The federal Posse Comitatus doctrine: Slavery, compulsion, and statecraft in mid-nineteenth-century America

Law and History Review

Volumn 26, Issue 1, 2008, Pages 1-56

  Rao, Gautham ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 46849104705     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0738248000003552     Document Type: Article

References (466)

1. Joseph R. Nolan and Jacqueline M. Nolan-Haley, ed., Black's Law Dictionary with Pronunciations, 6th ed. (St. Paul: West Publishing Co., 1990), 1162
2. William Blackstone, Commentaries on the Laws of England, vol. 1, Of the Rights of Persons, ed. Stanley N. Katz (1765; Chicago: University of Chicago Press, 1979), 339
3. Henry Potter, The Office and Duty of a Justice of the Peace: And a Guide to Sheriffs, Coroners, Clerks, Constables, and other Civil Officers . . . (Raleigh: J. Gales, 1816), 243-44. Only "clergymen, and sick, lame, or impotent persons," could avoid such service. For all other adults, "freemen or servants" alike, the summons to attend to the posse comitatus was a legally binding command to serve the will of the state
4. The power "to compel the service of the citizenry" was part and parcel of the pervasive "common law vision of a well-regulated society" that dominated state and local governance in nineteenth-century America. William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 57, 42
5. Edward Livingston, A System of Penal Law for the State of Louisiana . . . (Philadelphia: James Kay, 1833), 210. The posse comitatus was the preliminary level of community law enforcement, failing which, the state turned to the militia. Through the posse comitatus, localities called for citizens to be civilians primarily, and law enforcers on occasion, just as, in the words of Associate Justice James McReynolds, state militia requirements called for citizens to be "civilians primarily, soldiers occasionally." Miller v. United States, 307 U.S. 174, 178 (May 15, 1939)
6. Alexis de Tocqueville, Democracy in America, trans. J. P. Mayer (1835, 1840; New York: Perennial Classics, 2000), 95-96
7. Henry David Thoreau, On the Duty of Civil Disobedience (1849; Chicago: Charles H. Kerr Publishing Company, 1989), 5
8. James J. Robbins, ed., Report of the Trial of Castner Hanway for Treason . . . (Philadelphia: King & Baird, 1852), 48
9. For other accounts of the incident, see: Paul Finkelman, "The Treason Trial of Castner Hanway," in American Political Trials, ed. Michael R. Belknap (Westport, Conn.: Greenwood Press, 1994), 79-100
10. Thomas P. Slaughter, Bloody Dawn: The Christiana Riot and Racial Violence in the Antebellum North (New York: Oxford University Press, 1991)
11. The Fugitive Slave Law of 1850, U.S. Statutes at Large 9 (1850): 462, 463 [hereafter, Fugitive Slave Law of 1850]
12. Robbins, Report of the Trial of Castner Hanway, 145-46
13. See Robert H. Wiebe's familiar sketch of nineteenth-century America, The Search for Order, 1877-1920 (New York: Hill & Wang, 1967), xiii-xiv
14. On the rudimentary character of antebellum nationalism, see Melinda Lawson, Patriot Fires: Forging a New American Nationalism in the Civil War North (Lawrence: University Press of Kansas, 2002), 4-7
15. In this sense, the antebellum federal government bore little resemblance to the characteristics of the "modern" state. Writes Max Weber, "Today, however, we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory." In the modern state, "obedience is determined by highly robust motives of fear and hope - fear of the vengeance of magical powers of the power-holder, hope for reward in this world or in the beyond - and besides all this, by interests of the most varied sort." Max Weber, "Politics as a Vocation," in From Max Weber: Essays in Sociology, ed. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1947), 78-79 [emphasis added]
16. See also, Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (New York: Verso Books, 1991)
17. Max Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (Oxford: Oxford University Press, 2003), 6-10
18. John Barton Derby (1829)
19. quoted in Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge: Harvard University Press, 1995), 5
20. Prigg v. Pennsylvania, 41 U.S. 539 at 630-31 (1842)
21. Antebellum federal administrative capacities are discussed in detail in: Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789-1837 (New York: Oxford University Press, 1968)
22. John, Spreading the News
23. Daniel Preston, "Administration and Reform of the U.S. Patent Office, 1790-1836," Journal of the Early Republic 5 (1985): 331-53. The function and significance of federal customs service in antebellum America is the subject of my forthcoming dissertation, "Visible Hands: Customhouses, Law, Capitalism, and the Mercantile State of the Early Republic."
24. Robert J. Brent, quoted in Robbins, ed., Trial of Castner Hanway, 196
25. Fugitive Slave Law of 1850 at 463. Randal v. State, 12 Miss (4 S. & M.) 349 at 351 (1845)
26. See, e.g., Edward S. Corwin, "The Basic Doctrine of American Constitutional Law," Michigan Law Review 12 (1914): 247-76
27. Arthur F. McEvoy, "Freedom of Contract, Labor, and the Administrative State," The State and Freedom of Contract, ed. Harry N. Scheiber (Palo Alto: Stanford University Press, 1998)
28. A similarly formidable literature exists on the administrative power over persons, e.g., John Dickinson, Administrative Justice and the Supremacy of Law in the United States (Cambridge: Harvard University Press, 1927)
29. Ernst Freund, Administrative Powers over Persons and Property: A Comparative Survey (Chicago: University of Chicago Press, 1928)
30. Willard J. Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1967)
31. Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (Cambridge: Harvard University Press, 1992), esp. 213-46
32. Also notable is the sizeable body of scholarship on government regulation of speech in the modern state. See, for instance, Owen M. Fiss, The Irony of Free Speech (Cambridge: Harvard University Press, 1996)
33. On the compass of American social policy in the late nineteenth century, see, e.g., Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Belknap Press of Harvard University Press, 1992)
34. Daniel T. Rodgers, Atlantic Crossings: Social Politics in a Progressive Age (Cambridge: Belknap Press of Harvard University Press, 1998)
35. The federal posse comitatus receives limited attention in the highly developed literature on the Fugitive Slave Law of 1850. Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860 (1968; Chapel Hill: University of North Carolina Press, 1970)
36. Allen Johnson, "The Constitutionality of the Fugitive Slave Acts," Yale Law Journal 31 (1921-1922): 161-82
37. Leonard W. Levy, "Sims' Case: The Fugitive Slave Law in Boston in 1851," Journal of Negro History 35 (1950): 39-74
38. Anthony J. Sebok, "Judging the Fugitive Slave Acts," Yale Law Journal 100 (1991): 1835-54
39. A more comprehensive treatment is Jacobus tenBroek, Equal Under Law (1951; New York: Collier Books, 1965), 57-65
40. There are several studies relating slavery to political development, constitutional law, tax doctrines, and other aspects of federal governance. See Robin Einhorn, American Slavery, American Taxation (Chicago: University of Chicago Press, 2006), esp. 117-250
41. David F. Ericson, "The Federal Government and Slavery: Following the Money Trail," Studies in American Political Development 19 (2005): 105-16
42. Donald E. Fehrenbacher, The Slaveholding Republic: An Account of the United States Government's Relations to Slavery (New York: Oxford University Press, 2001)
43. Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (Armonk, N.Y.: M. E. Sharpe, 1996)
44. Discussions of the antebellum American state suggest that common law rule and party politics produced a nationally decentralized state of "courts and parties." Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (New York: Cambridge University Press, 1982), 23
45. A powerful critique of this perspective is Richard R. John, "Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787-1835," Studies in American Political Development 11 (1997): 347-80
46. State-sponsored forced labor systems figured greatly in pre-capitalist and colonial states. Frederick Cooper, "Conditions Analogous to Slavery: Imperialism and Free Labor Ideology in Africa," Beyond Slavery: Explorations of Race, Labor, and Citizenship in Postemancipatory Societies, ed. Frederick Cooper, Rebecca C. Scott, and Thomas Holt (Chapel Hill: University of North Carolina University Press, 2000), 107-49
47. Michael Mann, The Sources of Social Power, vol. 1, A History of Power from the Beginning to A.D. 1760 (New York: Cambridge University Press, 1986), 130-42
48. Fernand Braudel, Civilization and Capitalism, 15th-18th Century, vol. 2, The Wheels of Commerce, trans. Sian Reynolds (New York: Harper & Row, 1979), 514-19
49. Eric Wolf, Europe and the People Without History (Berkeley: University of California Press, 1982), 24-72
