A. Content of the Fugitive Slave Act

The Fugitive Slave Act's questionable constitutionality resulted from its strongly pro-Southern content. The fugitive act was passed as part of the Compromise of 1850, but it was not a compromise on the issue of fugitive slaves. Specifically, the act authorized slave owners or their agents to forcefully seize alleged fugitives and return them to the state from which they fled with or without legal process.Footnote ²⁶ If the slave owner wished to utilize federal procedures, a Southern judge could issue a certificate that would conclusively establish the slave status of the person mentioned therein for purposes of removal.Footnote ²⁷ This certificate could be presented to a federal judge or commissioner in the North who would issue a warrant for the fugitive's arrest. Anyone who interfered with the arrest of a fugitive, attempted to rescue a fugitive, assisted a fugitive's escape, or concealed a fugitive was subject to a fine not exceeding $1000 and imprisonment not exceeding six months.Footnote ²⁸

Once arrested, the alleged fugitive slave faced proceedings before a federal commissioner.Footnote ²⁹ The commissioner was paid $5 if the alleged fugitive was found to be free and $10 if found to be a slave.Footnote ³⁰ Under no circumstances was the testimony of the alleged fugitive to be admitted, and the fugitive was denied the right to a trial by jury.Footnote ³¹ Finally, the proceedings were deemed summary and final—no appeal or writ of habeas corpus was permitted.Footnote ³² The act thus armed the Southern claimant with new procedures designed to aid in rendition and, in response to many Northern states' withdrawal of cooperation, greatly increased the federal government's involvement by utilizing federal commissioners instead of relying on state magistrates.

B. Constitutional Theory and the Fugitive Slave Act

Antislavery advocates attacked the Fugitive Slave Act with at least three major lines of argument. First, the antislavery bar argued that Congress was granted no power to legislate on the subject of fugitive slaves.Footnote ³³ Under this argument, the Fugitive Slave Clause of the Constitution was merely an obligation between the states. The clause stated: “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from any service or labor; but shall be delivered up on claim of the party, to whom such service or labor may be due.”Footnote ³⁴ This clause obviously gave no explicit grant of power to Congress. Moreover, the clause is found not in Article I, which enumerates congressional power, but rather in Section 2 of Article IV, which is a series of interstate comity provisions. Finally, because the framers explicitly granted Congress enforcement power in other sections of Article IV, it could be inferred that the lack of such an explicit grant of power in the Fugitive Slave Clause was intentional.

The second major line of argument against the Fugitive Slave Act of 1850 was that it violated various provisions of the Bill of Rights, including the rights to a trial by jury and due process of law.Footnote ³⁵ These arguments focused on the rights of free blacks in the North. Because Northerners were generally presumed to be free and Bill of Rights protections applied to all “persons,” rather than being limited to citizens, free blacks were at least arguably entitled to constitutional protections.Footnote ³⁶

Of particular importance, antislavery lawyers often argued that the variable fee paid to commissioners, which was doubled when the commissioner ruled against the alleged fugitive, constituted a bribe and therefore violated due process of law.Footnote ³⁷ Supreme Court Justice John McLean, among others, argued in response that commissioners were paid a higher fee when a fugitive was removed merely “as a compensation to the commissioner” for the extra time needed to write a certificate of removal.Footnote ³⁸ In fact, English and state judges were routinely compensated with fee arrangements.Footnote ³⁹

The antislavery argument against variable compensation, however, cannot be dismissed as completely outlandish. The fees paid to English and state court judges were ordinarily triggered at various stages throughout the course of litigation, such as when the court served a summons or empanelled a jury, rather than being dependant upon ruling in favor of a particular party.Footnote ⁴⁰ Moreover, English common law cases, which were routinely used to interpret provisions of the Bill of Rights,Footnote ⁴¹ held that it was impermissible for a judge to have a financial interest in a case he was deciding, even if that interest was de minimus.Footnote ⁴² Although commissioners were required to perform more work when remanding a fugitive, the higher fee still posed a risk of bias.

