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The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America
GAUTHAM RAO
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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.
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In antebellum America, as in pre-industrial England, it was commonplace
to witness civilians accompanying sheriffs and justices, scouring
the countryside in search of scoundrels, scalawags, and other law-breakers.
These civilians were the posse comitatus, or uncompensated,
temporarily deputized citizens assisting law enforcement officers.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
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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
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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
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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
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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.
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"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
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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?
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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.
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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
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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
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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
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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.
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I. The Local Posse
and the Moral Economy of the Public Good
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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
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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
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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
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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."
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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
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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
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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
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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
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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
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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
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II. "Emergency" Powers:
Federal Power over Persons, 17881850
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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.
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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
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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
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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
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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
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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
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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
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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
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III. Transforming Federal
Compulsion:
The Fugitive Slave Crisis, 1850–1860
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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.
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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."
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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
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IV. "Conditions Analogous
to Slavery":
Abolitionists and the Posse Comitatus
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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
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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V. Creating Federal Autonomy:
Legitimizing Federal Compulsion, 1850–1860
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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VI. Necessary Compulsion:
The Posse Comitatus Doctrine and the Civil War
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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
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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
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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
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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
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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
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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
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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
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