"A war between officers": The enforcement of slavery in the Northern United States, and of the republic for which it stands, before the Civil War

Studies in American Political Development

Volumn 12, Issue 2, 1998, Pages 343-382

  Orren, Karen ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0032271148     PISSN: 0898588X     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0898588x98001564     Document Type: Article

References (134)

1. 9 Cal. 147 (1858). A full narrative of the case is in Paul Finkelman, "The Law of Slavery and Freedom in California, 1848-1860," California Western Law Review 17 (1981): 437-464.
2. 9 Cal. 147 (1858). A full narrative of the case is in Paul Finkelman, "The Law of Slavery and Freedom in California, 1848-1860," California Western Law Review 17 (1981): 437-464.
3. Philip S. Paludan, A Covenant With Death: The Constitution, Law, and Equality in the Civil War (Urbana: University of Illinois Press, 1975).
4. William M. Wiecek, The Sources of Antislavery Constitutionalism, 1760-1848 (Ithaca: Cornell University Press, 1977).
5. Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780-1861 (Baltimore: Johns Hopkins University Press, 1974); Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981).
6. Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780-1861 (Baltimore: Johns Hopkins University Press, 1974); Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981).
7. Arthur Bestor, "The American Civil War as a Constitutional Crisis," American Historical Review 69 (1964): 327-352.
8. Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975).
9. Mark V. Tushnet, The American Law of Slavery, 1810-1860: Considerations of Humanity and Interest (Princeton, N.J.: Princeton University Press, 1981). Also see Reuel E. Schiller, "Note: Conflicting Obligations: Slave Law and the Late Antebellum North Carolina Supreme Court," Virginia Law Review 78 (1992): 1207-1251.
10. Mark V. Tushnet, The American Law of Slavery, 1810-1860: Considerations of Humanity and Interest (Princeton, N.J.: Princeton University Press, 1981). Also see Reuel E. Schiller, "Note: Conflicting Obligations: Slave Law and the Late Antebellum North Carolina Supreme Court," Virginia Law Review 78 (1992): 1207-1251.
11. Ex parte Jenkins, 2 Wall Jr. (1854), 521.
12. R. Kent Newmyer, Supreme Court Justice Joseph Story, Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985), 372.
13. This quote is from Morris, Free Men All, 200.
14. Governor of Georgia v. Madrazo, 26 U.S. 110 (1828), at 123-24.
15. Osborn v. Bank of the United States, 22 U.S. 738 (1824).
16. Mandamus anciently issued only from King's bench; in the United States, it issued only from the U.S. Supreme Court and the Washington, D.C., district court.
17. The report that emerged from the Senate Judiciary Committee on the bill that eventually became the Fugitive Slave Act of 1850 provided that masters might take a fugitive slave before any commissioner, court clerk, marshal, postmaster, or collector of customs, which officer, upon an offering of satisfactory proof would issue a certificate enabling the master to take the fugitive back to the state from which he or she had fled. In other words, all of these officers were assigned "judicial" duties under the act.
18. South v. Maryland, 59 U.S. 396 (1855).
19. Rogers v. Marshal, 68 U.S. 644 (1863); William L. Murfree, A Treatise on the Law of Sheriffs, 2d ed., (St. Louis: Gilbert, 1890), 59a-62a.
20. Rogers v. Marshal, 68 U.S. 644 (1863); William L. Murfree, A Treatise on the Law of Sheriffs, 2d ed., (St. Louis: Gilbert, 1890), 59a-62a.
21. See Houston v. Moore, 18 U.S. 1 (1820).
22. Charles Warren, "Federal Criminal Laws and the State Courts," Harvard Law Review 38: 545-598 (1925); 552-54, 570-72.
23. See John T. Noonan, Jr. The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (Berkeley: University of California Press, 1977), 78, 121.
24. Marshals also had authority to raise a posse comitatus, if necessary by command, to counter any resistance. The appointment of deputies, however, seems not to have made the system as a whole significantly more orderly. One Boston commentator in the 1850s described the local federal posse as "a gang of about one-hundred and twenty men, the lowest villains in the community, keepers of brothels, bullies, blacklegs, convicts." See Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw (Cambridge, Mass.: Harvard University Press, 1957), 105.