The third major argument against the Fugitive Slave Act, and perhaps the most strenuously argued and persuasive argument put forth by the antislavery bar, was that the act permitted Article III cases to be adjudicated by non-Article III judges.Footnote ⁴³ Federal commissioners were empowered to decide cases under the fugitive act and therefore arguably exercised federal judicial power. The Constitution requires Article III judges to “hold their Offices during good Behaviour, and . . . receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”Footnote ⁴⁴ Because the commissioners were appointed by federal circuit courts, did not have lifetime tenure, and were paid a variable salary, the constitutional validity of their new powers was questionable.

This argument seems plausible as well. Prior to the passage of the Fugitive Slave Act, federal commissioners were authorized only to set bail, take affidavits and depositions, and arrest and imprison those suspected of violating federal law while they were awaiting trial; commissioners were not empowered to render final decisions in federal cases.Footnote ⁴⁵ The commissioners' new powers were questionable, as fugitive hearings arguably invoked federal judicial power and the Constitution requires such power to be vested only in federal judges. Article III dictates that “the judicial power of the United States, shall be vested in one Supreme Court, and such inferior courts as Congress may . . . establish,”Footnote ⁴⁶ and Martin v. Hunter's Lessee explicitly holds that Article III requires all federal judicial power to be vested in a federal court.Footnote ⁴⁷ As antislavery lawyers argued, Justice Story asserted in Prigg that fugitive slave hearings constituted cases “within the express delegation of [federal] judicial power.”Footnote ⁴⁸ Antislavery advocates thus argued that because fugitive hearings were a part of the federal judicial power, the Constitution required them to be heard by, or appealable to, a federal judge meeting the requirements of Article III. Footnote ⁴⁹ Because the commissioners' decisions could not be appealed or otherwise reviewed, their new powers were arguably unconstitutional.

Defenders of the act replied to the last two objections by claiming that hearings before federal commissioners were preliminary, ministerial, and therefore analogous to the initial seizure of a fugitive from justice.Footnote ⁵⁰ Under this argument, commissioners did not make final decisions regarding the alleged fugitives' status; instead, they merely authorized the extradition of alleged fugitives back to the state from which they fled, where a Southern court could make a final determination. As the hearing was ministerial, the right of trial by jury did not apply, the process due was minimal, and commissioners did not exercise final federal judicial power. Footnote ⁵¹

This response, however, was by no means conclusive. The decision of the commissioner was final in a way that extradition of a fugitive from justice was not. Whereas extradition of a fugitive from justice was merely the first step in a constitutionally regulated trial, the rendition of a fugitive slave was followed by no further legal proceedings, as the fugitive was remanded to the owner's private custody as a slave.Footnote ⁵² Moreover, the commissioner's decision could not be appealed or questioned under habeas corpus proceedings.Footnote ⁵³ As Thomas H. Talbot argued, the commissioner's hearing was “preliminary to no other proceeding, ancillary to no other trial, [and] ministerial to no other court.”Footnote ⁵⁴ Moreover, unlike in a scenario involving a fugitive from justice, the act authorized the removal of a person “held to service or labor” rather than a person charged with being held to service, implying that the fugitive hearing determined the alleged fugitive's status.Footnote ⁵⁵ In fact, the only possible future proceeding—a suit brought by the alleged slave for his freedom in the South—would seem to be a wholly separate trial, much like a prisoner bringing a habeas corpus petition.Footnote ⁵⁶ The commissioner's decision was thus arguably both final and judicial, and therefore in violation of Article III and the Bill of Rights.Footnote ⁵⁷

C. Legal Precedent

Although several plausible constitutional arguments against the fugitive acts were available, antislavery judges did not review the Fugitive Slave Act of 1850 on a clean slate, and it is therefore necessary to consider whether legal precedent may have constrained their decisions. Prigg v. Pennsylvania was the leading case on the subject of fugitive slaves. In Prigg, the jury found by special verdict that Edward Prigg had removed Margaret Morgan and her children from Pennsylvania as fugitive slaves without complying with the removal provisions of Pennsylvania's personal liberty law, which established procedures for the recovery of fugitive slaves and punished the kidnapping of black residents.Footnote ⁵⁸ The jury also specifically found that Margaret Morgan was in fact a fugitive slave.Footnote ⁵⁹ Relying on these findings, the Pennsylvanian courts found that Prigg was guilty of kidnapping under Pennsylvania's personal liberty law because he had failed to comply with its removal procedures.

