25.3  
Journals link Search link Partners link Information link
Fall, 2007
Previous
Next
Law and History Review

Table of Contents
List journal issues
Home
Get a printer-friendly version of this page
 
 
 


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

GAUTHAM RAO



   

The master has a right to call upon the State and the people . . . as loyal citizens to the Constitution and the Laws of the United States, as bound, whenever requested, to assist him; and to deliver up the slave. . . . I say it is binding. It is binding upon every good and loyal citizen.
                    Robert J. Brent,
                    Attorney General of Maryland (1852)


"My policy" has prov'd a sham,
And I, myself, am little less'
For both are futile as a d—n,
And justly scouted by Congress.
                    Zedekiah Comitatus (pseud.),
                    Reconstruction on "My Policy" (1866)


The great problem between man and master . . . is to be solved at last by the American spirit of fair-play. Here lies the hope of the future.
                    Wilfred M. Peck, "Townsend Prize Oration,"
                    Yale Law Journal 3 (1893): 28.

 
     In antebellum America, as in pre-industrial England, it was commonplace to witness civilians accompanying sheriffs and justices, scouring the countryside in search of scoundrels, scalawags, and other law-breakers. These civilians were the posse comitatus, or uncompensated, temporarily deputized citizens assisting law enforcement officers.1 At its core, the posse comitatus was a compulsory institution. Prior to the advent of centralized police forces, sheriffs and others compelled citizens to serve "in the name of the state" to execute arrests, level public nuisances, and keep the peace, "upon pain of fine and imprisonment."2 Despite its coercive character, though, the posse was widely understood as one among many compulsory duties that protected the "public welfare."3 Americans heeded the call to serve in local posses, explained jurist Edward Livingston, because of communal "ties of property, of family, of love of country and of liberty." Such civic obligations, wrote Alexis de Tocqueville in 1835, illustrated why Americans had such a pressing "interest in . . . arresting the guilty man." At once coercive and communitarian, lamented Henry David Thoreau, the posse comitatus exemplified how those that "serve the state . . . with their bodies," were "commonly esteemed good citizens."4 1
      States and localities exercised this power over persons with little apparent difficulty. But as the story of Castner Hanway illustrates, the federal government's assertion of the very same form of compulsion proved deeply problematic. In the early hours of September 11, 1851, Castner Hanway happened upon Deputy U.S. Marshal Henry Kline, who was in pursuit of fugitive slaves outside Christiana, Pennsylvania. Kline displayed his warrant to Hanway and then "called upon him in the name of the United States" to join a posse comitatus to "assist him in making the arrests." But Hanway wanted "nothing to do with it." He "would not assist." A surprised Kline persisted: under the Fugitive Slave Law of 1850, "all good citizens are hereby commanded to aid and assist . . . whenever their services may be required." To Kline's display of authority, Hanway responded that he "didn't care for that Act of Congress." Months later, Castner Hanway stood trial for treason. The prosecution alleged that by refusing to assist a United States officer, Hanway had shirked his "duty as an American citizen."5 2
      How can we make sense of Hanway's actions? It was immediately clear that the posse comitatus "in the name of the United States" lacked the obligatory power of its counterpart, "in the name of the state." Enoch Harlan, a witness on Hanway's behalf, was asked by the federal prosecutor whether he was a "man who will by every obligation put upon him, abide by those obligations?" "I believe myself to be a loyal citizen," began Harlan. But "there were some duties which the laws of our country might impose upon me which I could not conscientiously perform." The federal government lacked the requisite political legitimacy to force individuals into service. In stark contrast to the robust local powers to coerce allegiance for the public good, federal power appeared altogether abstract, lacking any meaningful incentives to compel obedience.6 3
      As important as the tenuousness of federal power, though, was the issue of slavery. Castner Hanway refused to join the federal marshal's posse comitatus because he wanted no part of any law, or any government power, that consigned men to lives of slavery. But servitude problematized both the ends and the means of the federal posse comitatus. Warned Hanway's counsel, even "threats of the gallows" could not "make active slave catchers of any respectable men." "You may crowd your prisons with men," he continued, but "you cannot compel" northerners into such service. Thus, it was not simply that this federal posse comitatus ultimately benefited slavery. Instead, Hanway rejected federal power over him because it would "compel" him to defy his beliefs. For Hanway, that is, there was something about this power over persons that itself suggested a condition of servitude to the federal state.7 4
      For the South, however, this federal power to raise a posse comitatus was precisely necessary to guarantee their property rights over fugitive slaves throughout the Union. For decades, slaveholders complained of the North's unwillingness to assist, and willingness to obstruct, efforts to reclaim runaways north of the Mason-Dixon. With the Fugitive Slave Law of 1850, slaveholders secured a national system to redress their grievances. In 1850, though, federal law enforcement was but a sliver of its modern counterpart.8 Even as the federal presence penetrated the continent, warned Jacksonian John Barton Derby in 1829, "no man in the country ever feels its direct action." For Chief Justice Roger Taney, the overwhelming lack of federal marshals and courts meant that it would be "ineffectual and delusive" to rely on federal power to enforce the Fugitive Slave Law.9 After some brief talk of "an army that would have to be stationed in every town and county," though, slaveholders and their doughface allies settled upon the federal posse comitatus doctrine. 5
      "Every good citizen of the United States," promulgated the Fugitive Slave Law of 1850, had a "binding" obligation, "when summoned," to "aid in executing that process." In the language of political institutions, the posse comitatus was clearly a clever structural remedy to the federal government's traditionally deficient manpower. But there were surely other reasons for the doctrine. After all, the South's law of fugitive slaves had long maintained, "it is the duty of every good citizen, who finds a slave at large . . . to deliver him to the nearest justice of the peace, for commitment." Thus, a national duty to assist in the recovery of fugitive slaves imposed the legal norms of slave society on free states. The federal posse comitatus would, quite literally, compel the North to accept the legitimacy of slavery. In this way, the federal posse comitatus doctrine was a blueprint of the South's vision for a truly slaveholding republic.10 6
     As Castner Hanway's tribulations suggest, though, the apparent connections between southern slavery and the federal posse comitatus doctrine quickly caused trouble. Abolitionists found it impossible to differentiate service in the federal posse comitatus from service to southern slaveholders. Even those that did not believe the federal government was at the beck and call of "the slave power" worried about the consequences of unhesitatingly obeying federal compulsion. Was not compulsory service against one's will the essence of slavery? What was to prevent them from becoming slaves in the service of their governmental masters? 7
      Contemplating federal compulsion in terms of slavery continued during the Civil War. Conscription, the compulsory transformation of citizens into soldiers, proved particularly thorny. Although most acknowledged the "military necessity" of raising armies, conscripts themselves were left to ponder the difference between mandatory, compulsory military service and a condition of servitude. Such issues persisted well into Reconstruction, where the federal government used the bayonet—military forces as a posse comitatus—to compel truculent southerners to accept a radical paradigm of freedom and equality. For their part, white southerners protested, as abolitionists had in the 1850s, that they had become nothing less than slaves to the federal state. The subsequent repudiation of the federal posse comitatus doctrine thus symbolized not only the immediate failures of Reconstruction, but also the demise of a program of federal power owing its origins to the oppositional politics of slavery and freedom. For a public weary of decades of debating the meaning of servitude and emancipation, and on the verge of ensconcing a conservative socio-legal order, the statutory death of the posse comitatus was no doubt a convenient way to bury the persistent, and frequently interconnected, questions of slavery, government compulsion, and individual rights. 8
      This article studies the federal posse comitatus doctrine, the federal government's power to compel the service of individuals, to examine how the prism of slavery redefined the relationship between individuals and the federal state in mid-nineteenth century America. It traces a lengthy intellectual contest over the legitimacy of federal compulsion that suggests new perspectives on the meaning of slavery and federal power in mid-nineteenth century America. Scholarly discussions of government power over persons typically emphasize the modern abstraction of government power, such as the complexities of contractual obligations, administrative battles between individual and bureau, and the reach of centralized social policies.11 But the story of the posse comitatus doctrine suggests a foundational relationship between slavery and the federal government's techniques of coercing free individuals.12 This early practice of federal power has eluded students of federal governance, who have just begun to take stock of American slavery as a wellspring of federal policy. The history of the federal posse comitatus doctrine, on the other hand, illustrates how the conflict between slavery and freedom transformed the theory and practice of federal power in the Civil War era.13 9
     Throughout the world, of course, it had always seemed problematic for government to stake a claim over the individual's body and volition.14 The moral propriety and instrumental rationality of this compulsion would provoke metaphysical and historical soul-searching far into the future.15 Yet, in the United States, the history of national power typically suggests a teleology of social progress. By identifying a material and intellectual nexus between slavery and federal compulsion, on the other hand, this essay suggests a moral ambivalence beneath the rise of federal power. As Edmund Morgan has argued, American slavery and American freedom were inherently connected from the very beginning of the republic. Slavery and national compulsion, this essay argues, share a similar, foundational relationship.16 10
      Indeed, in mid-nineteenth century America, as slavery necessitated the institutional expansion of federal power over persons, it was simultaneously the frame of reference for contemplating this power. Thus, the federal posse comitatus doctrine and the growth of national power owed as much to the antebellum politics of American slavery as to the well-known icons—the Civil Rights Acts and Reconstruction Amendments—of postbellum American freedom.17 From 1850 to 1878, the federal government expanded its coercive power over individuals, in order to safeguard national property rights for slaveholders, emancipate millions of enslaved African-Americans, and enforce the doctrine of formal equality. In short, like the marketplace, the rise of the federal state wrought contradictory but congruous forces of liberation and compulsion upon the individual.18 11
      After a description of the posse's early origins, this article studies how southern slaveholders developed the posse comitatus doctrine to fashion a federal state of their liking. The abolitionist critique of this "overseer state" is the subject of the third section. Next, it explores how the Union and Confederacy drew upon the posse comitatus doctrine to expand the federal state's coercive powers over citizens. The essay concludes with the fate of the doctrine during Reconstruction. Through the Posse Comitatus Act of 1878, the readmitted south struck down the most poignant symbol of slavery, compulsion, and statecraft, thus guaranteeing its permanence in the fabric of national governance. 12
   