50. In mercantilist Europe, the press gang was perhaps the most prominent - and problematic - mode of state coercion to maximize citizens' labor. Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (New York: Verso, 2003), 67-68
51. Marcus Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700-1750 (New York: Cambridge University Press, 1997), 251-53
52. Military compulsion, discussed in the final section of this essay, has also received historical attention. Meyer Kestnbaum, "Citizen-Soldiers, National Service, and the Mass Army: The Birth of Conscription in Revolutionary Europe and North America," Comparative Study of Conscription in the Armed Forces, ed. Lars Møjset et al. (New York: JAI, 2002), 117-44
53. Emmanuel LeRoy Ladurie and Nicole Benageau, "The Conscripts of 1868," in The Territory of the Historian, ed. Emmanuel Le Roy Ladurie (Hassocks, Sussex: The Harvester Press, 1979), 33-75
54. Rachel Barker, Conscience, Government and War: Conscientious Objectors in Great Britain, 1939-1945 (New York: Routledge & Kegan Paul, 1982)
55. Political scientists and sociologists have also undertaken to determine the significance of compulsion and consent as a fundamental aspect of modernity. See, e.g., Margaret Levi, Consent, Dissent, and Patriotism (New York: Cambridge University Press, 1997)
56. Pierre Birnbaum, "The State and Mobilisation for War," in States and Collective Action, trans. Martin Thom (New York: Cambridge University Press, 1988), 55-66
57. Don Herzog, Happy Slaves: A Critique of Consent Theory (Chicago: University of Chicago Press, 1989)
58. Anthony Giddens, The Nation-State and Violence (Cambridge: Policy Press, 1985)
59. Karl Marx, Max Weber, and Michel Foucault (among others) shared a fascination with the shift from pre-modern forms of direct personal domination to more abstract categories of social domination during modernity. Marx, The German Ideology: Part I, in The Marx-Engels Reader, ed. Robert C. Tucker (New York: W. W. Norton & Co., 1978), 147-200
60. Weber, The Protestant Ethic and the Spirit of Capitalism (New York: Routledge, 1992), 69-92, 160-83
61. Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1992)
62. Edmund S. Morgan, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton & Co., 1975)
63. Paul Finkelman, Sanford Levinson, and Derrick Bell maintain that slavery was central, rather than anomalous, to American legal development. Paul Finkelman, "The Centrality of Slavery in American Legal Development," in Slavery and the Law, ed. Paul Finkelman (Madison: Madison House, 1997), 3-26
64. Sanford Levinson, "Slavery in the Canon of Constitutional Law," Chicago-Kent Law Review 68 (1993): 1087-1111
65. Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (New York: Free Press, 1992). Similarly, in The Slaveholding Republic, Don E. Fehrenbacher rightly suggests that the antebellum polity was defined by the problem of slavery
66. This characteristic of market relations is discussed by Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (1944; Boston: Beacon Press, 2002), 257-68
67. Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998)
68. Notably, Willard Hurst and Joseph Schumpeter argue that law brought similar forces to bear on the market. For Hurst, legal regulation in the nineteenth century generated a "release of energy" that anchored American economic development. In Schumpeter's famous formulation, "creative destruction" worked much the same. Hurst, Law and the Conditions of Freedom, Joseph A. Schumpeter, Capitalism, Socialism, and Democracy (New York: Harper and Brothers, 1947), 81-86
69. William J. Novak, "Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst," Law and History Review 18 (2000): 129
70. Patrick Colquhoun, A Treatise on the Police of the Metropolis . . . (London: J. Mawman, 1800), 389. Riot Act, 1 Geo. 1, stat. 2, c. 5 (1714)
71. quoted in David E. Engdahl, "Soldiers, Riots, and Revolution: The Law and History of Military Troops in Civil Disorders," Iowa Law Review 57 (1971): 16
72. Alan Harding, A Social History of English Law (Gloucester, Mass: Peter Smith, 1973), 60
73. Blackstone, Commentaries, 1:362
74. Anon., "The Office of Lord Lieutenant and His Deputies," Law Magazine & Law Review Quarterly; or Quarterly Journal of Jurisprudence 14, no. 50 (1862-1863): 50
75. Common law decisions restricting the use of military force in civilian law enforcement were especially important to the development of the posse comitatus. Engdahl, "Soldiers, Riots, and Revolution," 8-17
76. In particular, rapid urbanization apparently rendered the posse comitatus increasingly anachronistic in England. Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 (London: Stevens & Sons Limited, 1956), 2:28
77. Harding, Social History of English Law, 270
78. Colquhoun, Treatise on the Police of the Metropolis, 389
79. On the colonists' propensity to riot, see Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776 (1972; New York: W. W. Norton & Co., 1991), 3-48
80. Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (Chapel Hill: University of North Carolina Press, 2000)
81. Rediker, Between the Devil and the Deep Blue Sea, 205-53
82. Paul A. Gilje, Rioting in America (Bloomington: Indiana University Press, 1996), 12-59
83. For a summary of the different layers of governance in colonial America, see, among others, Bernard Bailyn, Origins of American Politics (New York: Vintage Books, 1969)
84. Jack P. Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 (Athens: University of Georgia Press, 1986)
85. Maier, From Resistance to Revolution, 16-17. Bradley Chapin, Criminal Justice in Colonial America, 1606-1660 (Athens: University of Georgia Press, 1983), 31, 96
86. Lord North, quoted in John Phillip Reid, In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution (Chapel Hill: University of North Carolina Press, 1981), 231, 232, 230
87. Maier, From Resistance to Revolution, 280
88. Notably, Reid argues that Revolutionary "mobs," such as the group of colonists that participated in "the Boston Massacre," were actually a "constitutional posse Comitatus," which was attempting to police the unconstitutional use of the military against civilians. Reid, In Defiance of the Law, 229, 228
89. Coyles v. Hurtin, 10 Johns. 85 at 89 (1813)
90. Comfort v. Commonwealth, 5 Whart. 437 at 439-40 (1840)
91. See also, Avery v. Seely, 3 Watts & Serg. 494 at 498 (1841)
92. John Stephen, Summary of the Criminal Law (Philadelphia: J. S. Littell, 1840), 29
93. States enjoyed broad latitude to guard the health and safety of their citizens. Wrote Chief Justice John Marshall in Brown v. Maryland, 25 U.S. (12 Wheat.) 425 at 443-44 (1827): "The power to direct the removal of gunpowder is a branch of the police power, which unquestionably remains, and ought to remain, with the States. . . .The removal or destruction of infectious or unsound articles is, undoubtedly, an exercise of that power, and forms an express exception to the prohibition we are considering."
94. On the state police power generally, see Novak, The People's Welfare, 13-17
95. Mordecai M'Kinney, The United States Constitutional Manual . . . (Harrisburg, Penn.: Hickock & Cantine, 1845), 261
96. Nathan Dane, A General Abridgment and Digest of American Law . . . (Boston: Cummings, Hilliard & Co., 1823-1829), 2:352
97. John Milton Niles, The Connecticut Civil Officer: In Three Parts . . . (Hartford, Conn.: Huntington & Hopkins, 1823), 214
98. Isaac Goodwin, New England Sheriff, or, Digest of the Duties of Civil Officers . . . (Worcester: Dorr and Howland, 1830), 76
99. Charles W. Hartshorn, New England Sheriff: Being a Digest of the Laws of Massachusetts Relating to Sheriffs, Jailers, Coroners, and Constables . . . (Worcester: W. Lazell, 1844), 123
100. Baron Robert Henley Eden, A Treatise on the Law of Injunctions (New-York: Gould, Banks, 1839), 197-98
101. John H. B. Latrobe, The Justices' Practice Under the Laws of Maryland: Including the Duties of a Constable . . . (Baltimore: F. Lucas, Jr., 1840), 260-63, 274
102. Reed v. Bias, 8 Watts & Serg., 189 at 191 (1844)
103. See also, Extradition of Fugitives from Service, 6 Op. Atty. Gen. 466 (1854)
104. Edward R. Olcott and Henry M. Spofford, The Louisiana Magistrate (New Orleans: Published for the Authors, 1848), 208
105. Stephen, Summary of the Criminal Law, 46
106. M'Kinney, The United States Constitutional Manual, 260
107. John Frederick Archbold, A Complete Practical Treatise on Criminal Procedure, Pleading, and Evidence . . . (New York: Banks, Gould, 1853), 589, n. 2
108. Archbold claims that this arose from Case of Fries, 9 F. Cas. 826 at 923 (1799)
109. Avery v. Seely at 498
110. Livingston, A System of Penal Law for the State of Louisiana, 210
111. Reed v. Bias at 191
112. Here the development of the posse comitatus paralleled uncompensated takings of property for the public good. Through the damnum absque injuria doctrine, the states immunized themselves from suits pertaining to public works programs and emergency measures. As the U.S. Supreme Court decided in Smith v. Corporation of Washington (1857), when "agents of the public" completed "a duty imposed on them by law," any incidental damage to private citizens deserved no "recompense."