On appeal to the Supreme Court, Justice Joseph Story, in what has been treated as the opinion of the Court, ruled that it was unconstitutional for Pennsylvania to punish a master for recovering his fugitive slaves.Footnote ⁶⁰ Justice Story's ruling was based on two lines of argument. First, Story held that the Constitution secures a master's private right of recaption, which empowers a master “in every State of the Union, to seize and recapture his slave, whenever he can do it, without any breach of the peace or illegal violence.”Footnote ⁶¹ Story further found that “any state law or state regulation, which interrupts, limits, delays or postpones the right of the owner to the immediate possession of the slave” conflicts with the master's right of private recaption.Footnote ⁶² Because the Pennsylvanian courts had interpreted the state's personal liberty law to require a master to comply with its procedures and therefore punished Prigg for independently removing his fugitive slave, Story found that the personal liberty law conflicted with Prigg's constitutional right of recaption.Footnote ⁶³

The procedural posture of the case, however, drastically limited the implications of the right of recaption recognized in Prigg. In Prigg, the jury had already found that Margaret Morgan was in fact a fugitive slave, and therefore the right arguably applied only to admitted fugitives. Anything in Story's opinion that suggested that states could not protect their free black residents was therefore dictum. The right of recaption was thus arguably consistent with alleged fugitives having legal rights, such as due process rights and the right to a jury trial, when their status was in dispute.

In Story's second line of reasoning, he found that the federal Fugitive Slave Act of 1793 pre-empted any state legislation on the subject of returning fugitive slaves, including Pennsylvania's personal liberty law.Footnote ⁶⁴ In order to reach this conclusion, Story also held that the Fugitive Slave Act of 1793 was constitutional.Footnote ⁶⁵

Prigg's ruling in favor of the constitutionality of the Fugitive Slave Act of 1793 clearly eliminated the first antislavery argument explained previously: that Congress was granted no power under the Fugitive Slave Clause and also called into question the applicability of Bill of Rights protections.Footnote ⁶⁶ The Fugitive Slave Act of 1793 commanded a judge or magistrate to authorize the removal of a person claimed as a fugitive slave “upon proof to the satisfaction of such Judge or magistrate” that the person claimed was in fact a fugitive slave.Footnote ⁶⁷ As the determination was made by the judge or magistrate, the act clearly did not contemplate a trial by jury. Prigg thus seems to preclude one of the antislavery bar's most popular arguments.

However, the Fugitive Slave Act of 1793 did not utilize federal commissioners or pay variable fees to federal officers, and therefore, despite some argument to the contrary, no ruling on the 1793 act could prejudice these two remaining antislavery arguments. Chief Justice Lemuel Shaw of the Supreme Judicial Court of Massachusetts, among others, argued that because Prigg upheld the use of state magistrates under the Fugitive Slave Law of 1793, it upheld the use of federal commissioners by analogy.Footnote ⁶⁸ He reasoned that although both positions were given similar quasi-judicial powers, neither satisfied Article III standards. Article III's requirements, however, apply only to federal judges. It therefore could be argued that the Constitution requires Congress to either use state officers to enforce its laws or create federal judges with Article III protections.Footnote ⁶⁹ There was thus ample room for the argument that state officers were not strictly analogous to federal commissioners. Prigg therefore did not necessarily control the issue.

D. The Judicial Role in the Nineteenth Century

Although the constitutionality of the Fugitive Slave Act was ambiguous, it may be that nineteenth century constraints on the judiciary foreclosed a ruling against it. As explained previously, the traditional view is that the nineteenth-century judiciary upheld proslavery legislation because it rejected antislavery arguments based on natural law or morality.Footnote ⁷⁰ However, even though antislavery advocates did frequently argue in terms of natural law,Footnote ⁷¹ many of their arguments were based solely on positive law. In fact, none of the three arguments set out relies on natural law or rules of interpretation based on morality; instead, each utilizes only traditional legal sources such as constitutional text and interpretation. The reluctance of eighteenth-century jurists to accept natural rights arguments therefore does not challenge the contention that the fugitive act was of questionable constitutionality.