25. Ex Parte Hennen, 13 Pet. 230 (1839).
26. 15 Peters 449 (1841); 485.
27. When, for example, the New York district court was petitioned to rectify a decision of its appointed commissioner who had denied the act applied to white apprentices the judge refused: No provision is made in that act, or in any other, subjecting his proceedings to the control or review of this court, nor are his functions declared to be subordinate to the authority of any other tribunal. The court, in making the appointment of commissioners, fulfills an agency imposed on it by congress, and no more acquires thereby a supervisory authority over him or his proceedings in his office, than the president or the senate has over judges appointed by them. (Ex Parte Van Orden, 28 Fed. Cas. 1060 [1854])
28. For a vivid portrayal of this situation, and of the terraced authority of national government administration generally in this period, viewed through the eyes of its chief law enforcement officer, see Caleb Cushing, "Office and Duties of Attorney General," American Law Register (1856): 65-94.
29. Runaways & Petioners for Freedom, 21 Fed. Cas. 1 (1834).
30. In New York during this period, the marshal's position was described by a leading politician as follows: a very genteel office, and the duties are nearly all discharged by a deputy. The profits have been as high as eighteen thousand dollars. . . . If the fees should not be reduced, this is the most desirable office in the city. (William L. Stone to General Solomon Van Rensselaer, quoted in Rita W. Cooley, "The Office of United States Marshal," Western Political Quarterly 12 (1959): part 1, 123-140.
31. Levy, The Law of the Commonwealth and Chief Justice Shaw, 78-85.
32. Homer Cummings and Carl McFarland, Federal Justice; Chapters in the History of Justice and the Federal Executive (New York: Macmillan, 1937), 182.
33. Skinner against Fleet, 14 Johns 263 (1817), 275.
34. Worthington v. Preston, 30 F. Cas. 645 (1824).
35. Jack v. Martin, Ct. Err., 511 (N.Y., 1835), 528.
36. U.S. v. Robert Morris, 1 Curtis C.C. 23 (1851), 53.
37. Benjamin R. Curtis, Jr., A Memoir of Benjamin Robbins Curtis, 2 vols. (1879; New York: Da Capo Press, 1970), 1: 208.
38. James Russell Lowell, Political Essays (Boston: Houghton, Mifflin and Company, 1904), 169.
39. Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law (New York: Norton, 1972), 207.
40. See for example, Arthur Bester, "State Sovereignty and Slavery: A Reinterpretation of Proslavery Constitutional Doctrine, 1846-1860," Journal of the Illinois State Historical Society 54 (1961): 117-180.
41. 18 U.S. 1 (1820).
42. 41 U.S. 539 (1842); 593, 631, 628.
43. Ibid., 664.
44. Ibid., 630.
45. Ibid., 618.
46. Ibid., 656.
47. Ibid., 634-35.
48. Ibid., 622.
49. 62 U.S. 506 (1859); at 521-2, 517-19.
50. Bestor, "State Sovereignty," 166, A fascinating study of Dred Scott v. Sandford (19 How. 393 [1857]) that treats what I term relations among officers within a layering of "wholes and parts" in Justice Marshall's jurisprudence - a jurisprudence that came to a crisis in that case - is Robert Meister, "The Logic and legacy of Dred Scott: Marshall, Taney, and the Sublimation of Republican Thought," in Studies in American Political Development 3 (1989): 199-260.
51. Bestor, "State Sovereignty," 166, A fascinating study of Dred Scott v. Sandford (19 How. 393 [1857]) that treats what I term relations among officers within a layering of "wholes and parts" in Justice Marshall's jurisprudence - a jurisprudence that came to a crisis in that case - is Robert Meister, "The Logic and legacy of Dred Scott: Marshall, Taney, and the Sublimation of Republican Thought," in Studies in American Political Development 3 (1989): 199-260.
52. Unconstitutionality of the Fugitive Slave Act; Decisions of the Supreme Court of Wisconsin in the Cases of Booth and Rycraft (Milwaukee: Rufus King & Co., 1855), 195. (In re Booth and Rycraft.) This book is a compilation of decisions found in 3 Wisc. 1; 145; 179 (1854.)