113. As with the posse comitatus, "private interests must yield to public accommodation." Smith v. Corporation of Washington, 61 U.S. (20 How.) 135 at 148 (1857)
114. See also, Novak, People's Welfare, 128-31
115. It should be noted that in addition to its use to police slaves, the posse comitatus was also used in the South for the same purposes - nuisances, riots, etc. - as it was in the North. Howell Cobb, Analysis of the Statutes of Georgia: In General Use, With the Forms and Precedents Necessary to their Practical Operation . . . (New York: E. O. Jenkins, 1846), 475
116. James Smith, Civil Practice in the Court of Pleas and Quarter Sessions of North Carolina: In Ordinary Cases (Raleigh; New York: A. S. Gould, 1846), 10
117. James Russell Lowell, "The Thirty Fugitives and Their Two Hundred Pursuers," Christian Reflector 8 (1845): 118
118. Mary Chesnut, Mary Chesnut's Civil War, ed. C. Vann Woodward (New Haven: Yale University Press, 1981), 407
119. Eugene D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Vintage Books, 1976), 648, 657
120. State v. Mann, 13 N.C. 263 at 266 (1829)
121. Genovese holds out Judge Ruffin's dictum as the exemplar of the southern judicial "logic of slavery" that immunized the master-slave relationship from any interference. Genovese, Roll, Jordan, Roll, 35-36
122. Generally, see, Mark V. Tushnet, Slave Law in the American South: State v. Mann in History and Literature (Lawrence: University Press of Kansas, 2003), 30-37, 139-46
123. "'The legal relation of master and slave' is what the Slave Code declares it to be. And it is nothing else," writes William Goodell in the opening lines of The American Slave Code in Theory and Practice . . . (London: Clarke, Beeton, 1853), 1
124. For general studies on the centrality of slavery to southern private law, see Thomas D. Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill: University of North Carolina University Press, 1996)
125. Tushnet, Slave Law in the American South, esp. 30-37, 139-146
126. Helen Tunnicliff Catterall, ed., Judicial Cases Concerning American Slavery and the Negro, 4 vols. (New York: Negro Universities Press, 1968)
127. Sally M. Hadden, Slave Patrols: Law and Violence in Virginia and the Carolinas (Cambridge: Harvard University Press, 2001), 3, 41-104, esp. 50-60. Even though class conflict between wealthy planters and poor whites much debilitated the slave patrol system, it remained a formidable aspect of the South's slave police
128. John Belton O'Neall, The Negro Law of South Carolina . . . (Columbia, S.C.: J. G. Bowman, 1848), 16, 24, 49
129. Randal v. State at 351 [emphasis added]
130. Thompson v. Young, 30 Miss. 17 at 18 (1855)
131. See also, Morton v. Bradley, 30 Ala. 683 at 693-95 (1857)
132. Baron de Carondolet, Digest of the Laws of Louisiana (June 1, 1795)
133. reprinted in U.S. Congress, Digest of the Laws of Louisiana, 8th Cong., 1st sess., 1803, Serial Set 37 American State Papers, Miscellaneous, 381
134. John Hope Franklin, The Militant South, 1800-1861 (1956; Urbana: University of Illinois Press, 2002), 76
135. See also, Herbert Aptheker, American Negro Slave Revolts (New York: Columbia University Press, 1943)
136. James Kent, Commentaries on American Law (New York: O. Halstead, 1826-1830; New York: Da Capo Press, 1971), 2:254
137. Kent's reference to the slave population as "combustible materials" echoes Chief Justice John Marshall's discussion of the state police power's legitimate reach over gunpowder caches in Brown v. Maryland
138. See above, note 26. Indeed, in Elliot v. Gibson, 49 Ky (10 B. Mon) 438 at 443-44 (1850), the Kentucky Court of Appeals would liken the fugitive slave to "a nuisance injurious to the community."
139. The Virginia Supreme Court, in Baker v. Wise, 57 Va. (16 Gratt.) 139 at 195, 197 (1861), upheld the inspection of coastwise vessels on the grounds that when "any species of property . . . becomes the source of peculiar or extraordinary danger to the community," the state enjoyed the right to "adopt such regulations of police" to prevent "the threatened mischief."
140. The Baker court very consciously cited to the U.S. Supreme Court's decision in Smith v. Turner, 48 U.S. (7 How.) 283 at 319 (1849), a classic discussion of state police power over the supposedly threatening populations of paupers, vagrants, and immigrants
141. Genovese, Roll, Jordan, Roll, 45-47
142. Joel Barlow, "The March of This Government," in Christine M. Lizanich, "'The March of This Government': Joel Barlow's Unwritten History of the United States," William and Mary Quarterly 33 (1976): 325-26. As Barlow suggests, compulsory jury service was considered in a similar light as the posse comitatus
143. See also, Tocqueville, Democracy in America, 729
144. Nancy J. King, "Juror Delinquency in Criminal Trials in America, 1796-1996," Michigan Law Review 94 (1996): 2675-85
145. Kansas City v. Whipple, 136 Mo. 475 at 483 (1896)
146. Edling, A Revolution in Favor of Government. Jack Rakove identifies the point during the Constitutional Convention at which "it was evident that the authority of the national government would depend on judicial enforcement." Crossing this Rubicon meant that the federal judiciary would require its own enforcement mechanisms
147. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1997), 173
148. Dwight F. Henderson, Courts for a New Nation (Washington, D.C.: Public Affairs Press, 1971), 5
149. More generally, see Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1981), 78
150. Alexander Hamilton, Federalist 27, in The Federalist Papers, 203
151. Engdahl, "Soldiers, Riots, and Revolution," 35-42
152. See also Gordon Wood, Creation of the American Republic, 305
153. Alexander Hamilton, Federalist 29, in The Federalist Papers, 209, 183
154. On the significance of public opinion in early national politics, see Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven: Yale University Press, 2001), 90-91
155. The Judiciary Act of 1789, 1 U.S. Statutes at Large 73, 87 (1789)
156. See also, Alfred Conkling, Treatise on the Organization, Jurisdiction, and Practices of the Courts of the United States . . . (Albany: D. Packard & Co., 1830), 110
157. The Process Acts of 1792 and 1828, 1 U.S. Statutes at Large 275 (1792)
158. 3 U.S. Statutes at Large 278 (1828)
159. United States v. Fenwick, 25 F. Cas. 1062 at 1064 (1836)
160. In Beers v. Haughton, 34 U.S. (9 Pet.) 329 at 359-60 (1835), Joseph Story identifies a "doctrine" in which lower federal "courts may, by their rules . . . alter the . . . effect and operation of the process, whether mesne or final, and the modes of proceeding under it."
161. G. Edward White locates the persistence of the early theory of federal judicial power in the Marshall Court's assertions of federal supremacy. See White, "Recovering Coterminous Power Theory: The Lost Dimension of Marshall Court Sovereignty Cases," Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, ed. Maeva Marcus (New York: Oxford University Press, 1982), 66-101
162. Mary K. Bonsteel Tachau, Federal Courts in the Early Republic: Kentucky, 1789-1816 (Princeton: Princeton University Press, 1978), 21, 176
163. See also, Henderson, Courts for a New Nation, 87, 112-13, 119, 120-121
164. Henderson, Congress, Courts, and Criminals: The Development of Federal Criminal Law, 1801-1829 (Westport, Conn.: Greenwood Press, 1985)
165. Kathryn Preyer, "Jurisdiction to Punish: Federal Authority, Federalism and the Common Law of Crimes in the Early Republic," Law and History Review 4 (1986): 223-65
166. William R. Casto, "The Origins of Federal Admiralty Jurisdiction in an Age of Privateers, Smugglers, and Pirates," American Journal of Legal History 37 (1993): 117-57
167. The dominance of state and local common law is the theme of Novak, People's Welfare; Peter Karsten, Heart Versus Head: Judge-Made Law in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1977)
168. Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977)
169. Willard J. Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (Cambridge: The Belknap Press of Harvard University Press, 1964)
170. 1 U.S. Statutes at Large 424 at 425 (1795)
171. See also, the Calling Forth Act of 1792, 1 U.S. Statutes at Large 264 (1792)
172. and the so-called Force Act of 1833, 4 U.S. Statutes at Large 634 (1833)
173. For a summary of this legislation, see Engdahl, "Solders, Riots, and Revolution," 42-49. Dwight Henderson concludes his study of the early federal courts thusly: "If the establishment of the Federal courts had to be justified on the basis of the volume of cases tried, the inferior courts should never have been established. . . . The presence of the federal courts, however, greatly strengthened the national government, particularly through enforcement of the revenue laws."