Another possible judicial constraint was the prevailing conception of judicial review. According to conventional wisdom, by the mid-nineteenth century the Supreme Court had found only one act of Congress to be unconstitutional, and the law in question was merely a law regarding the Court's own jurisdiction.Footnote ⁷² It therefore could be argued that the courts did not exercise meaningful review of federal legislation.Footnote ⁷³

In the first several decades of the Court's existence, judicial review was a limited practice that bears little resemblance to the modern doctrine. Judicial review was initially viewed by many as a political and revolutionary act that relied on fundamental principles of law that were embodied in the Constitution rather than the constitutional text itself.Footnote ⁷⁴ As a result of Chief Justice John Marshal's interpretation of the Constitution as supreme written law, however, distinctions between ordinary law and the Constitution blurred.Footnote ⁷⁵ Judicial review of legislation therefore became widely accepted and was often used against state legislation, although jurists generally restricted its scope to the “concededly unconstitutional act.”Footnote ⁷⁶

The scope and perceived legitimacy of judicial review, however, expanded dramatically during the first half of the nineteenth century.Footnote ⁷⁷ The Court first moved beyond the concededly unconstitutional act in cases involving the Supremacy Clause and the Contract Clause. In these cases, Chief Justice Marshal interpreted the constitutional text as ordinary law and enforced this interpretation even against plausible alternative interpretations made by state legislatures.Footnote ⁷⁸ At first, other justices on the Court joined in Chief Justice Marshal's opinions only because they agreed with his ultimate holdings. The justices used the legal doctrine of vested rights, which they viewed as fundamental law, to reach Chief Justice Marshal's Contract Clause conclusions and agreed that the Court was given unique authority to resolve certain disputes with the states in the Supremacy Clause.Footnote ⁷⁹ Although the Court may have shown more deference to Congress than the states and tended to avoid politically divisive issues,Footnote ⁸⁰ by mid-century Chief Justice Marshal's practices had begun to take root and the stage was set for meaningful judicial review outside the vested rights and federalism contexts.Footnote ⁸¹

Dred Scott v. Sanford, decided merely seven years after the passage of the Fugitive Slave Act, proves that judicial review was sufficiently robust by mid-century to allow judges with sufficient motivation to strike down constitutionally ambiguous federal legislation. In Dred Scott, the Supreme Court ruled that federal legislation passed in the Missouri Compromise was unconstitutional.Footnote ⁸² The judges who formed the proslavery majority certainly did not rule against a “concededly unconstitutional act,” as the decision has historically been condemned as unreasoned and even its modern defenders admit that the constitutional law involved was ambiguous.Footnote ⁸³ If judges who preferred a proslavery ruling could use ambiguous constitutional doctrine to strike down federal legislation in Dred Scott, then it is hard to understand why antislavery judges could not have done the same regarding the Fugitive Slave Act.

The public reaction to Dred Scott is also revealing. Although countless critics attacked the constitutional merits of the decision, few questioned the Court's power to render it.Footnote ⁸⁴ Indeed, many of the decision's supporters self-servingly asserted that the Court had the power to render a final interpretation of all constitutional issues that came before it.Footnote ⁸⁵ If the prevailing view in the legal community had been that judicial review of federal legislation was improper or only justified in extreme cases, this probably would have been a common criticism of the decision. The lack of such criticism seems to imply that judicial review of congressional legislation, even constitutionally ambiguous and politically divisive legislation, was a generally accepted function of the judicial role at mid-century.

Nor can Dred Scott merely be dismissed as an outlier. The traditional account of judicial review of congressional legislation before the Civil War—that of nearly complete deference to Congress—has recently come under attack.Footnote ⁸⁶ This revisionist scholarship demonstrates not only that the Court invalidated several statutes prior to the 1850s,Footnote ⁸⁷ but, more importantly, that the Court also regularly reviewed the constitutionality of federal legislation and often limited or rewrote statutes to avoid constitutional boundaries.Footnote ⁸⁸ As with the Court's review of state legislation, most of these cases involved the institution of the judiciary or federalism issues; however, the Court's review occasionally extended to matters relating to individual rights as well.Footnote ⁸⁹ Even though few statutes had been wholly invalidated on constitutional grounds, by the 1850s the Court had become an established forum for raising constitutional issues and imposing constitutional limitations on federal legislation.Footnote ⁹⁰

Although the judicial role in the nineteenth century cannot explain why antislavery judges upheld the fugitive act, it may explain why they claimed that they were helpless to rule against it. Much more than is the case today, the judicial function was perceived to be one of an oracle of the law, in which judges identified timeless and immutable legal principles and applied them to specific cases.Footnote ⁹¹ Under this view, a judge could not be held morally responsible for his decisions, as he merely found rather than made the law. As modern legal thought has made clear, however, judges do have discretion when legal issues are ambiguous. Their decisions are thus often influenced by policy preferences, even if unconsciously. The judges' claims that the positive law forced them to uphold the Fugitive Slave Act therefore merely reflect the nineteenth-century conception of the judicial role and should not be seen as particularly convincing.