I. The Local Posse and the Moral Economy of the Public Good

 
      During the reign of Edward I (1285), when England was still in an "infant state of society," explains Patrick Colquhoun's Georgian treatise, royal officials initiated the "ancient practice" of commandeering private persons to "discover criminal persons flying from justice." This practice, known alternatively as the "hue and cry" and jurata ad arma during the thirteenth century, would eventually become the posse comitatus. Over time, authorities repeatedly used the posse to subdue seemingly ubiquitous countryside mobs. To quell these affrays, for instance, the Riot Act of 1714 commanded "all his Majesty's Subjects of Age and Ability" to lend their assistance to the local sheriff.19 13
      By the Industrial Revolution, however, England shunned the posse comitatus for large, centralized police forces.20 But the posse had found a home in the North American colonies where mobbing remained all the rage. Despite the innumerable structures of authority in the colonies—household, church, town, county, colony, and crown—the first Americans were a truly riotous bunch.21 In its migration to America, however, colonists transformed the posse comitatus from an instrument of royal prerogative to an institution of local self-governance. As Pauline Maier has argued, sheriffs and others that demanded the posse comitatus were "virtually helpless," because those commanded to serve in the posse were often "the same persons who participated in extra-legal uprisings." In other words, the colonists' ability to shift from law-breakers to law-enforcers, and vice versa, ensured that the posse comitatus, no matter its hierarchical origins, functioned through, rather than upon, the local popular will.22 14
      The colonists' control of the posse comitatus—of the legal means of coercion—all but precipitated the American Revolution. As Lord North put it, the British authorities had previously been reliant upon "the posse Comitatus [sic]; and when it is considered . . . that the posse are the very people who have committed all these riots, little obedience . . . is to be expected from them." All that remained was for the British "to force obedience to the laws," for, he concluded, "our regulations here are of no import, if you have nobody in that country to give them force." To "force obedience," as Lord North counseled, Parliament turned to "the military power." And thus the stage was set for a revolutionary encounter between an invading army, seeking to impose what North would call "the constitution of coercion," and the colonists, accustomed as they were to the principle of "disciplined collective coercion."23 15
      After the Revolution, the posse comitatus remained a pillar of local self-governance throughout the young nation. The few individuals that refused the command to serve, for instance, met with sharp rebukes. Explained Chancellor Kent in Coyles v. Hurtin (1813), "every man is bound to be aiding and assisting, upon order or summons . . . and is punishable if he refuses." Such severity was required because it was simply not possible for officers to "be actually present in every place where power might be wanting." To deny sheriffs the posse comitatus would result in "great inconvenience and danger to the administration of justice." The Supreme Court of Pennsylvania struck a similar tone in 1840: "acquiescence in the laws is the duty of every citizen; and in a government of laws, such as ours emphatically is, it is the duty of every citizen to aid in their execution."24 The posse comitatus was crucial to preserving the "government of laws." 16
      In fact, as a vital tool for enforcing the state's vaunted powers to protect the citizenry's health, safety, and property, the posse was central to the broader project of protecting "the public good."25 Dueling, disruptive quarrels, eavesdropping, the keeping of pigs, disorderly houses, elements "injurious to the health of a neighborhood," obstructions of "highways, bridges, and publick rivers," inquests, indecency, illegal fishing, squatting, gaming—all of these public crimes and problems justified sheriffs, constables, selectmen, jailers, bailiffs, and coroners to assemble the posse comitatus.26 In this way, the implementation of common law police doctrines of nuisance, carriers, inns, public ways, public health, and especially riot, depended upon the posse comitatus.27 In times of public tumult, declared one treatise, "it is not left to the choice or will of the subject . . . to attend to the call of the magistrate, as they think proper." On the other hand, the citizen had a "bounden duty . . . to perform to the utmost of his ability," "to suppress any tumultuous assembly." Such was "the duty of every good citizen."28 17
      It was also notable that the posse comitatus was typically uncompensated. As Justice John Kennedy of the Pennsylvania Supreme Court ruled in Avery v. Seely (1841), the "citizens of the county" are "bound, at the call of the sheriff," to serve as a posse comitatus, "without any compensation or allowance being made for it," and "without any reward being prescribed for . . . doing so." To labor for the state, "without compensation," "allowance," or "reward" thus bore out the claims of Edward Livingston and Alexis de Tocqueville that Americans willingly participated in posses due to communal "ties of property, of family, of love of country and of liberty." No doubt, as the same court decided three years later, the "ties of property" and "liberty" were paramount: without the posse comitatus, "our liberty would be but a name, and our lives and property insecure." The citizen served the state to protect the public's liberty and property. Rather than monetary compensation, the citizen could rest assured that his own "liberty and property" was subject to the same protection.29 18
      In the American south, the problem of fugitive slaves magnified the exchange of individual service in the posse comitatus, for the public protection of private interests.30 The mystery of fugitive slaves, suggested the poet James Russell Lowell in 1845, was that they could "convert themselves from chattels into men," undoing their condition of servitude, by "simply changing their geographical position." Indeed, "property on two feet," in Mary Chestnut's parlance, highlighted the essential contradiction of classifying human beings as chattel property.31 They "struck the hardest blow" against the institution of slavery by interrupting the master's "uncontrolled authority over the body," the basis of the master-slave relations of social domination.32 In the southern political economy of slavery, moreover, fugitive slaves were the ultimate liability: the complete loss of capital and its future profitability. From the inception of American slavery, slaveholders thus used public and private law to protect the basis of their society.33 19
     As Sally Hadden has shown, the South's use of law and law enforcement to police slaves explicitly "evokes" the basic idea of the posse comitatus, as a society staked its welfare on its ability to compel private citizens to execute public services. Hadden explains how southern counties and cities compelled locals to prevent slave escapes and insurrection.34 Cumulatively known as "the negro law," such practices of police much depended on the watchful eyes and compulsory assistance of white citizens. It was "the duty of every good citizen" finding a slave at large," ruled the Mississippi Supreme Court in 1845, to "deliver him to the nearest justices of the peace." This duty, ruled the same court a decade later, was as much a private duty to one's fellow slaveholders, as it was a public duty to guarantee "the safety of the community itself." After all, lurking fugitive slaves could lead to slave revolts, the antebellum south's "greatest nightmare."35 20
      The South's law of fugitive slaves thus rested upon the basic principle of the posse comitatus: the public good, or in this case, the continuity of the planter class's economic and political domination, demanded the active, mandatory participation of the citizenry to apprehend fugitive slaves. Concluded James Kent in his Commentaries, amongst "such combustible materials," the South's expectation of "unceasing vigilance" was wholly understandable. In its "dual power" of socio-legal domination over its slaves, the South's mandatory vigilance united its two monopolies of violence—the practices of the plantation, and the doctrines of the state law—to create a peculiarly effective police regime.36 21
      In the north and south, then, the posse comitatus was a ubiquitous institution for the maintenance of public order. Citizens willingly submitted to serving the state without compensation in exchange for the protection of their liberty and property—especially their slave property. As an institution of state and local law, the posse comitatus was a legalistic moral economy in which citizens' compulsory service protected local communities and private interests alike. As the quixotic Joel Barlow concluded in his uncompleted magnum opus, with the writ of habeas corpus, the jury trial, and the system of checks and balances, the posse comitatus was "the real foundation of our own system."37 22
   