174. Andrew Jackson to Martin Van Buren, January 13, 1833, quoted in William W. Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816-1836 (New York: Harper & Row, 1965), 279
175. On the federal use of military posses, see Robert W. Coakley, The Role of Federal Military Forces in Domestic Disorders, 1789-1878 (Washington, D.C.: Center for Military History, 1988)
176. Frederick T. Wilson, Federal Aid in Domestic Disturbances, 1787-1903 (New York: Arno Press, 1969)
177. Richard D. Poll and Ralph W. Hansen, "'Buchanan's Blunder': The Utah War, 1857-1858," Military Affairs 25, no. 3, Part 1 (1961): 121-31
178. Charles Fairman, The Law of Martial Rule (Chicago: Callaghan and Company, 1930)
179. Martin v. Mott, 25 U.S. (12 Wheat.) 19 at 27, 20-21 (1827)
180. See also, Houston v. Moore, 18 U.S. (6 Wheat.) 1 at 44 (1820)
181. In 1827, southern political-economist Thomas Cooper, entrenched in the vortex of Nullification politics, declared that even under federal command, state forces "are regarded as the militia of the States severally." Thomas Cooper, Dr. Cooper on the Tariff (Charleston: s.n., 1827), 21
182. Generally, see Akhil Reed Amar, "Of Sovereignty and Federalism," Yale Law Journal 96 (1987): 1495-96
183. David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1798-1888 (Chicago: University of Chicago Press, 1985), 108-10, 185
184. As Michael Mann argues, the use of military force in domestic affairs differentiates "geopolitical wars," waged on the basis of political economy, from "domestic repression," utilized to maintain law and order. For Mann, the latter is the origin of centralized municipal police forces. Mann, Sources of Social Power, vol. 2, The Rise of Classes and Nation-States (New York: Cambridge University Press, 1993), 410-11. Scholars would be well advised to exercise caution in using this characterization of limited federal power over persons as a springboard to theorizing about some antebellum "nightwatchman" state. There is simply too much scholarship (cited in part, above, at notes 9, 14, 26, and 40) on the antebellum state to sustain this characterization. Moreover, my assessment of federal power over persons is derived from a comparison of far more developed powers at the state and local level. Only a conscious disregard for this analytical framework, and the weighty scholarship on American governance, would permit the development of a theory of an antebellum "nightwatchman" state
185. See Richard R. John's introduction to Ruling Passions: Political Economy in Nineteenth-Century America, ed. Richard R. John (University Park: Pennsylvania State University Press, 2006), 1-20
186. Brian Balogh, "The State of the State Among Historians," Social Science History 27 (2003): 455-63
187. Timothy Pickering, quoted in Henderson, Courts for a New Nation, 129
188. Luther v. Borden, 48 U.S. (7 How.) 1 at 75-76 (1849)
189. See Currie, Constitution in the Supreme Court, 252-57
190. Driskell v. Parish, 7 F. Cas. 1095 at 1099 (1849)
191. Samuel A. Cartwright, "Report on the Diseases and Physical Peculiarities of the Negro Race," New Orleans Medical and Surgical Journal 7 (1851): 707
192. That slavery was a creature of positive law received its most familiar elaboration by British jurist Lord Mansfield in Somerset's Case. According to Mansfield, slavery could exist under "only positive law," and, therefore, when a slave moved beyond that positive law's jurisdiction, he ceased to be a slave. Somerset v. Stewart, Lofft 1, 98 Eng. Rep. 499 (1772)
193. On the details and import of Somerset, see George Van Cleve, "Somerset's Case and Its Antecedents in Imperial Perspective," Law and History Review 24 (2006): 601-47
194. William M. Wiecek, "Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo-American World," University of Chicago Law Review 42 (1974-1975): 86-146
195. David Brion Davis, The Problem of Slavery in the Age of Revolution, 1770-1823 (Ithaca: Cornell University Press, 1975; New York: Oxford University Press, 1999), 480-82
196. U.S. Constitution, art. 4, sec. 2 (repealed 1865)
197. On the history of the Fugitive Slave Clause, see Paul Finkelman, "Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism," The Supreme Court Review 1994 (1994): 260-63
198. Fugitive Slave Law of 1793, 1 U.S. Statutes at Large 302 at 302-5 (1793)
199. Finkelman, "The Kidnapping of John Davis and the Adoption of the Fugitive Slave Law of 1793," Journal of Southern History 56 (1990): 410. Slaveholders brought apprehended runaways before any court or "magistrate of a county, city or town corporate, wherein such seizure or
200. Francis Bowen, North American Review Index 71 (1850): 261
201. The same chronology can be found in Charge to Grand Jury - Fugitive Slave Law, 30 F. Cas. 1007 at 1009 (1851)
202. Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United
203. There were abortive attempts in 1796, 1801, 1817, and 1822 to enact new fugitive slave legislation. Joseph F. Nogee, "The Prigg Case and Fugitive Slavery, 1842-1850: Part I," Journal of Negro History 39 (1954): 187
204. In fact, the dozens of northern Personal Liberty Laws included more than prohibitions on state officials from assisting in fugitive slave cases. The laws sometimes went as far as to prohibit the use of state jails for fugitive slaves. More importantly, they also set forth procedures for jury trials for fugitives, rather than the summary process prescribed by the Fugitive Slave Laws. Occasionally, the laws also posited an appellate procedure for fugitive cases. These topics are closely studied in Thomas Morris's masterful, Free Men All: The Personal Liberty Laws of the North, 1780-1861 (Baltimore: Johns Hopkins University Press, 1966)
205. 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., 1847, Serial Set 511, Senate Misdoc. 19, 15
206. Reminisced Virginia's Thomas Bayly in 1850, "The inefficiency of the former law greatly encouraged negroes to attempt an escape." Thomas H. Bayly, Circular of Thomas H. Bayly, of Virginia, To his Constituents (Washington, D.C.: Congressional Globe Office, 1850), 7
207. Prigg v. Pennsylvania at 615
208. Paul Finkelman argues that, "Story's primary goal in Prigg was to enhance the power in the national government," if even "at the expense of civil liberties, fundamental notions of due process, and accepted concepts of antebellum federalism." Finkelman, "Story Telling on the Supreme Court," 249
209. On the transformation of local police regimes in nineteenth-century America, see, e.g., Allen Steinberg, The Transformation of Criminal Justice: Philadelphia, 1800-1880 (Chapel Hill: University of North Carolina Press, 1989)
210. Roger Lane, Policing the City: Boston, 1822-1885 (Cambridge: Harvard University Press, 1967)
211. Eric H. Monkkonen, "History of Urban Police," Crime and Justice 15 (1992): 547-80
212. On the history of the U.S. marshals in the early republic, see Frederick S. Calhoun, The Lawmen: United States Marshals and their Deputies, 1789-1989 (Washington: Smithsonian Institution Press, 1990), 12-15
213. Leonard D. White, The Federalists: A Study in Administrative History (New York: MacMillan Books, 1948), 259, 365, 412
214. William M. Wiecek, "Slavery and Abolition before the United States Supreme Court, 1820-1860," Journal of American History 65 (1978): 73-74
215. Senate Reports, 30th Cong., 1st sess., 1847-48, report no. 143
216. Congressional Globe, 30th Cong., 1st sess., December 10, 1847, 51
217. th article of constitution of United States, 31st Cong., 1st sess., Serial Set 565, Senate Rep. 12, 13, 15 [hereafter, Butler Report]
218. Congressional Globe, 31st Cong., 1st Sess., January 28, 1850, 235, 236
219. Postmasters were the most numerous and most widely dispersed federal officials in antebellum America. Richard R. John, Spreading the News, 112-68
220. Butler Report, 15. Congressional Globe, 31st Cong., 1st sess., January 28, 1850, 233
221. Miller v. Porter, 47 Ky. (8 B. Mon.) 282 at 238 (1847)
222. Elliot v. Gibson at 442
223. As the Kentucky Court of Appeals noted in the latter, the state also offered pecuniary rewards "to induce" northerners "to consult their own interests, regardless of the public sentiment around them." See also, "Act of February 9, 1819," reprinted in Joseph Tate, ed., A Digest of the Laws of Virginia . . . (Richmond: Shepherd and Pollard, 1823), 509
224. Cobb, Inquiry into the Law of Negro Slavery, 224-25
225. Davis, Problem of Slavery in the Age of Revolution, 522
226. The phrase is Massachusetts Chief Justice Lemuel Shaw's, Thomas Sims's Case, 61 Mass. (7 Cush.) 285 at 302-3 (1851)