E. Respectability of Arguments Against the Fugitive Slave Act

Even if a logical case could be made against the Fugitive Slave Act, social mores could have prevented a serious inquiry.Footnote ⁹² In other words, social rather than legal factors may have constrained the judges. For example, it would be unrealistic to expect an antebellum judge, even one strongly committed to antislavery values, to have accepted Lysander Spooner's argument that the Constitution prohibited slavery. Given the social practices of the antebellum era, Spooner's argument was simply not in the realm of available options.

For several reasons, however, the Fugitive Slave Act was not so socially accepted that arguments against it could be discountenanced as unrealistic or out of touch with reality. First, striking down the Fugitive Slave Act would not have been out of step with prevailing moral sentiment in the North. Although most Northerners accepted slavery as a fundamental institution, fugitive slaves that managed to escape into the North were viewed sympathetically and slave catchers were generally viewed as morally corrupt profiteers.Footnote ⁹³ In fact, given the massive demonstrations against fugitive slave renditions such as those of Anthony Burns and Joshua Glover, it is clear that many Northerners morally opposed the return of fugitive slaves and some even rejected the legal duty despite its explicit mention in the Constitution.Footnote ⁹⁴

Second, the Fugitive Slave Act conflicted with traditional Northern legal norms. As explained previously, the Fugitive Slave Act denied anyone accused of being a fugitive slave even the most fundamental of legal protections, effectively creating a presumption of slavery in the North.Footnote ⁹⁵ The law was therefore at odds with the common Northern presumption that all men, regardless of race, were free.Footnote ⁹⁶ Moreover, the act flew in the face of decades of state legislation designed, at least in part, to protect free blacks from kidnapping.Footnote ⁹⁷ Many Northerners had long been angered over Southern kidnapping of free black residents.Footnote ⁹⁸ An antislavery judge that demanded some protection for free blacks in the North would only have been extending existing Northern legal principles.Footnote ⁹⁹

Third, in the early 1850s, when the judges first considered the law, the Fugitive Slave Act was not so politically popular as to be beyond examination. The act had passed only because of strong Southern support; thirty-one Northerners voted for the act in the House, whereas seventy-six voted against it.Footnote ¹⁰⁰ After the act's passage, many prominent Northerners, comprising a majority in some geographical areas, violently condemned the law.Footnote ¹⁰¹ And although the deeply unpopular abolitionists formed the core of this opposition, many mainstream political leaders and newspapers also took part.Footnote ¹⁰² In fact, a large number of Northern Whigs opposed the law, including a majority of Whigs from states such as Ohio and New York.Footnote ¹⁰³ Daniel Webster, one of the most powerful politicians in the country, devastated his reputation in the North, and especially in his home state of Massachusetts, by endorsing the law.Footnote ¹⁰⁴

Due to the influence of many Northern politicians, urban businessmen, and clergymen, however, most Northerners probably found the law's harsh provisions distasteful but ultimately acquiesced in order to avoid conflict with the South.Footnote ¹⁰⁵ Political leaders such as Daniel Webster argued that support for the Fugitive Slave Act would “rebuk[e] that spirit of faction and disunion” that imperiled the country, and Congress even passed a resolution declaring the Compromise measures to be a final adjustment of sectional issues.Footnote ¹⁰⁶ Most Northern ministers also supported the law, and many urged their congregations to abide by its terms for the sake of the Union.Footnote ¹⁰⁷ Moreover, urban businessmen, many of whom disapproved of slavery and the terms of the fugitive act, organized mass Union meetings and otherwise exerted their influence in favor of the act out of fear that disobedience to the law could disrupt commercial ties with the South.Footnote ¹⁰⁸

Public opinion in the North was thus not overwhelmingly supportive of the fugitive act; instead, while many opposed the law, others found it distasteful and accepted it only as a necessary expedient to reduce the risk of disunion. A judge who ruled against the law therefore would not have been completely out of step with Northern public opinion. In fact, in Massachusetts and Ohio, the states in which the judges examined in this article lived, they probably would have received substantial mainstream political support.