II. "Emergency" Powers: Federal Power over Persons, 1788­1850

 
     Yet, the principle of compulsory service that was so deeply embedded in the fabric of state and local governance was almost altogether lacking at the federal level. To be sure, the success of the constitutional revolution of 1787 required a drastic expansion of federal authority. And in theory, this power acted directly on persons rather than on the states. Especially in times of mass insubordination, insurrection, and outright rebellion, federal power to compel obedience sprang to life. Yet the intellectual and practical framework for this federal compulsion was, rather than the exigencies of everyday governance, the exceptionality of "emergency" or extreme situations. 23
      Just how, precisely, the federal government would go about enforcing national law was a tricky question in postcolonial America.38 For the architects of the republic, this was as much a geographical question as it was one of politics. According to Alexander Hamilton in Federalist 27, if the federal government operated "at a distance and out of sight," it would fail "to interest the sensations of the people." In a confederacy that lacked a sense of its own nationhood, he continued, "there can be no sanction for the laws but force." On the other hand, if the federal government maintained an institutional presence within the states, "the authority of the Union and the affections of the citizens towards it will be strengthened." For Hamilton, civic involvement in the federal state was necessary because "the more it circulates through those channels and currents in which the passions of mankind naturally flow, the less it will require the aid of the violent and perilous expedients of compulsion." By distributing lower federal courts, and other offices, throughout the country, then, the founders envisioned that federal law would be enforced, not by "perilous expedients of compulsion," but rather, through "the ordinary magistracy . . . in the execution of the laws."39 24
      But what, precisely, was meant by this preferred form of compulsion? Hamilton suggested a system with two layers. There was, as he implied above, the political culture of "public opinion" that would motivate people to obey the law. "In addition," though, Hamilton claimed that the federal government, like the states, had "the power to call to its assistance and support the resources of the whole Union." Here, then, was the origin of the federal posse comitatus. It was "absurd," Hamilton wrote in Federalist 29, to believe that officers of the federal government lacked the power to command "the assistance of the citizens" where such force was necessary. Thus, the Judiciary Act of 1789 explicitly granted federal marshals "power to command all necessary assistance in the execution of his duty."40 25
      The vehemence with which the founders asserted the federal government's enforcement powers, though, was in stark contrast to the early practices of federal power.41 As several scholars have noted, the first federal courts frequently had empty dockets. Even though this would change by the early nineteenth century, the great majority of cases that came before the lower federal courts required little in the way of execution.42 In the general constitutional order of the early republic, the lower federal courts played but a peripheral role in an era dominated by the ascendancy of the common law and state judiciaries.43 26
      Peripheral though it may have been, the federal judiciary, and the compulsion it wrought, literally held together the union during times of insurrectionary crisis. "Whenever the laws of the United States shall be opposed, or the execution thereof obstructed in any state," declared the federal Calling Forth Act of 1795, "by combinations too powerful to be suppressed . . . by the powers vested in the marshals," the president possessed the power to commandeer "the militia of such state, or of any other state or states," to "cause the laws to be duly executed."44 Through this act and its later brethren, the federal government drew upon military power to serve as the "posse cometatus of the Marshall [sic]" to compel large groups of citizens—western Pennsylvanians in the 1790s; Aaron Burr and his banditti in 1807; South Carolinian nullifiers in 1832; revolutionary Mormons in 1857—to obey federal law.45 27
      The very exceptional nature of this use of federal compulsion necessitated a subordinate order of federal coercion. The president's calling forth of the posse comitatus, opined Joseph Story, was not a request but "an order," "a command of a military nature," requiring of militiamen nothing less than "prompt and unhesitating obedience." But Story's primary interest in Martin v. Mott (1827) was not to create a federal compulsion over its own servicemen. On the other hand, Mott, like Houston v. Moore (1820), concerned the federal government's power to commandeer state militiamen into federal service. The distinction illustrated how, theories of federal power notwithstanding, federal compulsion remained mediated by more substantively powerful institutions. In the latter case, Story rooted the president's power over the militias in the fact that "every citizen of a state owes a double allegiance" to "both the State and the United States." In fact, Story had employed smoke and mirrors. The federal government's power of compulsion hinged on some allegiance of the subject, but that allegiance itself was of the third order, rooted in the foundational compulsion the states wielded over "every citizen of a state," to say nothing of the obligations "of a military nature" that militiamen owed their outfits.46 28
      In short, federal power over persons, as it related to the instruments and objects of compulsion, was meant only for the "sudden emergencies" that transcended the law enforcement capacities of the states.47 In the throes of revolutionary ideology, some Americans had believed that the occasional revolutionary movement energized democratic tendencies. But after the Fries Rebellion of 1799, the federalist Timothy Pickering proffered a reinterpretation: " . . . punishment of such high handed offenders were essential to ensure future obedience to the laws, or the exertions of our best citizens to suppress future insurrections." In this sense, the occasional insurrection, bringing as it did the sporadic use of federal compulsion, would fetch "obedience for years to come."48 29
      In 1849, Justice Levi Woodbury summarized the distribution of powers over persons between the several states and the federal government. In his treatise-like dissent in Luther v. Borden, Woodbury wrote that "the States have succeeded well, thus far,—over half a century,—in suppressing domestic violence . . . with the aid of the militia . . . by help of the posse comitatus . . . dispersed all opposition." It was only, "if civil process . . . should fail," that the "general government" would supply "additional force."49 Just months later, federal Judge Humphrey Howe Leavitt of the Circuit Court of Ohio dispelled any remaining doubts about the nature and character of this exceptional federal power. In Driskell v. Parish, a jury was asked to determine the innocence or guilt of parties that had remained "merely passive" as authorities, clothed with the power of law, pursued a federal fugitive. In his charge, Leavitt reminded the jurors that the federal statute in question "imposes no obligation on any one to aid in the recaption." "To recognize such an obligation," he went on to suggest, "would be monstrous."50 30
   