227. According to Charles A. Lindquist, Congress created the office of U.S. Commissioners in 1812 to accommodate the increasingly variegated roles of state and federal judiciaries. By the 1830s, Lindquist argues, the federal courts had relinquished many of their previous appropriations of state jails and local courts. In this sense, Lindquist suggests, the U.S. Commissioners were federal justices of the peace. In 1842, circuit court commissioners gained "all the powers that any justice of the peace" possessed in the state judiciaries. Charles A. Lindquist, "The Origin and Development of the United States Commissioner System," American Journal of Legal History 14 (1970): 7-9
228. 1 U.S. Statutes at Large 680 (1812)
229. 2 U.S. Statutes at Large 517 (1842)
230. 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, 271
231. Fugitive Slave Law of 1850, 9 U.S. Statutes at Large 462
232. Congressional Globe, 31st Cong., 1st Sess., January 31, 1850, 271
233. Holman Hamilton, Prologue to Conflict: The Crisis and Compromise of 1850 (Lexington: The University Press of Kentucky, 1967), 189
234. On the earlier compromises, see Staughton Lynd, "The Compromise of 1787," Political Science Quarterly 81 (1966): 225-50
235. Howard A. Ohline, "Republicanism and Slavery: Origins of the Three-Fifths Clause in the United States Convention," William and Mary Quarterly 28 (1971): 566-67
236. Adam Rothman, Slave Country: American Expansionism and the Origins of the Deep South (Cambridge: Harvard University Press, 2005), 214-16
237. Henry Clay, Speech to the General Assembly of Kentucky, November 15, 1850, in The Papers of Henry Clay, ed. Melba Porter Hay (Lexington: University Press of Kentucky, 1991), 10:850
238. As Don E. Fehrenbacher notes, during the 1840s, southern political leaders began to look upon the sectional conflict in increasingly constitutional, as opposed to geographical terms. By securing national guarantees and protection for slavery, the South could perform an end-run around previous compromises that limited slavery to the South alone. Fehrenbacher, Slavery, Law, and Politics: The Dred Scott Case in Historical Perspective (New York: Oxford University Press, 1981), 68-69, 84-85
239. Campbell, Store Catchers, 207
240. Jonathan Katz, Resistance at Christiana: The Fugitive Slave Rebellion, Christiana, Pennsylvania, September 11, 1851, A Documentary Account (New York: Thomas Y. Cromwell Company, 1974), 72, 123, 125, 128
241. I have borrowed the section heading from Frederick Cooper, "Conditions Analogous to Slavery," 107-49
242. By the 1840s, abolitionists honed their critique of the slave power on the movement to annex Cuba and extend slavery into the territories. Leonard L. Richards, The Slave Power: The Free North and Southern Domination, 1780-1860 (Baton Rouge: Louisiana State University Press, 2000), 4
243. David Brion Davis, The Slave Power Conspiracy and the Paranoid Style (Baton Rouge: Louisiana State University Press, 1969), 7, 18
244. William Deloss Love, Obedience to Rules - The Duty and its Limitations . . . (New Haven: Storer & Stone, 1851), 13-14
245. Rufus W. Clark, Conscience and Law. A Discours reached in the North Church, Portsmouth, New Hampshire, on Fast Day, April 3, 1851 (Boston: Tappan & Whittemore, 1851), 22 [emphasis added]
246. Horace Mann, Horace Mann's Letters on the Extension of Slavery into California and New Mexico: And on the Duty of Congress to Provide the Trial by Jury for Alleged Fugitive Slaves (Washington, D.C.: Buell & Blanchard, 1850), 5
247. Ezra S. Gannett, A Discourse Preached in the Meetinghouse, in Boston, on Sunday, June 11, 1854 (Boston: Crosby, Nichols & Company, 1854), 19
248. According to A. D. Williams, abolitionists reserved "utter loathing and disgust" for slave-catchers because they unified the most degrading effects of slavery on southern society. A. D. Williams, The Fugitive Slave Law: A Discourse: Delivered in the Free-Will Baptist Meeting House in Pawtucket, Mass., December 8th, 1850 (Providence: I. Amsbury, 1851), 21
249. Through the lens of the North's ascendant free labor ideology, slave-catchers were the polar opposite of the virtuous, ascetic individual "whose work was directly involved in the production of goods." Slavery degraded labor itself, producing not only "the slave's ignorance and lack of incentive," but also an oligarchic planter class and the "laboring white's poverty, degradation, and lack of social mobility." Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (New York: Oxford University Press, 1970), 15, 50
250. As for the classist and nativist criticisms of slave-catchers, consider the following excerpts from Richard Henry Dana's Journal. Slave-catchers were "foreigners," "lasy [sic] hounds . . . lounging all day out of the windows . . . but ready to shoot down good men." These were "such a set of debauched, vulgar, outlawish fellows I never beheld." They were the "lowest villains in the community, keepers of brothels, bullies, blacklegs, convicts, fire-lighters, &c." Richard Henry Dana (June 2, 1854), The Journal of Richard Henry Dana, Jr., ed. Robert F. Lucid (Cambridge: Belknap Press of Harvard University Press, 1968), 2:630, 629
251. Williams, The Fugitive Slave Law: A Discourse, 21
252. Joseph P. Thompson, The Fugitive Slave Law Tried by the Old and New Testaments (1850)
253. cited in Stephen Middleton, "The Fugitive Slave Crisis in Cincinnati, 1850-1860: Resistance, Enforcement, and Black Refugees," Journal of Negro History 72 (1987): 24 [emphasis added]
254. Gannett, A Discourse . . . (Boston: Crosby, Nichols & Company, 1854), 19
255. Anon., Trial of Henry W. Allen, U.S. Deputy Marshal, For Kidnapping with Arguments of Counsel . . . (Syracuse: Power Press of the Daily Journal Office, 1852), 31
256. Edward L. Pierce, Remarks of Edward L. Pierce, Before the Committee of the Legislature of Massachusetts . . . (Boston: Stacy & Richardson, 1861), 31
257. See also, Lysander Spooner, A Defence for Fugitive Slaves, Against the Acts of Congress of February 12, 1793, and September 18, 1850 (Boston: Bela Marsh, 1850), 11
258. Only a year earlier, however, the Treasury Department counted only thirty-three commissioners in this meager "army." Of the thirty-three commissioners in 1860, though, key stops on the Underground Railroad - e.g., Buffalo, Chillicothe, Cleveland, Chicago, and Indianapolis - possessed well over 50 percent. "Commissioners of the United States Courts, 1860," in U.S. Congress, Receipts and expenditures, 36th Cong., 2nd sess., 1860, Serial Set 1096, House Exdoc. 12, 128. Charles Lindquist dates the actual quantitative growth of U.S. Commissioners to Reconstruction. Lindquist, "The Origin and Development of the United States Commissioner System," 8-9
259. Samuel Johnson, The Crisis of Freedom. A Sermon, Preached at the Free Church, in Lynn, On Sunday, June 11, 1854 (Boston: Crosby, Nichols & Co., 1854), 9
260. Robert Rantoul, Jr., "The Fugitive Slave Law," Grand Mass Convention, Lynn, April 3, 1851, in Memoirs, Speeches and Writings of Robert Rantoul, Jr., ed. Luther Hamilton (Boston: John P. Jewett, 1854), 741-42
261. Walt Whitman, "A Boston Ballad" (1854), in Leaves of Grass (1855; New York: Bantam Books, 1983), 214-16
262. Samuel Freeman Clark, Secession, Concession, or Self-Possession: Which? (Boston: Walker, Wise, and Company, 1861), 9
263. According to John Hope Franklin, there was ample southern rhetoric to justify Clark's premonition. Many in the South used the Mexican War to trumpet an ascendant "martial spirit," which culminated in the militarist tenor of secessionist politics. Franklin, The Militant South, 9-10
264. Clark, Conscience and Law, 8, 25
265. Johnson, The Crisis of Freedom, 18
266. Josiah Quincy, Sr., Speech Delivered by Hon. Josiah Quincy, Sr. Before the Whig State Convention, Assembled at the Music Hall, Boston. Aug. 16, 1854 (Boston: John Wilson & Son, 1854), 6
267. Jacob R. Shipherd, ed., History of the Oberlin-Wellington Rescue (New York: Sheldon and Company, 1859), 62
268. William Charles Whitcomb, A Discourse on the Recapture of Fugitive Slaves, Delivered at Stoneham, Mass., November 3, 1850 (Boston: Charles C. P. Moody, 1850), 8
269. Extradition of Fugitives from Service, at 466
270. In April 1851, Justice Samuel Nelson, on circuit duty in New York City, reminded a grand jury that the federal "posse comitatus, or power of the county," was a "duty of the citizens thus called to aid . . . in the execution of the process." Continued Justice Nelson, such power was "essential to enforce obedience." Only with a "strong hand, if necessary," could federal authority subdue "all disaffection, disorder, insubordination, or resistance." Charge to Grand Jury - Fugitive Slave Law, 30 F. Cas. 1007 at 1009, 1011
271. In Ableman v. Booth, as Chief Justice Roger Taney chastised the maverick Wisconsin Supreme Court for nullifying the 1850 law, he noted the marshal's duty to "call to his aid any force that might be necessary to maintain the authority of law against illegal interference."