In sum, although a majority of Northerners accepted the law, many found it to be immoral, against traditional legal principles, and acceptable only because they thought it was necessary to appease the South. It therefore seems that, unlike a ruling against the institution of slavery, striking down the fugitive act would not have been socially untenable in the North. The only social obstacle to such a ruling was therefore the judges' own inclinations, which of course were influenced by the same forces that shaped public opinion, including the political reality that a failure to enforce the fugitive act could have threatened the Union.

F. State Court Rulings Against the Fugitive Acts

The conclusion that prominent antislavery judges had the ability to rule against the Fugitive Slave Act of 1850 is reinforced by the fact that several relatively obscure state judges used traditional legal principles to rule against it. In 1854, the Wisconsin Supreme Court ruled that the Fugitive Slave Act of 1850 was unconstitutional and released a federal prisoner accused of rescuing a fugitive slave.Footnote ¹⁰⁹ Writing for the court, Chief Justice Edward V. Whiton held that the fugitive act violated the right to a trial by jury and gave judicial powers to commissioners in violation of Article III.Footnote ¹¹⁰ In a concurring opinion, Justice Abraham D. Smith also argued that Congress lacked power to legislate under the Fugitive Slave Clause.Footnote ¹¹¹ In addition, two dissenting Ohio Supreme Court judges adopted each of the arguments used by the Wisconsin judges in the 1859 case of Ex parte Bushnell.Footnote ¹¹²

Some commentators have incorrectly argued that the Wisconsin and Ohio judges ruled against the Fugitive Slave Act only by ignoring established legal doctrine.Footnote ¹¹³ This is because Justice Smith and the Ohio dissenters justified their decisions with a states' rights view of federalism that permitted state courts to reach constitutional decisions independently of federal precedent.Footnote ¹¹⁴ However, although this states' rights doctrine did violate established legal principles, it was not directly related to the courts' rulings against the fugitive act or even mentioned in Chief Justice Whiton's opinion for the Wisconsin Supreme Court. In fact, Chief Justice Whiton went to great lengths to distinguish his opinion from Prigg and other fugitive slave precedents.Footnote ¹¹⁵

Justice Smith and the Ohio dissenters likely employed the doctrine of states' rights only because, by the time they encountered the Fugitive Slave Act, it was clear that the Supreme Court would probably uphold it.Footnote ¹¹⁶ The state judges therefore probably used states' rights as a way to justify their decisions despite nearly certain reversal.Footnote ¹¹⁷ Contrary to the traditional account, these judges were thus forced to violate formal legal principles only because prominent antislavery judges such as Justice McLean had already chosen to uphold the act. The actions of these state court judges therefore demonstrate that an antislavery judge who had the desire to do so could have ruled against the Fugitive Slave Act using traditional legal principles.

A. Justice John McLean

There is no question that John McLean, who served as an Associate Justice of the Supreme Court from 1830 to 1861, was morally opposed to slavery.Footnote ¹²⁰ Before being appointed to the Supreme Court in 1830, and while not a wealthy man, he purchased and freed several slaves with his personal funds.Footnote ¹²¹ Like many Northerners, he was also an ardent opponent of slavery's expansion in the territories.Footnote ¹²² Salmon P. Chase, an important antislavery leader in the antebellum era, called McLean “the most reliable man, on the slavery question, now prominent in either party.”Footnote ¹²³

McLean's judicial decisions also reveal his antislavery credentials. In Ohio v. Carneal, while serving as a Justice of the Ohio Supreme Court in 1817, McLean called slavery “an infringement upon the sacred rights of man” and ruled that any slave whose labor was used for profit in Ohio was made free under the Ohio Constitution.Footnote ¹²⁴ McLean is perhaps best known for his dissent in Dred Scott v. Sanford, in which he argued that blacks could be United States citizens and that Congress could ban slavery in the territories.Footnote ¹²⁵