53. Ibid., 23. (In re Sherman M. Booth).
54. Ibid.
55. Ibid., 86-87. (Crawford, J., dissenting.)
56. Ibid., 207 (note.) (In re Booth and Rycraft.)
57. Ibid., 21. (In re Sherman M. Booth).
58. Ibid., 11.
59. Ibid., 194 (In re Booth & Rycraft).
60. Ibid., 199, 201.
61. 62 U.S. 506; 525.
62. Unconstitutionality of the Fugitive Slave Acts, 35. (In re Sherman M. Booth).
63. Article IV, Section 2, 1. reads, "A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." The 1793 act provided, "It shall be the duty of the Executive authority of the state or Territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the Executive autority making such demands, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered, to such agent when he shall appear." (Statutes at L., 302, sec. 1)
64. 65 U.S. 66; 82.
65. Ibid., 85-6.
66. Ibid., 106-8.
67. See Evan Caminker, "State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?" Columbia Law Review 95 (1995): 1001-1089; at 1046. The Supreme Court held that Congress has the power to compel governors to deliver fugitives from justice upon proper requests in Puerto Rico v. Branstad, 483 U.S. 219 (1987), 228-29. The Rehnquist Court in 1997 held that Congress could not, under the Brady Handgun Violence Prevention Act, require local law enforcement officers to do background checks. Printz v. United States, 117 S. Ct. 430 (1996).
68. See Evan Caminker, "State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?" Columbia Law Review 95 (1995): 1001-1089; at 1046. The Supreme Court held that Congress has the power to compel governors to deliver fugitives from justice upon proper requests in Puerto Rico v. Branstad, 483 U.S. 219 (1987), 228-29. The Rehnquist Court in 1997 held that Congress could not, under the Brady Handgun Violence Prevention Act, require local law enforcement officers to do background checks. Printz v. United States, 117 S. Ct. 430 (1996).
69. See Evan Caminker, "State Sovereignty and Subordinacy: May Congress Commandeer State Officers to Implement Federal Law?" Columbia Law Review 95 (1995): 1001-1089; at 1046. The Supreme Court held that Congress has the power to compel governors to deliver fugitives from justice upon proper requests in Puerto Rico v. Branstad, 483 U.S. 219 (1987), 228-29. The Rehnquist Court in 1997 held that Congress could not, under the Brady Handgun Violence Prevention Act, require local law enforcement officers to do background checks. Printz v. United States, 117 S. Ct. 430 (1996).
70. This distinction is discussed in James Endell Tyler, Oaths; Their Origin, Nature, and History (London: John W. Parker, 1836).
71. When constitutional framers spoke in their debates of relying local officeholders to enforce federal laws - as Hamilton did, for example, in Federalist 15 - they meant this as an inducement to union; given the payment of fees, administering federal law would presumably have been profitable and thus not the deterrent that forcible commandeering would certainty have been. For a reading of court powers in harmony with the views here, see Michael G. Collins, "Article III Cases, State Court Duties, and the Madisonian Compromise," 1995 Wisconsin Law Review (1995): 39-197; at 87ff; and passim.
72. See Karen Orren, "The Work of Government: Rediscovering the Discourse of Officeholding in Marbury v. Madison," Studies in American Political Development 8 (1994): 60-82.
73. Wendell Phillips, Review of Lysander Spooner's Essay on the Unconstitutionality of Slavery (1847; New York: Arno Press, 1969), 93. A good summary of the abolitionist position represented by Stewart and Spooner will be found in Jacobus Ten Broek, Equal Under Law (New York: Collier Books, 1965), chap. 3.
74. Wendell Phillips, Review of Lysander Spooner's Essay on the Unconstitutionality of Slavery (1847; New York: Arno Press, 1969), 93. A good summary of the abolitionist position represented by Stewart and Spooner will be found in Jacobus Ten Broek, Equal Under Law (New York: Collier Books, 1965), chap. 3.
75. The argument that common-law statuses were eliminated in law only under the New Deal is the argument in Karen Orren, Belated Feudalism; Labor, the Law, and Liberal Development in the United States (New York: Cambridge University Press, 1991).