272. Ableman v. Booth, 62 U.S. (21 How) 506 at 524 (1859)
273. See also, the Eastern District of Pennsylvania District Court case, United States v. Buck, 24 F. Cas. 1289 at 1292 (1860)
274. Charge to Grand Jury - Fugitive Slave Law, 30 F. Cas. 1015 at 1016 (1851)
275. Justus T. Omstead, The Duty of Obedience to Existing Powers and Laws in Civil Government (Muscatine: D. L. Cossitt, 1851), 18
276. Charge to Grand Jury - Fugitive Slave Law, 30 F. Cas. 1007 at 1011 (1851)
277. Theophilus Callicot, Speech of Hon. Theophilus C. Callicot, of Kings, Against the Personal Liberty Bill, In Assembly, March 14, 1860 (Albany: Comstock & Cassidy, 1860), 4
278. Houston v. Moore at 44
279. George F. Kettell, A Sermon on the Duty of Citizens, With Respect to the Fugitive Slave Law (White Plains: Eastern State Journal, 1851), 8
280. Moore v. Illinois, 55 U.S. (14 How.) 13 at 20 (1852)
281. Scott v. Sandford, 60 U.S. 393, 404 at 449 (1856)
282. The concept of national citizenship that emerged from the debate over the federal posse comitatus parallels Howard Schweber's argument that public duties, and not the modern notion of individual rights, underscored the creation of American citizenship. Schweber, The Creation of American Common Law, 1850-1880: Technology, Politics, and the Construction of Citizenship (New York: Cambridge University Press, 2004)
283. Henry Clay, Congressional Globe, 31st Congress, Appendix, February 6, 1850, 122 [emphasis added]
284. Ableman v. Booth at 525
285. See also, United States v. Hanway, 16 F. Cas. 105 at 123 (1851)
286. Oliver v. Kauffman, 8 F. Cas. 657 at 661 (1850) [emphasis added]
287. Lord C. J. Tindal, Charge to the Bristol Grand Jury (1832, 5 C. & P. 262)
288. quoted in Archbold, A Complete Practical Treatise on Criminal Procedure, Pleading, and Evidence . . . , 589, n. 1 [emphasis in original]
289. Smith v. Turner at 470
290. "Police power was the ability of a state or locality to enact and enforce public laws regulating or even destroying private right, interest, liberty, or property for the common good (i.e., for the public safety, comfort, welfare, morals, or health)." Novak, People's Welfare, 13
291. Since about 1870, scholars have debated whether or not the commerce clause of the constitution furnishes the federal government with a federal police power. Paul Fuller, "Is There a Federal Police Power?" Columbia Law Review 4 (1904): 563-88
292. In United States v. DeWitt, 76 U.S. (9 Wall.) 41 (1869)
293. and Hammer v. Dagenhart, 247 U.S. 251 (1918) the Chase and White courts, respectively, struck down the notion of a federal police power built upon the commerce clause
294. Millard Fillmore to Daniel Webster, October 23, 1850; Millard Fillmore to Daniel Webster, October 28, 1850; both in The Papers of Daniel Webster: Correspondence, ed. Charles M. Wiltse et al. (Hanover: Prepared for Dartmouth College by the University Press of New England, 1986), 7:163-64, and 7:172
295. respectively. Story's characterization came in Martin v. Mott at 27, 20-21
296. Lord Mansfield, quoted in Engdahl, "Soldiers, Riots, and Revolution," 34. Martin v. Mott at 27, 20-21 (1827)
297. On the Mansfield Doctrine, see Engdahl, "The New Civil Disobedience Regulations: The Threat of Military Intervention," Indiana Law Journal 49 (1973-1974): 588-97
298. It has recently been suggested that Cushing in fact intended to discard the Mansfield Doctrine. Charles Doyle, "The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law," in The Posse Comitatus Act and Related Matters: Current Issues and Background, ed. Jennifer Elsea and Charles Doyle (Hauppauge, N.Y.: Novinka Books, 2004), 4
299. 6 Op. Atty Gen. 466 (1854)
300. Anon., A Word to the Whigs of Pennsylvania (Philadelphia: s.n., 1851)
301. Charge to Grand Jury - Fugitive Slave Law, 30 F. Cas. 1007 at 1012 (1851)
302. Resolution of the Maryland Legislature, quoted in Brooklyn Eagle, May 28, 1852, 2
303. Charge to Grand Jury - Fugitive Slave Law, 30 F. Cas. 1015 at 1015-16 (1851)
304. Nathaniel Banks, quoted in Brooklyn Eagle, January 9, 1861
305. The Confederacy granted federal marshals "the power to command a posse comitatus in the execution of his duty." An Act to Establish the Judicial Courts of the Confederate States of America, March 16, 1861, The Statutes At Large of the Confederate States of America . . . (Richmond: R. M. Smith, 1864), 76
306. William Whiting, The War Powers of the President . . . , quoted in The Constitution and the Nation: The Civil War and American Constitutionalism, 1830-1890, ed. Christopher Waldrep and Lynne Curry (New York: Peter Lang, 2003), 130
307. On Lincoln's use of metaphors as a war strategy, see James McPherson, "How Lincoln Won the War with Metaphors," in Abraham Lincoln and the Second American Revolution (New York: Oxford University Press, 1990), 93-112
308. James G. Randall, Constitutional Problems Under Lincoln (New York: D. Appleton and Company, 1926)
309. Amicus [pseud.], The Rebel States, the President and Congress: Reconstruction, and the Executive Power of Pardon (New York: E. S. Dodge & Co., 1866)
310. I owe this reading of Lincoln's strategy in part to Jeremi Suri's Comment on the Plenary Session, "The Bush Doctrine: A New Departure in American Foreign Policy?" Policy History Conference, June 1, 2006, Charlottesville, Virginia. To be sure, Lincoln's mass of force was much more an army than a posse comitatus. But conceiving of federal force as the latter did have real consequences in early military policy. Lincoln and his staff initially sought to inspire Southern Unionists to revolt and displace the Confederacy. Like a posse comitatus, this "substantial body of loyal citizens," as Herman Belz phrases it, was expected to aid authorities in upholding federal law. Belz, Reconstructing the Union: Theory and Policy During the Civil War (Ithaca: Cornell University Press, 1969), 135, 44
311. Hickman v. Jones, 76 U.S. (9 Wall.) 197 at 200 (1869)
312. York (pseud.), "Question of Belligerent Rights," New York Times, August 27, 1861, 2
313. After the war, Jacob Thompson again expressed concern that Lincoln's police action strategy minimized the dramatic character of the conflict. If the grand United States military was nothing other than "a huge posse Comitatus," then the "mighty war" appeared to be a mere "tragical farce." Brooklyn Eagle (New York), May 22, 1865, 2
314. In fact, there was plenty of wartime propaganda to go around, especially relating to efforts to vilify the Democratic Party. Frank Freidel, "The Loyal Publication Society: A Pro-Union Propaganda Agency," Mississippi Valley Historical Review 26 (1939): 359-76
315. George Winston Smith, "Broadsides for Freedom: Civil War Propaganda in New England," New England Quarterly 21 (1948), 291-312
316. T. Harry Williams, "Voters in Blue: The Citizen Soldiers of the Civil War," Mississippi Valley Historical Review 31.2 (1944), 187-204
317. Ex Parte Vallandigham, 28 F. Cas. 874 at 922-24 (1863)
318. Driskell v. Parish at 1099
319. In 1863, the New York Times claimed that, "it is absurd to say that there is any locality . . . where this war power might not, if necessary, assert itself. The sole limitation everywhere is the necessity." "War Powers - The Duties of the Executive and of the People," New York Times, June 8, 1863, 4
320. As the war concluded, the Supreme Court curtailed the federal asser-tion of military jurisdiction over citizens. Most notably, in Ex Parle Milligan, the Court held that, even in wartime, civilians charged with crimes must be tried under the civil jurisdiction whenever available. Even so, Justice Davis noted: "But Congress was obliged to enact severe laws to meet the crisis; and as our highest civil duty is to serve our country when in danger, the late war has proved that rigorous laws, when necessary, will be cheerfully obeyed by a patriotic people, struggling to preserve the rich blessings of a free government." Ex Parle Milligan. 71 U.S. (4 Wall.) 2 at 130 (1866) [emphasis added]
321. U.S. Congress, House, Final Report Made to the Secretary of War, by the Provost Marshal General . . ., 39th Cong., 1st sess., 1866, Serial Set 1251, 1251 H.exdoc.1/23, 11
322. 12 U.S. Statutes at Large 731 (March 3, 1863)
323. See James W. Geary, We Need Men: The Union Draft in the Civil War (Dekalb: Northern Illinois University, 1991)
324. By the end of the war, the North had mobilized over two million soldiers. Geary, We Need Men. 81
325. Notably, even the initial, state-operated militia conscriptions were understood in the language of the posse comitatus. Proclaimed the Wisconsin legislature in 1861: "In case a call shall be made by the President of the United States upon this state, to aid in maintaining the union and the supremacy of the laws, or to suppress rebellion or insurrection, or to repel invasion within the United States, the governor is hereby authorized, and it shall be his duty, to take such measures as in his judgment shall provide in the speediest and most efficient manner for responding . . . " Fred Albert Shannon, The Organization and Administration of the Union Army. 1861-1865 (Cleveland: Arthur H. Clark Co., 1928), 1:23
326. James M. McPherson, For Cause and Comrades: Why Men Fought in the Civil War (New York: Oxford University Press, 1997)
327. Mark Snell, Union Soldiers and the Northern Home Front: Wartime Experiences, Postwar Adjustments, ed. Paul A. Cimbala and Randall M. Miller (New York: Fordham University Press, 2002), 69-118, esp. 76-81
328. Kenneth H. Wheeler, "Local Autonomy and Civil War Resistance: Holmes County, Ohio," Civil War History 45 (June 1999): 147-59
329. Michael Les Benedict, The Fruits of Victory: Alternatives in Restoring the Union, 1865-1877 (1975; Lanham, Md.: University Press of America, 1986), 12