III. Transforming Federal Compulsion:
The Fugitive Slave Crisis, 1850–1860

 
     In Driskell v. Parish, the fugitive Judge Leavitt spoke of was a fugitive slave; the statute he interpreted was the Fugitive Slave Law of 1793. How, then, did the notion of a federal obligation for citizens to aid in the recapture of fugitive slaves, deemed "monstrous" by Judge Leavitt in 1849, become legitimate just a year later? During the intervening months, the politics of slavery necessitated a fundamental reevaluation and reconfiguration of federal power over persons. Two problems in particular—the North's Personal Liberty Laws and the Supreme Court's decision in Prigg v. Pennsylvania (1842)—left the South in a seemingly intractable position. On the one hand, the North was resolutely unwilling to assist slaveholders with their fugitive slaves. On the other hand, while the South turned to the federal government for redress, they reckoned with highly limited federal law enforcement machinery. The Fugitive Slave Law of 1850, and the federal posse comitatus doctrine in particular, thus attempted to kill two birds with one, very transformative stone. To be sure, compelling the citizenry to serve as federal law enforcement was an innovative method to heighten state capacity. Underlying this compulsion, though, was a deeper and darker motive: as the law would force northerners to assist, it would coerce them to accept the legitimacy of slavery. Here lay legal and political blueprints for the South's vision for a truly slaveholding republic. 31
      For the South, of course, the interstate flight of slaves was a longstanding grievance. "Mason & Dixon's Line," commented Dr. Samuel Cartwright, was "a mere air line, without wall or guard." No matter the strength of their own, internal apparatus for apprehending runaways, it had long been understood that slavery could exist only by positive law. 51 Thus, George Mason and his fellow slaveholding "founding fathers" secured the Constitution's Fugitive Slave Clause, (Art. IV, §2). As elaborated by the Fugitive Slave Law of 1793, the Clause required that state law enforcement "deliver up" fugitive slaves to pursuant slaveholders.52 And until the 1830s, explained Francis Bowen in The North American Review, "We . . . never heard that the enforcement . . . of this act created any ill-feeling, or gave rise to any disorder or opposition." But during the 1830s, Bowen continued, abolitionists' legal "agitation against slavery" effectively paralyzed the 1793 law.53 Most troublesome were 'Personal Liberty Laws,' that prohibited state and local officials from taking any part in fugitive slave cases.54 Until 1842, abolitionists' successful strategy of using state law to hinder the 1793 law appeared to have secured a major, and permanent, blow against slavery. Without the cooperation of the free states' local police apparatus, slaveholders had little chance to successfully reclaim a fugitive slave.55 32
     But it was only with the Prigg v. Pennsylvania (1842), that the basic framework for policing fugitive slaves shifted from considerations of state to national power. Essentially, Prigg weighed the constitutionality of the Personal Liberty Law: did the states have the power to legislate as to the mechanism for seizing and reclaiming runaways? Certainly not, ruled Justice Joseph Story and a highly fractured bench. But Story took the matter a step further. It was not simply that the states could not hinder slaveowners' right of recapture. Rather, it was that the federal government possessed exclusive jurisdiction over fugitive slaves in free states. And since these would be federal laws, "the states . . . cannot be compelled to enforce them."56 As Prigg absolved the states of any enforcement burden, then, it forced slaveholders to drastically reframe their approach to the problem of fugitive slaves. Where the South had previously sought to compel the states to enforce fugitive slave legislation, they would now, for better or worse, be forced to rely on the federal government for assistance. 33
      In 1842, though, it was hard to imagine an effective federally administered fugitive slave law. The state law enforcement apparatus—with its justices of the peace, constabulary, night watch, sheriffs, and others—deeply interpenetrated almost every aspect of American society. Federal law enforcement, on the other hand, consisted exclusively of the meager detachment of U.S. Marshals and their deputies assigned to the few federal courts throughout the country. 57 How could the federal government secure slaveholders' property rights with such a deficiency of manpower? Forced to join Story's opinion in striking down the Personal Liberty Laws, Justice Peter Daniel and Chief Justice Taney eviscerated the notion that the federal government possessed any such capability. A splenetic Daniel noted that "the inconsiderable number of federal officers . . . and their frequent remoteness from the theatre of action" would effectively "defeat" the slaveholder's "right of property." The lack of federal manpower and its "very distant" locale, thundered the Chief Justice, went "to show how ineffectual and delusive" the 1793 law was "if state authority is forbidden to come to its aid."58 34
      As the political voices of southern slavery contemplated a federally enforced fugitive slave law, then, they faced the reality of relying on a negligible and disparate federal police. Accordingly, preliminary drafts of new legislation sought to maximize the federal government's existing power by appropriating all federal officials, law enforcement or otherwise, to apprehend fugitive slaves.59 For one thing, slaveholders might enjoy a better opportunity to reclaim their slaves if a federal "judge, commissioner, clerk, marshal, postmaster, or collector [of customs]" could issue process. Senator Andrew Butler of South Carolina also proposed other creative ways to extract the most utility from existing federal institutions. If no marshal was to be found to execute a warrant, any federal official could simply "appoint some fit and discreet person, who shall be willing to act as marshal," more proximate to what Justice Daniel called the "theatre of action." Similarly, if a marshal or "acting marshal" lacked sufficient manpower to execute a fugitive slave warrant, Senator Butler's bill "authorized and required" him "to employ so many persons as he may deem necessary." Butler's first bill thus worked with the federal government's existing resources to address the dilemma of state capacity.60 35