76. See Dallin H. Oakes, "Habeas Corpus in the States - 1776-1865," University of Chicago Law Review 32 (1965): 243-288; 256 n.66.
77. A useful chapter on the English background is in William F. Duker, Constitutional History of Habeas Corpus (Westport, Conn.: Greenwood Press, 1980). A good overall treatment from a contemporary perspective is R. J. Sharpe, The Law of Habeas Corpus, 2d ed. (Oxford: Clarendon Press, 1989).
78. A useful chapter on the English background is in William F. Duker, Constitutional History of Habeas Corpus (Westport, Conn.: Greenwood Press, 1980). A good overall treatment from a contemporary perspective is R. J. Sharpe, The Law of Habeas Corpus, 2d ed. (Oxford: Clarendon Press, 1989).
79. Edward Jenks, "The Story of Habeas Corpus," Law Quarterly Review 18 (1902): 64-77. Officers' role in key habeas cases has been remarked upon with regard to state officers; see James S. Liebman, "Apocalypse Next, Time: The Anachronistic Attack on Habeas Corpus/ Direct Review Parity," Columbia Law Review 92 (1992): 1997-2096; 2051. A discussion of habeas in the context of slavery, published after this article was presented, is Marc M. Arkin, "A Ghost at the Banquet: Slavery, Federalism, and Habeas Corpus for State Prisoners, "Tulane Law Review 70: 1-72 (1995).
80. Edward Jenks, "The Story of Habeas Corpus," Law Quarterly Review 18 (1902): 64-77. Officers' role in key habeas cases has been remarked upon with regard to state officers; see James S. Liebman, "Apocalypse Next, Time: The Anachronistic Attack on Habeas Corpus/ Direct Review Parity," Columbia Law Review 92 (1992): 1997-2096; 2051. A discussion of habeas in the context of slavery, published after this article was presented, is Marc M. Arkin, "A Ghost at the Banquet: Slavery, Federalism, and Habeas Corpus for State Prisoners, "Tulane Law Review 70: 1-72 (1995).
81. Edward Jenks, "The Story of Habeas Corpus," Law Quarterly Review 18 (1902): 64-77. Officers' role in key habeas cases has been remarked upon with regard to state officers; see James S. Liebman, "Apocalypse Next, Time: The Anachronistic Attack on Habeas Corpus/ Direct Review Parity," Columbia Law Review 92 (1992): 1997-2096; 2051. A discussion of habeas in the context of slavery, published after this article was presented, is Marc M. Arkin, "A Ghost at the Banquet: Slavery, Federalism, and Habeas Corpus for State Prisoners, "Tulane Law Review 70: 1-72 (1995).
82. 3 Peters 193 (1830).
83. The statute provided that the writ might issue in "all cases" of prisoners confined "for any act done, or omitted to be done, in pursuance of law of the United States, or any order, process, or decree of any judge or court thereof." This was a change from congressional legislation in 1789 that denied habeas corpus review in federal courts to prisoners held under state law. On the historically vexed question of what the U.S. Constitution provided in the way of habeas review, see Duker, Constitutional History, chap. 3.
84. These adhered to officers' duties that ranged from guarding a Supreme Court Justice to collecting taxes. In re Neagle, 135 U.S. 1 (1890); Virginia v. Paul, 148 U.S. 107 (1893); Ohio v. Thomas, 173 U.S. 276 (1898); Boske v. Cunningham, 177 U.S. 459 (1900); Hunter v. Wood, 209 U.S. 205 (1908); Anderson v. Elliot, 101 Fed. 609 (1900); West Virginia v. Laing, 133 Fed. 887 (1904). The leading case on "special circumstances" generally is Ex parte Royall, 117 U.S. 241 (1886).
85. These adhered to officers' duties that ranged from guarding a Supreme Court Justice to collecting taxes. In re Neagle, 135 U.S. 1 (1890); Virginia v. Paul, 148 U.S. 107 (1893); Ohio v. Thomas, 173 U.S. 276 (1898); Boske v. Cunningham, 177 U.S. 459 (1900); Hunter v. Wood, 209 U.S. 205 (1908); Anderson v. Elliot, 101 Fed. 609 (1900); West Virginia v. Laing, 133 Fed. 887 (1904). The leading case on "special circumstances" generally is Ex parte Royall, 117 U.S. 241 (1886).