McLean also issued the sole dissent in Prigg, in which he argued that Pennsylvania's personal liberty law was a valid inquiry into whether the person claimed was in fact a fugitive slave.Footnote ¹²⁶ He argued that there was “no conflict between the law of the state and the law of congress” because the Fugitive Slave Act of 1793 reached only fugitive slaves, whereas the personal liberty law applied to free blacks.Footnote ¹²⁷ He reasoned that because all people in Pennsylvania were presumed to be free, the slave owner had no legal rights under the Fugitive Slave Clause or Fugitive Slave Act of 1793 until he had proven that the alleged fugitive was in fact a slave, using the proper legal procedures.Footnote ¹²⁸

After his dissent in Prigg, however, McLean issued a number of opinions while riding circuit on a federal appellate court that upheld the fugitive slave acts and returned fugitive slaves to bondage. Most of these cases were decided under the old Fugitive Slave Act of 1793,Footnote ¹²⁹ which had been upheld in Prigg. As the conventional view points out, McLean was obligated to follow Prigg as binding precedent and therefore had no discretion to rule against the Fugitive Slave Act of 1793.

McLean also comprehensively upheld the constitutionality of the Fugitive Slave Act of 1850 while riding circuit in Miller v. McQuerry.Footnote ¹³⁰ Prominent antislavery lawyers John Jolliffe and James Birney raised each major argument discussed previously while representing the alleged fugitive.Footnote ¹³¹ Not only did McLean hold that Prigg precluded many of these arguments, such as the lack of congressional power and the right to a trial by jury, but he also defended the Court's reasoning.Footnote ¹³² McLean also adopted the standard response to the arguments against the new role of federal commissioners discussed previously. He argued that commissioners were not Article III judges because they rendered only preliminary determinations, and that the variable fee was merely compensation for the extra work required to remand fugitives.Footnote ¹³³

The traditional explanation for this decision is that legal considerations forced McLean to uphold the act despite his personal views.Footnote ¹³⁴ Although McLean did appeal to positivism to defend his opinion,Footnote ¹³⁵ as explained previously, legal factors such as precedent did not compel a proslavery ruling. Based on the language used in his opinions, his personal correspondence, his eagerness to rule in favor of Southern claimants, and his political affiliations, McLean was probably inclined to uphold the Fugitive Slave Act of 1850 because he believed strict enforcement was necessary to preserve the Union.

Throughout his fugitive slave opinions, McLean extolled the value of the Union and suggested that observance of the Fugitive Slave Act was essential to its preservation. For example, in Miller, McLean explained that the framers “understood the federal and state powers too well, not to know that without some effective [federal] provision on this subject, the superstructure which they were about to rear would soon be overthrown.”Footnote ¹³⁶ Moreover, while urging the jury to follow the provisions of the Fugitive Slave Act in Ray v. Donnell, McLean declared: “The constitution has made us one people, a nation—a great nation; . . . if we shall maintain its principles in the same spirit which led to its formation, our country will be advanced to a height of prosperity . . . . If the guarantees of this fundamental law [including the Fugitive Slave Clause] be disregarded, all our hopes for the future, as regards the prosperity, the greatness, and the glory of our country must perish.”Footnote ¹³⁷ Other cases contain similar appeals to the value of the Union and warn of the risk of its disruption posed by Northerners who disregarded the duty to return fugitive slaves.Footnote ¹³⁸

McLean's view of the importance of the fugitive clause at the constitutional convention lends further insight into his fugitive slave decisions. McLean repeatedly asserted in his opinions that “without a provision on the subject [of fugitive slaves] no constitution could have been adopted.”Footnote ¹³⁹ This was a common belief among nineteenth century jurists.Footnote ¹⁴⁰ In reality, however, the fugitive clause was not an important provision at the convention. It was adopted with little debate, as part of no constitutional deal, and with no serious opposition.Footnote ¹⁴¹ The framers were either too tired to debate the issue or simply did not anticipate its importance.Footnote ¹⁴² McLean and other antebellum jurists probably adopted such a clear historical error only because they understood that the clause had become an essential term of the Union in 1850.Footnote ¹⁴³