      Importantly, by early 1850, Butler and his co-sponsor, Virginia's Senator James Mason fully acknowledged the revolutionary course of this project in statecraft. It was an odd proposition, remarked Mason, that clerks, and especially postmasters, should assume such powers. But "if the law is to be effectual," he continued, "you must provide officers to execute it at almost every cross-road, in all the counties of the offending States." Only "officers of the Federal Government" would suffice. For Mason, the sole alternative to harnessing the power of postmasters, customs officials, and clerks, was to "create a new batch, and pay them adequate salaries, to be located at every point, in every county of the non-slaveholding States." It was a simple choice: either completely mobilize the federal government's existing resources, or create a "new batch" of federal fugitive slave police.61 36
      A simple choice, perhaps, but, for even Mason and Butler, it quickly appeared a false one. In 1848, Butler warned that he "had not complete confidence in the efficacy" of his bill. Two years later Mason worried that even with the new provisions, a federal fugitive slave law would become "merely illusory." The problem, they realized, was not simply that the federal government lacked the resources to adequately enforce the law. Theirs was, in fact, a classic—perhaps the classic—conundrum of law enforcement. "No law can be carried into effect," explained James Mason, "unless it is sustained and supported by the loyalty of the people to whom it is directed." By early 1850, then, the architects of the second Fugitive Slave Law had combined their interest in quantitatively increasing federal capacity with approaches to coerce the citizenry to "sustain and support" the law.62 37
      For slaveholders, this was no doubt a vexing dilemma. Southerners themselves shared a common understanding that fugitive slaves threatened the very foundations of their society. It was "undoubtedly for the public good, and therefore, a matter of public policy," declared the Kentucky Supreme Court in 1847, "that runaway slaves be re-taken and placed in subjection to their proper owners." But "in the non-slaveholding States," acknowledged the same court, there was "an odium . . . visited upon those of their citizens who engaged in the apprehending of fugitives from other States."63 As Justice McLean dissented in Prigg, how was it possible "to protect the rights of the slaveholder against the states opposed to these rights" if "the effective power is in the hands of those on whom it is to operate"? It was, indeed, a question of power. If there was not power enough within the ideas of "comity and respect" to compel northerners to recognize slavery's legitimacy, the South then required something more. As David Brion Davis concludes, all that remained for the South, was "only the law of force."64 38
      Butler and Mason introduced this "law of force" on January 31, 1850. Much of the law went to creating "partly judicial and partly administrative" officials, U.S. Commissioners, to expedite fugitive slave cases in the federal courts.65 As to the matter of enforcement, the 1850 law turned again to the U.S. Marshals. The new bill placed no enforcement burdens on customs officials, postmasters, and clerks. Instead, where and "when needed," commissioners and marshals would "summon and call to their aid the bystanders, or posse comitatus of the proper county." Here, then, lay the via media between James Mason's suggestion of federal officers "at every point, in every county," and the South's system of "unceasing vigilance." Indeed, what was so institutionally innovative about the Fugitive Slave Law of 1850 was the notion that citizens themselves would do the work of the federal state.66 39
      Was it sufficient, though, to clothe marshals with the power to summon the posse comitatus? Mason and Butler also included a legal foundation that, they believed, would animate this institution. This was the federal posse comitatus doctrine: "All good citizens are hereby commanded to aid and assist in the prompt and efficient execution of this law, whenever their services may be required as aforesaid for that purpose." This single sentence betrayed a vital assumption about the nature of the federal state and its relations to the American people. If the United States "commanded" its "good citizens" at any moment "whenever their services may be required," then the nation possessed the power to compel persons to assist it. This assertion of constant, inexorable federal power over persons was a far cry from exceptional, "emergency" powers to subdue insurrection. On the other hand, what distinguished this assertion of power was its decidedly unexceptional nature: no matter where or when it so desired, the federal government could command the assistance of its citizens.67 40
     The flip side of the doctrine dealt, not with government capability, but with obligations of citizens to obey the federal state. The political objects of this power of compulsion were not soldiers; they were not even state militia. Nor did the doctrine make use of Justice Johnson's Houston v. Moore formulation that "every citizen of a state owes a double allegiance to both the State and the United States." The simple fact was that these very distinctions that had previously delimited federal power no longer bore much importance. "All good citizens" were to obey, and, presumably, it was the fact of their submission to federal power that so constituted them as "good citizens." 41
      That the radical nature of the posse comitatus doctrine's transformation of federal power over persons—from emergency to routine; from de facto to de jure; from sporadic to ubiquitous—lurked beneath the political "compromise of 1850" was all the more remarkable. But this was not the first time the South's forward-looking agenda, frequently mistaken for frightened self-preservationist politics, hoodwinked the North into such "compromises." In the past, though, the South had bartered on geographical and representational terms alone, trading away slavery in the northwest for the west in 1787; Maine and the Midwest for Missouri and the Deep South in 1820.68 By 1850, with covetous northern eyes fixated on California, the South had quietly changed the game altogether. To be sure, the geographical and territorial questions provided great fodder for the South to maintain its aggrieved-minority bluster about states rights. In the meantime, however, the South had trained its sights on loftier goals. With the Fugitive Slave Law and the power to enforce it, declared Henry Clay to his fellow Kentuckians in November, 1850, "we have the constitution, the law, and the clear right on our side."69 42
   