86. These adhered to officers' duties that ranged from guarding a Supreme Court Justice to collecting taxes. In re Neagle, 135 U.S. 1 (1890); Virginia v. Paul, 148 U.S. 107 (1893); Ohio v. Thomas, 173 U.S. 276 (1898); Boske v. Cunningham, 177 U.S. 459 (1900); Hunter v. Wood, 209 U.S. 205 (1908); Anderson v. Elliot, 101 Fed. 609 (1900); West Virginia v. Laing, 133 Fed. 887 (1904). The leading case on "special circumstances" generally is Ex parte Royall, 117 U.S. 241 (1886).
87. These adhered to officers' duties that ranged from guarding a Supreme Court Justice to collecting taxes. In re Neagle, 135 U.S. 1 (1890); Virginia v. Paul, 148 U.S. 107 (1893); Ohio v. Thomas, 173 U.S. 276 (1898); Boske v. Cunningham, 177 U.S. 459 (1900); Hunter v. Wood, 209 U.S. 205 (1908); Anderson v. Elliot, 101 Fed. 609 (1900); West Virginia v. Laing, 133 Fed. 887 (1904). The leading case on "special circumstances" generally is Ex parte Royall, 117 U.S. 241 (1886).
88. These adhered to officers' duties that ranged from guarding a Supreme Court Justice to collecting taxes. In re Neagle, 135 U.S. 1 (1890); Virginia v. Paul, 148 U.S. 107 (1893); Ohio v. Thomas, 173 U.S. 276 (1898); Boske v. Cunningham, 177 U.S. 459 (1900); Hunter v. Wood, 209 U.S. 205 (1908); Anderson v. Elliot, 101 Fed. 609 (1900); West Virginia v. Laing, 133 Fed. 887 (1904). The leading case on "special circumstances" generally is Ex parte Royall, 117 U.S. 241 (1886).
89. These adhered to officers' duties that ranged from guarding a Supreme Court Justice to collecting taxes. In re Neagle, 135 U.S. 1 (1890); Virginia v. Paul, 148 U.S. 107 (1893); Ohio v. Thomas, 173 U.S. 276 (1898); Boske v. Cunningham, 177 U.S. 459 (1900); Hunter v. Wood, 209 U.S. 205 (1908); Anderson v. Elliot, 101 Fed. 609 (1900); West Virginia v. Laing, 133 Fed. 887 (1904). The leading case on "special circumstances" generally is Ex parte Royall, 117 U.S. 241 (1886).
90. These adhered to officers' duties that ranged from guarding a Supreme Court Justice to collecting taxes. In re Neagle, 135 U.S. 1 (1890); Virginia v. Paul, 148 U.S. 107 (1893); Ohio v. Thomas, 173 U.S. 276 (1898); Boske v. Cunningham, 177 U.S. 459 (1900); Hunter v. Wood, 209 U.S. 205 (1908); Anderson v. Elliot, 101 Fed. 609 (1900); West Virginia v. Laing, 133 Fed. 887 (1904). The leading case on "special circumstances" generally is Ex parte Royall, 117 U.S. 241 (1886).
91. These adhered to officers' duties that ranged from guarding a Supreme Court Justice to collecting taxes. In re Neagle, 135 U.S. 1 (1890); Virginia v. Paul, 148 U.S. 107 (1893); Ohio v. Thomas, 173 U.S. 276 (1898); Boske v. Cunningham, 177 U.S. 459 (1900); Hunter v. Wood, 209 U.S. 205 (1908); Anderson v. Elliot, 101 Fed. 609 (1900); West Virginia v. Laing, 133 Fed. 887 (1904). The leading case on "special circumstances" generally is Ex parte Royall, 117 U.S. 241 (1886).
92. 2 Wall. Jr. 521 (1853), 529, 530.