330. Geary, We Need Men, 68
331. Iver Bernstein, The New York City Draft Riots: Their Significance for American Society and Politics in the Age of the Civil War (New York: Oxford University Press, 1990). 8
332. Strickland to Colonel Smith, n.d., quoted in Ella Lonn, Desertion During the Civil War (New York: The Century Co., 1928), 86
333. Governor Henry M. Rector, quoted in Shannon, The Organization and Administration of the Union Army, 1:33
334. David Montgomery explains that "the major grievances which sparked labor protest were all related to the growing power and centralization of government," but even despite commonalities with "old-line" Democrats, labor was not necessarily aligned with the Copperheads. Montgomery, Beyond Equality: Labor and the Radical Republicans, 1862-1872 (1967; Urbana: University of Illinois Press, 1981), 102
335. Montgomery, Beyond Equality, 91, 102-5
336. Bernstein, New York City Draft Riots, 111-24
337. James M. McPherson, ed., Anti-Negro Riots in the North, 1863 (New York: Arno Press, 1969), 1-24
338. James Geary cautiously estimates that the majority of draft-evaders (men that "failed to report") were "unskilled workers." Geary, We Need Men, 100
339. According to Eric Foner, the Draft Riots were "a wholesale assault upon all the symbols of the new order being created by the Republican party and the Civil War." Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1988), 32
340. New York Times, July 14, 1863, 4
341. Kneedler v. Lane, 3 Grant 465 at 484-85 (1863)
342. A few months later the court reversed itself and submitted Pennsylvania to the conscription law. Where the Court had previously worried about state capacity, it now framed the conscription question in terms of federal power. It was the federal government's duty "to protect [Pennsylvania] against invasion, and against domestic violence if her posse comitatus fail." Kneedler v. Lane. 3 Grant 523 at 544 (1864)
343. See J. Norman Heath, "Exposing the Second Amendment: Federal Preemption of State Militia Legislation," University of Detroit Mercy Law Review 79 (2001): 54-55
344. On draft resistance in Pennsylvania, see Grace Palladino, Another Civil War: Labor, Capital, and the State in the Anthracite Regions of Pennsylvania. 1840-1868 (Urbana: University of Illinois Press, 1990)
345. Barber v. Irwin, 34 Ga. 27, 37 (1864)
346. The Georgia high court upheld the law, as did its counterparts in six other Confederate states. See William L. Shaw, "The Confederate Conscription and Exemption Acts," American Journal of Legal History 6 (1962): 368-405, esp. 394-96
347. As Paul D. Escott explains, this was the culmination of a lengthy feud between Georgia Governor Joe Brown and C.S.A. President Jefferson Davis. Paul D. Escott, Military Necessity: Civil-Military Relations in the Confederacy (Westport, Conn.: Praeger Security International, 2006), 33-36
348. George Frederickson argues that the southern states' unwillingness to centralize their military resources had dire strategic consequences. Frederickson, "Blue Over Gray," in A Nation Divided: Problems and Issues of the Civil War and Reconstruction, ed. George M. Frederickson (Minneapolis: Burgess Publishing Company, 1975), 69-70
349. John J. Pettus, Governor of Mississippi, "Governor's Message," December 20, 1862, reprinted in Mississippi Legislature, Journal of the House of Representatives of the State of Mississippi, December Session 1862, and November Session of 1863 (Jackson, Miss.: Cooper & Kimball Steam Printers and Binders, 1864), 10
350. Richard F. Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859-1877 (New York: Cambridge University Press, 1990), 135-38
351. See also, Bensel, "Southern Leviathan: The Development of Central State Authority in the Confederate States of America," Studies in American Political Development 2 (1987): 68-136
352. Escott, Military Necessity, 73
353. Mark Neely, Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism (Charlottesville: University of Virginia Press, 1999), 11-28
354. On the fear of "subjugation" at the hands of the North, see Keith S. Bohannon, "'Witness the Redemption of the Army': Reenlistments in the Confederate Army of Tennessee, January-March, 1864," in Inside the Confederate Nation: Essays in Honor of Emory M. Thomas, ed. Lesley J. Gordon and John C. Inscoe (Baton Rouge: Louisiana State University Press, 2005), 113
355. James L. Roark, Masters Without Slaves: Southern Plantations in the Civil War and Reconstruction (New York: W. W. Norton & Co., 1977), 32
356. W. W. Holden, quoted in Carleton Beals, War Within a War: The Confederacy Against Itself (New York: Chilton Books, 1965), 62
357. William G. Brownlow, quoted in Escott, Military Necessity. 87 [emphasis added]
358. Escott, Military Necessity, 84,28
359. The Union also weighed the expediency of a passport system, but ultimately discarded the program due to its apparent unconstitutionality. Geary, We Need Men, 39
360. Confederate States of America, Bureau of Conscription, Circular No. 6 (Columbia, S.C., s.n., 1864), 4, 8
361. It was apparent from the outset that poor white conscripts "were distinctly out of sympathy with the cause of slavery as the foundation stone on which was built the prestige of their proud neighbors of the lowlands. . . ." Lonn, Desertion During the Civil War, 4
362. The Newspaper Man [Louis J. Dupré], Fagots from the Campfire (Washington, D.C.: Emily Thornton Charles & Co., 1881), 92
363. Writes Katherine E. Giuffre, the overseer exemption clause "is considered to be the key factor in turning the mountain counties' [of North Carolina] initial enthusiasm for the war into hostility toward the Confederacy." Giuffre, "First in Flight: Desertion as Politics in the North Carolina Confederate Army," Social Science History 21 (1997): 249
364. According to Steven Hahn, the drain of manpower in the South did indeed have an adverse effect upon the South's slave police. By 1864, the cumulative effect of the Emancipation Proclamation, coupled with "a rebellion of slaves against, the authority of their masters," left "the status quo antebellum . . . beyond resurrection." Hahn, A Nation under Our Feet: Black Political Struggles in the Rural South from Slavery to the Great Migration (Cambridge: Harvard University Press, 2005), 89
365. Governor Henry T. Clark of North Carolina, quoted in Giuffre, "First in Flight," 246
366. Joseph E. Brown, Message of His Excellency Joseph E. Brown, to the Extra Session of the Legislature... (Milledgeville, Ga.: Boughton, Nisbet, Barnes & Moore, 1864), 14
367. See also, Bessie Martin, A Rich Man's War. A Poor Man's Fight: Desertion of Alabama Troops from the Confederate Army (1932; Tuscaloosa: University of Alabama Press, 2003)
368. Lonn, Desertion during the Civil War. 77
369. Daily Bulletin, (n.d.) 1861
370. quoted in Dupré, Fagots from the Campfire, 92
371. Hadden, Slave Patrols, 167-202
372. In fact, the Confederacy had earlier implemented an " impressments" policy that allowed the expropriation of wartime victuals in exchange for future repayment. Planters' discontent with the impressments policy was as vehement as the poor white critique of impressments. Escott, Military Necessity: 29
373. Curtis Arthur Amlund, Federalism in the Southern Confederacy (Washington, D.C.: Public Affairs Press, 1966), 107-9
374. State legislation authorized the impressments of slaves for the construction of wartime public works throughout the war. Earlier national legislation permitted impressments of slaves for ancillary roles in military camps. Bernard H. Nelson, "Confederate Slave Impressment Legislation, 1861-1865," Journal of Negro History 31 (1946): 400
375. Jefferson Davis, Message of November 7, 1864, reprinted in Jefferson Davis, The Rise and Fall of the Confederate Government (New York: Thomas Yoseloff, 1958), 1:515-16
376. Davis, The Rise and Fall of the Confederate Government, 1:515-16
377. 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." James Lindsay Smith, Autobiography of James L. Smith . . . (Norwich: Bulletin Company, 1881), 116
378. Hahn, A Nation under Our Feet, 88-89
379. Charles Sumner, Security and Reconciliation: Propositions and
380. James A. Garfield, quoted in McPherson, Abraham Lincoln and the Second American Revolution, 5
381. "Our grand aim," proclaimed Representative Isaac Newton Arnold of Illinois, is that "the grand edifice of American constitutional government is to rise on a broader, firmer, more solid foundation, the basis of universal liberty." Reconstruction: Liberty the Corner-Stone. and Lincoln the Architect; Speech of Hon. Isaac N. Arnold of Illinois (Washington, D.C.: Lemuel Towers, 1864), 3
382. Joel Parker, The Three Powers of Government (New York: Hurd and Houghton, 1869), 62-63. Parker, a critic of Reconstruction, notes that the Radical program aimed above all at reconstituting the freedman as a national citizen: "They were seeking to force upon those States a radical change of their institutions, not in relation to the alleged cause of the war only, but in relation to certain rights of their citizens," which typically were "acted on as matters properly within the control of the States ... over
383. Sidney Andrews, The South Since the Civil War . . . (Boston, 1866)
384. quoted in Michael Les Benedict, Fruits of Victory, 16
385. Generally, see David Donald, The Politics of Reconstruction, 1863-1867 (1965; Cambridge: Harvard University Press, 1984), 53-82
386. Everette Swinney, Suppressing the Ku Klux Klan: The Enforcement of the Reconstruction Amendments (New York: Garland Publishing, 1987), 118