IV. "Conditions Analogous to Slavery":
Abolitionists and the
Posse Comitatus

 
     Likely, neither Clay nor Mason nor Butler could have imagined the success of the Fugitive Slave Law of 1850. According to Randolph Campbell, slaveowners enjoyed about an 80 percent success rate reclaiming fugitive slaves in free states from 1850 to 1860. Emboldened by the new law, slaveholders successfully pursued fugitives in previously impregnable abolitionist strongholds such as Boston, Cleveland, and upstate New York. In less divisive climes, professional slave-catchers colluded with U.S. Marshals to seize suspected fugitives, sometimes en masse. Throughout the country, it had become commonplace to witness federal marshals and their "posses making arrests."70 43
      For several decades, abolitionists had denounced the South's ambitious planter class bent on the incremental nationalization of the plantation mode of production. For abolitionists, the federal posse comitatus doctrine was tangible evidence of the continued ascendancy of the southern "slave power."71 But they also detected a fundamental reorientation of the power relations between their old constitutional and political antagonists. Now clothed with the power to command the assistance of citizens to capture fugitive slaves, southern planters could compel northerners into service. In the north, the prospect of assisting slavery under duress or force suggested a condition little different from slavery itself. 44
      The abolitionists' encounter with the federal posse comitatus began—not unlike earlier critics of standing armies, censorship, and taxation, and more recent opponents of eminent domain, firearms regulation, and electronic surveillance—with a hoary hypothetical quandary: what if federal power acted specifically upon you? Milwaukee Congregationalist William DeLoss Love put the matter this way. At the stroke of midnight, a fugitive slave, with "the bloodhounds . . . on his track," knocks at "your door." Almost immediately, "the slave-hunter comes. He has found his prey." Now, "you are called to assist. If you now obey the law," you will "thrust him into cruel slavery," with "no end but death." "Will you return him to it? Will you obey god or man?"72 45
      In this contest between the individual's personal belief and the authority of federal law, explained Reverend Rufus W. Clark of Albany, the individual faced powerful, but different, coercive forces. Government compulsion—"the officer, who commands me to aid him"—faced off against individual conscience: "I have been taught to believe that man could not hold as property his fellow man." For Clark, salvation required flouting the forces of government and law. He could "endure the penalty" in a court of law, "but no earthly power can compel me, or any other man," to commit "treason against conscience, against humanity, against justice, against God." In this moral standoff, ecumenical imperatives trumped the federal state's "earthly power" to "compel."73 46
      Moreover, by personalizing the possibility of serving in the posse comitatus, abolitionists understood their individual politics within a perceived global struggle between slavery and freedom. Explained a Pawtucket clergyman, contemplating compulsion in this manner made the global crisis "as apparent as it is real." On this higher plane, repudiating the posse comitatus constituted a substantive contribution to the destruction of slavery. But the converse was also true. In executing the Fugitive Slave Law, wrote Horace Mann, the federal marshal "consents to play pimp and pander to this bawd of American Slavery." When the marshal summoned the posse comitatus, then, the citizens of free states became an extension of the slave power. Thus the posse comitatus "transform[sic] men . . . to bloodhounds."74 Worse yet, according to Minister R. D. Williams, the federal posse comitatus "demands us at the bidding of the slave-catcher." This was understood literally. Slave-catchers were a particularly reviled set of characters in the North, subject to any number of ideological, religious, and class criticisms.75 Others, like the Reverend Joseph P. Thompson, saw no difference between doing "the bidding" of a slave-catcher and being compelled "to act as a slave catcher."76 Having "made no compact to be a slave hunter," abolitionists nonetheless confronted a dangerous, coercive force that transformed them into "ready participants in upholding a system which we abhor."77 47
     Abolitionists thus refused to extricate the legal institution of the federal posse comitatus from the social and economic ends it ultimately served. But many abolitionists simultaneously maintained that the federal posse comitatus, independent from the influence of any slave power, indicated the ascendancy of an unjustly powerful federal state. As Gerrit Smith concluded, arming federal officers with such powers was "a doctrine leading to centralization, consolidation, and the subversion of the rights of the States."78 As a matter of ideological convenience, the abolitionist critique of the Fugitive Slave Law was as focused on national governance as it was on American slavery. 48
      Rather appropriately, the abolitionists' quantitative evidence of this federal leviathan, the supposed proliferation of U.S. Commissioners, was deeply unconvincing. Numerically, the slaveholders "army of new officials" was indeed quite paltry.79 But the military analogy made much more sense as a qualitative transformation of federal power. In a few notorious instances, the federal government called on military forces to fill the ranks of the posse. According to polemicist Samuel Johnson, this revealed "that the Federal Government stands before us unmasked . . . and growing rapidly into a centralized despotism, resting on military force." Robert Rantoul, Jr., similarly interpreted the Fugitive Slave Law as the beginning of "the constant increase of power of the general government, culminating in national "increase of taxation" and a "large standing army." For Walt Whitman, the sight of a federal marshal's posse comitatus, "with foot and dragoons," marked the defeat of the American Revolution. "Look, all orderly citizens," directed Whitman. After close to a century, it was time to "Dig out King George's Coffin," for in America, "the crown is come to its own, and more than its own."80 49
      But slavery could not long remain outside this discussion. In fact, slavery was the point of convergence between abolitionists' twofold critique of the posse comitatus as icons of national power and the slave power. Concluded Richard Henry Dana, "the fearful slave power" exerted "such entire control of the Union" so as to transform a courthouse into "a slave pen." Fellow Bostonian Theodore Parker confirmed that "military rule" in Boston demanded "that we may serve the spirit of slavery." Such instances, together with the South's political dalliance with nationalist militarism, pushed Samuel Freeman Clark to conclude: "The slaveholders . . . have a vision in their mind of a powerful military State, of which slavery shall be the basis." Centralized, concentrated, and despotic regimes, argued the abolitionists, began and ended in slavery.81 50
     Such a despotic government in the image of slavery, abolitionists maintained, had a transformative effect on the citizenry. According to Rufus Clark, the federal posse comitatus, the Fugitive Slave Law, and the federal government more broadly, sought "silent submission." The federal posse comitatus threatened to transform the sentient, thoughtful citizen into an unfeeling, unthinking, automaton. "If, when called upon to lay hands upon a fellow man, and drag him back to his chains and toil and degradation," queried Clark, then what became of the citizen? Attending to "such a villainous act" with "alacrity," without sensing "the throbbings of conscience," and warding off "humanity and Christianity within us," meant that "we are all slaves, and it becomes us to look to our own chains." As the federal posse comitatus transformed free citizens into slaves, "our enthusiastic boastings of freedom" became "a mere phantasm," and "our Declaration of Independence a satire upon American liberty." No matter the sectional politics or new doctrines of power, for abolitionists like Clark, the federal power over persons embodied in the posse comitatus made free men into slaves.82 51
      Thus, abolitionists argued that the very government created to guarantee the freedom of man sought to render them as slaves, for no less a cause than the perpetuation of the slave system. The institution and socio-political purpose of the federal government's posse comitatus, that is, were one and the same. Here, then, appeared the specter of a dual system of slavery. In the South, slave owners used "stripes and starvation" to guarantee the slave's "spirit may be broken to her will." The federal posse comitatus threatened a potentially more insidious brand of slavery. In the north, claimed Samuel Johnson, "southern plantation whips were not needed." On the other hand, "Northern 'law and order' served as well." Between the slaveowner and the federal government, queried Johnson, "Where is the difference? Are not the last agents as effective as the first?" And between the slave and the northern citizen, "which was the more abject slave"?83 For Josiah Quincy, "the fugitive-slave obligation" made the situation of the northern man, "in one respect, worse than that of slavery." Not even the southern slave "can be compelled, even by his master, to cut the throat or blow out the brains of his brother Negro." For the North, though, with "the fugitive-slave obligation," there was not a "militia-man who may not be compelled tomorrow to cut the throat or blow out the brains of a fellow-citizen, at the will of the basest Southern slaveholder."84 52
      For abolitionists, then, the duty to assist in the federal posse comitatus not only made citizens into slaves. More important, the posse comitatus indicated that the federal state itself had been reconfigured "in the very image of Slavery." The federal government now asserted a power to control "our pulses and command them to cease beating"; to command men either to act or "to stand still." The federal command to assist, in short, placed governmental "fetters" upon "our limbs." Concluded William Whitcomb, the federal government and its "new Fugitive law" would "enslave you and me as well as the black man—it will make slaves out of us all. Talk not of the Free States! There are none such now."85 53
   

V. Creating Federal Autonomy:
Legitimizing Federal Compulsion, 1850–1860

 
     As abolitionists juxtaposed the posse comitatus with slavery, they threatened to subvert the legitimacy of the Fugitive Slave Law of 1850 and the South's vision of a new constitutional order. In response, slaveholders and their allies sought an alternative paradigm to legitimize the expansion of federal power over persons. That paradigm would be freedom or, more precisely, that American citizens had to submit to the posse comitatus in order to maintain the orderly, well-regulated society required for a free nation. The federal government, as the states had for so many decades, now compelled individuals to guard the health and safety of its denizens. What appeared to abolitionists as a form of servitude was, for their opponents, a standard for inclusion in the national polity. These arguments, replete with appeals to comprehensive notions of national jurisdiction and citizenship, suggested that federal power itself had been transformed. The elaboration of the federal posse comitatus doctrine during the 1850s thus signaled the existence of a ubiquitous federal power over persons that reached every individual within the Union. 54
      But the first task was to subvert the abolitionists' claims that the posse comitatus was inherently connected to slavery. As U.S. Attorney General Caleb Cushing explained,

the posse comitatus to aid the officer of the law in the execution of his duty is in the service of the Government, not in the service of the individual who sues out the process of the law to have the justice of the nation administered to him, which administration is of the duty of the Government.

