example, McLean stated that there was “no express evidence” that Norris had given the Powells permission to travel to Indiana and that Norris's alleged admissions were “disproved by persons who were present, and who give an entirely different construction to the words of the plaintiff.”

159. Prigg, 613.

160. Norris and his companions allegedly broke into the Powells' residence and violently seized and bound them at gunpoint while armed men prevented other residents from leaving the house to raise an alarm. The South Bend Fugitive Slave Case, 1; Finkelman, “Fugitive Slaves,” 108.

161. See Finkelman, “Fugitive Slaves,” 101.

162. Finkelman, “Fugitive Slaves,” 115. Finkelman, however, agrees that McLean “virtually directed the jury to return a verdict for the plaintiff” in a case that could have been decided for either party based on factual and procedural issues. Ibid., 116.

163. Weisenburger, The Life of John McLean, 80.

164. Ibid., 123–38.

165. Campbell, The Slave Catchers, 76–77.

166. Weisenburger, The Life of John McLean, 144–52.

167. Campbell, The Slave Catchers, 94.

168. Ibid., 189.

169. I thank Michael Klarman for this point.

170. See above notes 126–128.

171. Prigg, 663.

172. Ibid., 665.

173. Donald Mackintosh, Letter to John McLean, February 8, 1850, John McLean Papers, Folder 17, University of Virginia Library, Charlottesville, Virginia.

174. John McLean, Letter to Donald Mackintosh, November, 10, 1850, John McLean Papers, Folder 17, University of Virginia Library, Charlottesville, Virginia.

175. See Levy, Leonard W., The Law of the Commonwealth and Chief Justice Shaw (Cambridge: Harvard University Press, 1957)Google Scholar; and Adlow, Elijah, The Genius of Lemuel Shaw: Expounder of the Common Law (Boston: Massachusetts Bar Association, 1962)Google Scholar.

176. Commonwealth v. Aves, 35 Mass. 193 (1836), 207, 217.

177. Ibid., 217.

178. Shaw, Lemuel, “Slavery and the Missouri Question,” The North American Review (Boston, January 1820), 143–44Google Scholar.

179. Levy, The Law of the Commonwealth, 60, 70. Shaw first upheld the attempted rendition of George Latimer under the Fugitive Slave Act of 1793. In two habeas corpus hearings, Shaw returned Latimer to the custody of his master, ruling that he could be held without a warrant or evidence of his status as a slave for a reasonable period of time and that the Massachusetts Personal Liberty Law of 1837, which guaranteed a right to a trial by jury, was unconstitutional under Prigg. Ibid., 78–82. In Sims' Case, 61 Mass. 285 (1851), Shaw upheld the constitutionality of the Fugitive Slave Act of 1850 on a writ of habeas corpus, ruling that Congress had power to pass legislation on the subject of fugitive slaves and that the power given to commissioners did not violate Article III of the Constitution.

180. Levy, The Law of the Commonwealth, 72.

181. Levy, The Law of the Commonwealth, 91. This is as close as Levy comes to addressing the issue. Levy's biography was published well before Cover's book, and therefore before the conventional view emerged.

182. Sims' Case, 661 Mass. 285 (1851).

183. Ibid., 318.

184. See above notes 139–43 and surrounding text.

185. Shaw, “Slavery and the Missouri Question,” 137, 138. He further stated: “In states where slavery has long continued and extensively prevailed, a sudden, violent, or general emancipation, would be productive of greater social evils than the continuance of slavery. It would shake if not subvert the foundations of society.” Ibid., 143.

186. Ibid.

187. “Address to the Citizens of Massachusetts,” in Curtis, A Memoir of Benjamin Robbins Curtis, 332 (emphasis removed).

188. Adams, Charles Francis, Richard Henry Dana: A Biography, Vol. 1 (Boston and New York: Houghton, Mifflin & Co., 1890), 178–80Google Scholar.

189. Ibid., 180; Lucid, Robert F., ed., The Journal of Richard Henry Dana, Jr., Vol. 2 (Cambridge: The Belknap Press of the Harvard University Press, 1968)Google Scholar, 411.

190. Adams, Richard Henry Dana, 181; Lucid, Journal of Richard Henry Dana, 411.

191. Ibid.

192. Ibid.

193. Historian Gary Collison likewise concludes that “the real objection was Shaw's unwillingness to interfere. Perhaps Shaw saw himself as helping Webster to the presidency.” Collison, Gary, Shadrach Minkins: From Fugitive Slave to Citizen (Cambridge: Harvard University Press, 1997)Google Scholar, 120.

194. See Klarman, Michael, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 42–43Google Scholar.

195. Adams, Richard Henry Dana, 183–84.

196. Levy, The Law of the Commonwealth, 91.

197. Cong. Globe, 31st Cong., 1st Sess. 476 (1850).

198. Ibid., 481.

199. Ibid.

200. See “The Constitutionality of the Fugitive Slave Law,” Boston Daily Advertiser, November 19, 1850; Streichler, Justice Curtis in the Civil War Era, 34; Curtis, A Memoir of Benjamin Robbins Curtis, Vol. 1, 122, 132–36.