387. Robert J. Kaczorowski, "To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War," American Historical Review 92 (1987): 47, 53
388. See, e.g., The Civil Rights Act of 1866, 14 U.S. Statutes at Large 27 at 28 (1866)
389. The Enforcement Acts of 1870, 16 U.S. Statutes at Large 140 at 142 (1870), and 1871
390. 16 U.S. Statutes at Large 433 at 437 (1871)
391. Lyman Trumbull, Congressional Globe, 39th Cong., 1st Sess., January 29, 1866, 475
392. Swinney, Suppressing the Ku Klux Klan, 67
393. And Robert Kaczorowski is undoubtedly correct to claim that this fact was illustrative of the 39th Congress's belief that "civil rights," like those conferred in the Fugitive Slave Clause, were national in character. Robert J. 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): 589
394. Andrew Johnson, Congressional Globe, 39th Cong., 1st Sess., March 27, 1866, 1681
395. Congressional Globe, 39th Cong., 1st Sess., February 2, 1866, 603
396. Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977), 227
397. Congressional Globe, 39th Congress, 1st Sess., Febru-ary 2, 1866, 602. It should be noted that this movement to clothe the federal government with broader powers was tempered by a palpable sense that the conclusion of military hostilities necessitated rolling back "the Federal Government powers." "Let us go back to the original condition of things," pleaded Republican Senator (IA) James W. Grimes in 1866. Grimes, Congressional Globe, 39th Cong., 1st Sess., May 8, 1866, 2446
398. quoted in Benedict, Fruits of Victory, 13
399. Cowan, Congressional Globe, 39th Cong., 1st Sess., February 2, 1866, 604
400. Congressional Globe, 39th Congress, 1st Sess., February 2, 1866, 605
401. Dana, Journal, 2:424
402. James Shepherd Pike, The Prostrate State: South Carolina Under Negro Government . . . (New York: D. Applelon and Company, 1874), 12
403. Congressional Globe, 39th Cong., 1st Sess., February 2, 1866, 599, 601
404. Congressional Globe, Appendix, 42nd Cong., 1st Sess., March 31, 1871, 81
405. Democratic opposition to the Reconstruction Acts is discussed in Pamela Brandwein, "Slavery as an Interpretive Issue in the Reconstruction Congress," Law and Society Review 34 (2000): 326-27
406. Generally, see William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge: Harvard University Press, 1988)
407. Charlottesville (Va.) Chronicle, n.d., 1866
408. cited in Anon., Is the South Ready for Restoration (s.n., 1866), 11
409. Numerous examples of military posses are detailed in James E. Sefton, The United States Army and Reconstruction, 1865-1877 (Baton Rouge: The University of Louisiana Press, 1967), e.g., 70, 219, 223
410. For a discussion of the extent of Klan activities, see Foner, Reconstruction, 434
411. As Congressman A. F. Perry of Ohio lamented in 1871: "The boasted courage of the South is not courage in their presence [the Klan]. Sheriffs, having eyes to see, see not; judges, having ears to hear, hear no; witnesses conceal the truth or falsify it; grand and petit juries act as if they might be accomplices. In the presence of these gangs all the apparatus and machinery of civil government, all the processes of justice, skulk away as if government and justice were crimes and feared detention." A. F. Perry, Congressional Globe, Appendix, March 31, 1871, 78
412. Kaczorowski, Politics of Judicial Interpretation, 21, 140-60
413. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873)
414. United States v. Reese, 92 U.S. (2 Otto) 214 (1876)
415. United States v. Cruikshank, 92 U.S. (2 Otto) 542 (1876)
416. George W. Julian, Political Recollections, 1840 to 1872 (Chicago: Jansen, McClurg & Company, 1884), 307
417. Augusta (Ga.) Constitutionalist, n.d., 1866
418. quoted in Is the South Ready for Restoration, 9 [emphasis added]
419. Kaczorowski, Politics of Judicial Interpretation, 161-88
420. Skowronek, Building a New American State, 61-120
421. Congressional Record, 45th Cong., 2d sess., v. 7, pt. 4, June 7, 1878, 4243-44
422. 20 U.S. Statutes at Large 145 at 152 (June 18, 1878): "From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment . . . may be expressly authorized by the Constitution. . . ." For detailed discussions of the genesis of the Posse Comitatus Act
423. see David E. Engdahl, "The New Civil Disturbances Regulations: The Threat of Military Intervention," Indiana Law Journal 49 (1974): 596-603
424. Dominic J. Campisi, "Honored in the Breech: Presidential Authority to Execute the Laws with Military Force," Yale Law Journal 83 (1973): 130-52
425. James M. McPherson, "Coercion or Conciliation? Abolitionists Debate President Hayes' Southern Policy," New England Quarterly 34 (1966): 474-97
426. On the debate over whether there was a "Compromise of 1877," see C. Vann Woodward, Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction (1951; Boston: Little, Brown, 1966)
427. Michael Les Benedict, "Southern Democrats in the Crisis of 1876-1877: A Reconsideration of Reunion and Reaction," Journal of Southern History 46 (1980): 489-524
428. Congressional Record, 45th Cong., 2d sess., June 7, 1878, 4242, 4246, 4248
429. United States v. Stanley, 109 U.S. 3 at 51-52 (1883)
430. Benedict, Fruits of Victory, 38
431. In Masters Without Slaves, 68, James Roark argues that "slavery's disintegration was not matched by a general falling away from central principles by planters."
432. See also, George Rable, But There Was No Peace, 185, 163-85
433. On the legacy of this chapter of Reconstruction, see Edmund S. Morgan, American Slavery, American Freedom, 386-87
434. Stephen Middleton The Black Laws: Race and the Legal Process in Early Ohio (Columbus: Ohio State University Press, 2006), 251-61
435. On the state that followed, see, e.g., Richard F. Bensel, The Political Economy of American Industrialization, 1877-1900 (New York: Cambridge University Press, 2000)
436. Morton Keller, Affairs of State: Public Life in Late Nineteenth-Century America (Cambridge: Harvard University Press, 1977)
437. William J. Novak, "The Not-So-Strange Birth of the Modem American State," Law and History Review 24 (2006): 193-200
438. Rodgers, Atlantic Crossings
439. Martin J. Sklar, The Corporate Reconstruction of American Capitalism, 1890-1916: The Market, the Law, and Politics (New York: Cambridge University Press, 1988)
440. Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (New York: Cambridge University Press, 2003)
441. Wright v. United States, 158 U.S. 232 at 239 (1895)
442. See also, 25 U.S. Statutes at Large 178 (1888)
443. As part of the broader effort to "civilize" Indians during the late nineteenth century, the federal government attempted to gradually replace tribal law enforcement with federal authority. Russel Lawrence Barsh and J. Youngblood Henderson, "Tribal Courts, the Model Code, and the Police Idea in American Indian Policy," Law and Contemporary Problems 40 (1976): 35-49
444. Edward Paxson, Justice of the Pennsylvania Supreme Court (1892), quoted in David Montgomery, Fall of the House of Labor: The Workplace, the State, and American Labor Activism, 1865-1925 (New York: Cambridge University Press, 1987), 39
445. Wilfred M. Peck, "Importation of Armed Men from Other States to Protect Property [Townsend Prize Oration]," Yale Law Journal 3 (1893): 26
446. On the use of private forces against strikers, see Robert P. Weiss, "Private Detective Agencies and Labour Discipline in the United States, 1855-1946," Historical Journal 29 (1986): 87-107
447. In Re Debs, 158 U.S. 564 at 582 (May 27, 1895)
448. On the relationship between the state and labor in late nineteenth-century America, see Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960 (New York: Cambridge University Press, 1985)
449. Montgomery, Fall of the House of Labor, 5, 37-39, 347
450. William E. Forbath, Law and the Shaping of the American Labor Movement (Cambridge: Harvard University Press, 1991)
451. Ex Parte Siebold, 100 U.S. 371 at 395, 396 (1880)
452. See also, In Re Neagle, 135 U.S. 1 at 65 (1890)
453. In Re Quarles, 158 U.S. 532 at 535 (1895)
454. Contemporary discussions of the Posse Comitatus Act are simply too voluminous to list. Typically, scholars understand the Act as an unwarranted limitation or necessary check on the federal government's law enforcement capabilities. See, e.g., Linda J. Demaine and Brian Rosen, "Process Dangers of Military Involvement in Civil Law Enforcement: Rectifying the Posse Comitatus Act," New York University Journal of Legislation and Public Policy 9 (2005-2006): 169-250
455. Clifford J. Rosky, "Force, Inc.: The Privatization of Punishment, Policing, and Military Force in Liberal States," Connecticut Law Review 36 (2004): 879-1032, esp. 1017-32
456. Steven G. Calabresi and Christopher S. Yoo, "The Unitary Executive During the Second Half-Century," Harvard Journal of Law & Public Policy 26 (2003): 772-80
457. Richard H. Kohn, "Posse Comitatus: Using the Military at Home: Yesterday, Today, and Tomorrow," Chicago Journal of International Law 4 (2003): 165-92
458. Lochner v. New York, 198 U.S. 45 (1905)
459. Anon., "Civil Conscription in the United States," Harvard Law Review 30 (1917): 265
460. "Civil Conscription in the United States," 269
461. Butler v. Perry, 240 U.S. 328 at 333 (1916)
462. Peonage Cases, 123 F. 671 at 681-82 (1903)
463. On the latter, see Aziz Z. Huq, "Peonage and Contractual Liberty," Columbia Law Review 101 (2001): 351-91
464. Pete Daniel, "The Metamorphosis of Slavery, 1865-1900," Journal of American History 66 (1979): 88-99
465. The persistence of slavery as a frame of reference for understanding inequitable social relations is discussed by Eric Foner, "The Meaning of Freedom in the Age of Emancipation," Journal of American History 81 (1994): 435-60
466. Stanley, "Beggars Can't Be Choosers," 1265-93