     For Cushing, the posse man was, simply, "in the service of the Government." It was a neat division of cause and effect that isolated the posse comitatus as mere legal process. True enough, a slaveholder "sues out the process of the law." But "administration . . . of the duty" put the matter in the hands of "the Government." The posse comitatus, then, was no appendage of the slave power; it was an institution whose sole purpose was to guarantee "the execution of the laws of the land."86

55
      But defenders of the Fugitive Slave Law also faced the delicate task of infusing the posse comitatus, supposedly a simple legal institution devoid of political and moral content, with some coercive claims upon the American people. To do so, jurists claimed that the constitutionality of a law implied its execution. While the Supreme Court would not explicitly uphold the Fugitive Slave Law until Ableman v. Booth (1859), it was clear long before that the Fugitive Slave Law of 1850 and the federal posse comitatus was the law of the land.87 Thus, argued District Judge Peleg Sprague, heeding the federal command for assistance was nothing more or less than "a plain legal duty."88 Men might disapprove of laws, wrote Justus Omstead, but laws were laws, and "are entitled to the respect and obedience of every true American citizen." Justice Samuel Nelson put the matter more forcefully. "It is a law," he informed a New York jury, "which every citizen is bound to obey."89 56
      In fact, anchoring the duty to serve in the federal posse comitatus in the obligations of American "citizens" built upon a concomitant shift in the legal understanding of national citizenship. For New York Assemblyman Theophilus Callicot, "citizen" meant, "we are Americans as well as New Yorkers—that we are law-abiding citizens of the United States as well as of the State of New York." This twofold citizenship, hoped Callicot, would create "ready obedience to the federal law." More importantly, however, others identified an independent notion of national citizenship that imposed positive duties on national citizens. Where Justice Johnson had, in Houston v. Moore (1820), claimed that "every citizen of a State owes a double allegiance" to "both the State and the United States," George F. Kettel wrote in 1851 that "every American citizen is bound by a double obligation," first to "the nation," and then to his conscience. In Kettel's revision of the Houston formulation, the "American citizen" is detached from any moorings to the individual states.90 57
      Similarly, in the 1852 fugitive slave case Moore v. Illinois, Judge Grier noted "every citizen of the United States is also a citizen of a State or territory." At all times, then, citizens "owed allegiance to two sovereigns." The capstone of this reasoning came, of course, in Chief Justice Taney's Dred Scott (1856) opinion. "It does not by any means imply," explained Taney, that "a citizen of a State" "must be a citizen of the United States." Not only were state and national citizenship distinct, they were inherently unrelated. The United States, as a sovereign nation, exercised "powers over the citizen strictly defined, and limited by the Constitution." In this way, Dred Scott legitimated, rather than bestowed, a new notion of national citizenship.91 58
     So armed, proponents of the Fugitive Slave Law painted service in the posse comitatus as a crucial duty owed to the nation. Explained Henry Clay, the Fugitive Slave Law of 1850 "extends to every man in the Union." Furthermore, the law "devolves upon" the citizen "the obligation to assist in the recovery of a fugitive slave from labor." If a citizen was "present when the owner of a slave is about to assert his rights," then "every man present, whether officer . . . or private individual, is bound to assist in the executing of the laws of their country."92 For a "citizen of the republic," commented Roger Taney in 1859, "it certainly can be no humiliation . . . to yield a ready obedience to the laws as administered by the constituted authorities." Such obedience, in fact, was "among his first and highest duties as a citizen, because government cannot exist without it." And for those abolitionists that cited problems of conscience, District Judge Grier of Pennsylvania offered a variation upon an unfortunate platitude of our time: love it—nay, obey it—or leave it. The constitution and the Fugitive Slave Law were "binding on the conscience of every good citizen," and "those who are unwilling to acknowledge the obligations which the law of the land imposes upon them should migrate to Canada," or elsewhere, where "institutions do not infringe upon their tender conscience."93 59
      But defining "good citizens" through duty owed the nation was much more than normative rhetoric. In fact, such language explicitly invoked the duties of citizens, under the common law of officers, to "keep the peace." Like the vaunted police powers in the name of citizens' health and safety, the common law granted sheriffs and constables the power to call on the posse comitatus during riots, affrays, and insurrections to "apprehend disturbers of the public tranquility."94 The common law doctrine that civil disturbances threatened "liberty" and "property" served to heighten the stakes of the citizenry's obligation to serve the state. At common law, "it is not left to the choice or will of the subject . . . to attend to the call of the magistrate, as they think proper." On the other hand, in times of crisis, the citizen had a "bounden duty . . . to perform to the utmost of his ability," "to suppress any tumultuous assembly." In Great Britain, it was precisely such obedience that rendered a citizen "a good subject." In the late antebellum United States, though, this was "the duty of every good citizen."95 60
      That such common law doctrines of public welfare and orderliness were the bulwark of the federal government's asserted power over persons suggested the existence, if not of a national police power, then of a national policing power. The federal posse comitatus doctrine, after all, implied "a power of self-preservation," as Chief Justice Taney had defined the state police powers in The Passenger Cases (1849). And in its routine exercise, this federal power also was directed at the individual citizen.96 Yet the most telling reach of this new federal power over persons was its reconfiguration of the older mode of "emergency" federal powers to subdue insurrections. There were a few occasions, most notably the Shadrach and Sims cases in Boston, where President Millard Fillmore called out military force, in keeping with the lengthy tradition of federal intervention in times of insurrection. But for Fillmore, the use of military rather than civilian force to aid in law enforcement failed to change the fundamental nature "of the cometatus [sic]." Military force, that is, was to be understood as "the army as citizens."97 61
      This was an important distinction to make. As a matter of law, it turned on the incorporation of the British Mansfield Doctrine, under which soldiers served in the posse comitatus, "not as soldiers, but as citizens." This elaboration of the powers set forth in the Fugitive Slave Law of 1850 received its strongest pronouncement in Attorney General Caleb Cushing's 1854 opinion concerning "extradition of fugitives from service." "The posse comitatus," wrote Cushing, "comprises every person in the district or county above the age of fifteen years, whatever may be their occupation, whether civilians or . . . the military of all denominations." The composition of "military bodies, under the immediate command of their own officers," he concluded, "does not in any way wise affect their legal character. They are still the posse comitatus." Through the Mansfield Doctrine, the Federal Government brought what had been previously "emergency" powers within the broader rubric of the posse comitatus doctrine. No longer was the presidential power to suppress insurrection, as Joseph Story had put it in Martin v. Mott (1827) exclusively "of a military nature."98 On the other hand, its characteristic exceptionality had been folded into an increasingly routine federal power over persons. 62
      But most of Cushing's opinion was a history of the legal development of the federal posse comitatus doctrine. Beginning with numerous American and British common law powers of arrest under which sheriffs, constables, and other states or local officers could call upon the posse comitatus, Cushing concluded of federal law enforcement: "the law affords ample means to the officer to execute all lawful precepts to him directed." As he reiterated the common law origins of the federal policing power, Cushing—perhaps realizing the actual novelty of his position—also turned to another set of authorities. The Judiciary Act of 1789, he claimed, granted the marshal the same power "to command all necessary assistance in the execution of his duty." With this statutory foundation, Cushing argued, the federal government had always possessed the same power to compel its citizens' as did the states. The events of the previous five years—the Fugitive Slave Law of 1850 and the propagation of the posse comitatus doctrine—simply roused dormant federal powers over persons. "There was no absolute need . . . [for] the act of 1850," he proclaimed, "to introduce a clause to authorize them to command all requisite assistance." The Fugitive Slave Law of 1850, accordingly, was "declaratory merely."99 63
      Cushing was no doubt correct that the Fugitive Slave Law of 1850 awakened a federal power over persons. But his suggestion that this power had always been available was a semantic distinction aimed at legitimizing the federal posse comitatus by appeal to legal tradition. Under this logic, it was the sanctity of the Union itself that offered the most compelling justification for submission to federal compulsion. As a Democratic pamphleteer informed "the Whigs of Pennsylvania" in 1851, it was his hope that "the great majority of the people revere the Constitution, and are prepared to perform with cordial alacrity all the duties which it enjoins." If this was not the case, "then is the Union, for every salutary purpose, already at an end." Unless the North was prepared to push aside its objections and physically assist slaveholders in search of fugitive slaves, the Union would collapse. But what would it take to guarantee the Union's survival? Justice Samuel Nelson thundered, "if any one supposes that this Union can be preserved," after "one section of it" had bucked their duties under the nation's "fundamental law," then "he is laboring under a delusion." Northerners had to accept "abject submission" and "a stern adherence" to the Fugitive Slave Law.100 64
      There simply was no alternative. If it could not rely upon "the attendance and aid of the 'posse comitatus,'" petitioned the Maryland legislature, the Fugitive Slave Law of 1850 would be "impotent." It was thus "imperatively necessary" for Congress to "render the act efficient and operative." However the federal government would coerce the North to obey, the time was gone, warned District Judge Peleg Sprague, in which "the Criminal Code" was administered with "mildness and forbearance." So high were the stakes that federal power must become "sternly inflexsible [sic]." "To preserve this government," concluded Sprague, "it is necessary that its laws be faithfully executed, and you are now called upon, under the highest sanction, to aid in this indispensable work."101 65
   