93. Ibid., 534, 536.
94. Ibid., 542, 543.
95. Ibid., 538, 544, 545.
96. Ibid., 529, 545.
97. Ibid., 526, 524. The procession of legal events did not end here. Nine months later, a motion was made in the Supreme Court of Pennsylvania for an attachment for contempt against the sheriff who had obeyed the Circuit Court's second habeas release without bail. The Penniylvania Court held the sheriff liable, but declined to punish him because his actions were not corrupt or wilfully negligent. Thomas and his friends were left to their private remedy at law. Thomas v. Crossin, 3 American Law Register 207 (1854).
98. See for example, In the Matter of Martin, 2 Paine 348 [no date; Paine reported cases from 1827-1840], where a writ of habeas corpus for a fugitive slave was upheld against a release on a de homine repligiando action, even though the officer issuing the writ may not have had jurisdiction.
99. Indeed in this light, and setting aside officeholders for a moment, passages once rushed over as platitudinous or euphemistic in slavery opinions come into relief, like this one, in Chief Justice Taney's pro-slavery opinion in Strader v. Graham: "Every state has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory." 10 How. 82 (1850), 93.
100. For a case the same year as Ex parte Jenkins, see Miller v. McQuerry, 17 F. Cas. 335 (1853).
101. Rollin C. Hurd, A treatise on the right of personal liberty: and on the writ of habeas corpus and the practice connected with it: with a view of the law of extradition of fugitives (Albany, N.Y.: W. C. Little, 1858), 33-34.
102. Again, the law was arguably more circumspect than with slaveowners: once arrested, a wife would not usually be forced by a court to return to her husband if she could prove the two had earlier agreed to separate; a child would be taken forcibly from its mother only at a judge's discretion. On the latter, see Barry v. Mercein, 46 U.S. 103 (1847). Hurd, A treatise on the right of personal liberty, 59-60.
103. Again, the law was arguably more circumspect than with slaveowners: once arrested, a wife would not usually be forced by a court to return to her husband if she could prove the two had earlier agreed to separate; a child would be taken forcibly from its mother only at a judge's discretion. On the latter, see Barry v. Mercein, 46 U.S. 103 (1847). Hurd, A treatise on the right of personal liberty, 59-60.
104. Johnson v. Tomkins, 13 F. Cas. 840 (1833), 851.
105. Polydore v. Prince, 19 F. Cas. 950 (1837), 956.
106. United States v. Scott, 27 F. Cas. 990 (1851), 991.
107. 13 F. Cas. 840 (1833), 843.
108. Ibid., 844, 851, 845. Similar rhetoric in the master-servant setting is discussed in Orren, Belated Feudalism, chap. 4.
109. Wheeler v. Williamson, 28 F. Cas. 682 (1855); 685, Judge Kane refers to Justice Baldwin's opinion in Johnson v. Tomkins: The dearest interests of life, personal safety, domestic peace, social repose, all that man can value, or that is worth living for, are involved in this principle. The institutions of society would lose more than half their value, and courts of justice become impotent for protection, if the writ of habeas corpus could not compel the truth, full, direct, and unequivocal, in answer to its mandate. It will not do to say to the man, whose wife or whose daughter has been abducted: "I did not abduct her; she is not in my possession; I do not detain her, inasmuch as the assault was made by the hand of my subordinates, and I have forborne to ask where they propose consummating the wrong."
110. An authoritative history of contempt of court quotes the great constitutional historian William Stubbs: "So intimate is the connection of judicature with finance under the Norman kings that we scarcely need the comments of the historians to guide us to the conclusion that it was mainly for the sake of profits that justice was administered at all." (Sir John Fox, The History of Contempt of Court: The Form of Trial and The Mode of Punishment [Oxford: Clarendon Press, 1927], 137.)
111. A good account is Ralph Lowell Eckert, "Antislavery Martyrdom: The Ordeal of Passmore Williamson," Pennsylvania Magazine of History and Biography 100: 521-533 (1976). See, on the petitions, resolutions, visitations, sermons, in Williamson's support, 535-36. In prison, Williamson was nominated by the Republican state party as canal commissioner; despite his name being finally withdrawn, he received 700,000 votes in the September election. In prison Williamson suffered poor health; adding to his hardship, his confinement forced him to be absent from the birth of his third child.
112. Passmore Williamson's Case, 26 Pennsylvania State Reports 9: 22, 19.
113. Ibid., 28, 27, 15, 20.
114. Ibid., 24.
115. Ibid., 30.
116. On this point, see Akhil Reed Amar, "The Bill of Rights and the Fourteenth Amendment," Yale Law Journal 101 (1992): 1193-1283.