VI. Necessary Compulsion:
The
Posse Comitatus Doctrine and the Civil War

 
      As sectionalism gave way to war, the old battle lines changed. Republicans and their fellow travelers, so recently vocal opponents of federal power, strove to "abandon the machinery of obstruction, and take up that of co-ercion [sic]!" Similarly, the Confederates turned their attention to defending their new republic. But as the North and South searched for techniques to forcibly transform individuals into soldiers, the problem of conscription picked up where the debate over the federal posse comitatus doctrine had left off. In a war to determine the legitimacy of slavery, even the mantra of "government necessity" would not dislodge slavery as the frame of reference for contemplating government compulsion.102 66
      Understandably, the novelty of secession and war militated against understanding the Civil War as anything but completely unprecedented. To influential William Whiting, it was necessary to shelve the old "body of laws regulating the rights, liabilities, and duties of citizens, in time of public tranquility," in favor of the "hitherto unused powers . . . to regulate the rights, liabilities, and duties of citizens in time of war." And the Union and Confederacy did in fact launch the most massive wartime mobilization programs in history. Neither institutionally nor conceptually, though, were these programs the result of spontaneous generation. Thus, when it came to appropriating citizens' labor, and expropriating their property, in the name of the greater good, the posse comitatus doctrine was a handy tool to legitimize the ever-magnified notion of government compulsion.103 67
      At a conceptual level, the federal posse comitatus doctrine provided President Abraham Lincoln with a useful metaphor to make sense of the Civil War. Lincoln's strategic refusal to accept the legitimacy of the Confederacy rendered secession as a grand, concerted attempt to hinder execution of federal law.104 Neither did "the proportion and duration of the struggle," ruled the Supreme Court in Hickman v. Jones (1869), change the character of this "insurrection." It was no different than "the insurrection of a county or smaller municipal territory against the State to which it belonged."105 Thus, noted Attorney General Edward Bates, just as a court officer would "call out the whole power of the county to enforce their judgments," the president utilized "force" to ensure "'that the laws be faithfully executed.'" For a few observers, though, was a troublesome framework. Perhaps Lincoln's rather anticlimactic theory of the war as a police action would fail to muster adequate enthusiasm for the North to prevail. Wrote Jacob Thompson in the Brooklyn Eagle, "we never shall be able to carry on war upon the theory that there is no war." To ensure "we have power adequate to every emergency," it was necessary to "get beyond the posse comitatus."106 68
      Thompson, though, need not have worried. The Lincoln Administration and its allies launched an unprecedented effort to capture and convince northern hearts and minds of the dire necessity of the fight.107 As Ohio District Judge Humphrey Leavitt wrote, victory was possible if and only if "every American citizen" lent "a hearty support of all proper means for the restoration of the Union." In 1849 Leavitt had proclaimed it "monstrous" to identify an "obligation" for citizens to aid federal law enforcement. But in 1863, Leavitt now argued that "imminent peril" to the nation required that "every American citizen" lend "a hearty support of all proper means for the restoration of the Union." Such "hearty support" consisted foremost of outright submission to "the stringent doctrine of military necessity." In such trying times, individual consciences were "not to be put in competition with the preservation of the life of the nation." In this way, the war, and its concomitant "doctrine of military necessity," literally justified the federal government's appeals for the citizen's obedience.108 69
      But the highest imperative of the "doctrine of military necessity" was manpower. "Every citizen owes his country military service," argued the military leadership.109 Or put another way, it was hoped that by capturing the citizen's heart and mind, his body would follow. In the end, though, the Lincoln administration turned to conscription, or compelling men to serve the state as soldiers, to fill out the Union ranks. The 1863 Conscription Act posited that "all able-bodied male citizens . . . between the ages of twenty and forty-five years" were legally bound "to perform military duty in the service of the United States when called out by the President."110 In scope and scale, this obligation to militarily serve the nation far transcended the peacetime requirement of assisting federal marshals. But it was, like the federal posse comitatus, a federal command for assistance over the citizenry. Magnitude aside, the central difference was that where the peacetime posse sought out all "good citizens," the wartime state staked its coercive claim over "able bodied male citizens."111 70
      To what degree, however, did conscripts "feel" this compulsion? Why men fought in the Civil War, and what precisely they fought for, has been the subject of some fascination. Nationalism, patriotism, and local status, at different times and places, each motivated civilians to become soldiers.112 But conscription was, and remains, an inherently coercive procedure. As Michael Les Benedict writes, ordinary northerners faced a national power that "could pluck a young farmer from his home and family and put him in uniform." And if obedience was not forthcoming, evaders faced "a federal, military provost marshal and . . . a national, military court." Through conscription, federal power over persons penetrated virtually every corner of the Union.113 71
      And yet, no small number of northerners resisted the concept that the federal government could compel them to serve the state. The general problem was the relationship of