117. For an excellent description of antebellum jurisprudence in this regard, and its change after Reconstruction, see Ann Woolhandler, "Demodling Habeas," Stanford Law Review 45 (1993); 575-645.
118. Many of the penalties for civil rights violations were transplanted directly from the Fugitive Slave Act of 1850. See generally, Robert C. Kaczorowski, "The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v. McCrary," Yale Law Journal 98 (1989): 565-594. Trumbell's statement opens Kaczorowski's article.
119. Ex parte Virginia, 100 U.S. 339 (1880), 347-48.
120. Field is quoted at ibid., 360. In Munn v. Illinois, Justice Field remarked: "There is no magic in the language, though used in a constitutional convention, that can change a private business into a public one," 94 U.S. 113 (1877), 138. The faltering step referred to was Barney v. the City of New York, 193 U.S. 430 (1904), in which the Court held that a chief engineer's deviation from a prescribed subway route under Park Avenue was not a state action taking property without due process in violation of the Fourteenth Amendment. In Home Telephone v. Los Angeles, 227 U.S. 278 (1913), the Court resumed its normal path.
121. Field is quoted at ibid., 360. In Munn v. Illinois, Justice Field remarked: "There is no magic in the language, though used in a constitutional convention, that can change a private business into a public one," 94 U.S. 113 (1877), 138. The faltering step referred to was Barney v. the City of New York, 193 U.S. 430 (1904), in which the Court held that a chief engineer's deviation from a prescribed subway route under Park Avenue was not a state action taking property without due process in violation of the Fourteenth Amendment. In Home Telephone v. Los Angeles, 227 U.S. 278 (1913), the Court resumed its normal path.
122. Field is quoted at ibid., 360. In Munn v. Illinois, Justice Field remarked: "There is no magic in the language, though used in a constitutional convention, that can change a private business into a public one," 94 U.S. 113 (1877), 138. The faltering step referred to was Barney v. the City of New York, 193 U.S. 430 (1904), in which the Court held that a chief engineer's deviation from a prescribed subway route under Park Avenue was not a state action taking property without due process in violation of the Fourteenth Amendment. In Home Telephone v. Los Angeles, 227 U.S. 278 (1913), the Court resumed its normal path.
123. On this point, see Karen Orren, "Machine Constitutionalism: The Court, the Republican Party, and the Eleventh Amendment in the Gilded Age," paper presented at the Annual Meetings of the American Political Science Association, Washington, D.C., 1997.
124. Civil Rights Cases, 109 U.S. 3 (1883); Ex parte Siebold, 100 U.S. 371 (1879).
125. Civil Rights Cases, 109 U.S. 3 (1883); Ex parte Siebold, 100 U.S. 371 (1879).
126. 92 U.S. 542 (1876).
127. Ibid., 549.
128. Ibid., 554.
129. Ibid., 559.
130. Ibid., 551-52. Waite gives a second example, the passer of a counterfeit coin. It is arguable that the counterfeiter, if not the passer, can be thought of as an officer faux.
131. Waite's words are at 92 U.S. 542, 551, Marshall's (originally) are at 22 U.S. 1 (1824), 211. An illuminating discussion of Justice Marshall's contributions to constitutional theory is Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven: Yale University Press, 1990). On Gibhon v. Ogden, see 161-69.
132. In a vast legal literature, historically-minded readers might begin with David E. Engdahl, "Immunity and Accountability for Positive Governmental Wrongs," Colorado Law Review 44 (1972): 1-79; and John J. Gibbons, "The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation," Columbia Law Review 83 (1983): 1189-2005.
133. In a vast legal literature, historically-minded readers might begin with David E. Engdahl, "Immunity and Accountability for Positive Governmental Wrongs," Colorado Law Review 44 (1972): 1-79; and John J. Gibbons, "The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation," Columbia Law Review 83 (1983): 1189-2005.
134. City of New York et al. v. Brown et al., 822 F. Supp. 906; upheld, Wisconsin v. City of New York et al., 517 U.S. 1.