McLean's personal letters are also revealing. In one particularly telling letter written in November of 1850, McLean responded to a seemingly hostile minister who argued that returning fugitive slaves to their masters was immoral.Footnote ¹⁴⁴ McLean defended the morality of the new Fugitive Slave Act by arguing that remanding fugitive slaves was necessary to preserve the Union.Footnote ¹⁴⁵ He started with the familiar refrain that “the constitution could not be adopted without the clause requiring the surrender of fugitives from labor. . . . Had this great measure failed, the fruits of the revolution would have been lost.” Calling the Constitution “the parent of many blessings to our country,” he asked, “[i]f we disregard its provisions, how can we of the free states require obedience to it from the South[?]” He finally stated that he would not object to “a modification of [the Fugitive Slave Act of 1850's] objectionable provisions which shall not defeat or impair efficiency in carrying out the provisions of the constitution. [However,] [i]f this object shall not be attained, I have no doubt that the ruin of our government and country will follow.” It thus appears that McLean felt that an effective fugitive law was essential to preserving peace and Union, which outweighed the harm of returning fugitives to slavery.

It is important to stress that, unlike in his judicial opinions, McLean was arguing in moral rather than legal terms in this letter. Although McLean did appeal to positivism, such as claiming that “enforcement of th[e] ‘higher law’ caused more wars and bloodshed in the world, than all other causes united,” it is hard to view this statement as motivating his conclusion. Not only did McLean's letter offer no legal argument for the constitutionality of the Fugitive Slave Act, but he also asserted that, at the time he wrote the letter, he had “scarcely read” the act. It is telling that he was predisposed to support the act before he had even bothered to read its provisions.Footnote ¹⁴⁶ Therefore, although he occasionally appealed to the values of legal positivism, McLean's overriding argument was that adherence to the new fugitive act was desirable as a matter of policy.

The claim that McLean personally supported enforcement of the Fugitive Slave Act is reinforced by the fact that he stretched to enforce its provisions even when not required to do so by law. In Norris v. Newton, a fugitive slave case in which McLean ruled while riding circuit in 1850, John Norris, a Kentucky slave owner, seized Lucy Powell and her three sons as fugitive slaves, without the use of legal process.Footnote ¹⁴⁷ While traveling near South Bend, Indiana, a sheriff, accompanied by a large group of armed men, served Norris with a writ of habeas corpus and, after a brief armed standoff, escorted him to a state court in South Bend. In his return of the writ, Norris justified his detention of the Powells by alleging that he held them as his fugitive slaves. The Powells excepted to the sufficiency of Norris' return—meaning that they claimed that Norris' return, even if taken as true, did not justify their detention—on the grounds that a master could only remove his fugitives after taking them before a judge or magistrate and obtaining a certificate of removal as specified in the Fugitive Slave Act.Footnote ¹⁴⁸

Apparently unaware of the private right of recaption established in Prigg, the state judge ruled in favor of the Powells. Upon hearing this ruling, Norris and his companions grabbed the Powells, drew their weapons, warned the crowd in the courthouse not to approach, and arrested the Powells under Indiana's personal liberty law. The state judge subsequently discharged the Powells on the grounds that Prigg invalidated Indiana's personal liberty law, and a crowd escorted them out of the city. Rather than pursue the Powells or attempt to obtain a certificate of removal, Norris sued the Powells' attorney and several others in federal court for the loss of his slaves.Footnote ¹⁴⁹

In his charge to the jury, McLean bent both the law and the facts to ensure that the jury imposed severe financial penalties on the citizens of South Bend who had aided the Powells.Footnote ¹⁵⁰ In a questionable statement of law, McLean instructed the jury that “the discharge of the fugitives by the judge was void, and, consequently, can give no protection to those who acted under it.”Footnote ¹⁵¹ McLean reached this conclusion by reasoning that, in failing to deny Norris' claim of ownership in their exception to the sufficiency of Norris's return of the writ, the Powells had admitted to being his slaves. As a master has the right to arrest and hold his slaves, the state judge “could exercise no further jurisdiction in this case.”Footnote ¹⁵² McLean therefore ultimately concluded that any person who “aided, by words or actions, the movement which resulted in the escape of the fugitives” was liable even if they were merely enforcing the orders of the state court.

The state court's orders, however, at least arguably should have shielded the defendants from liability. The weight of nineteenth-century legal authority seems to indicate that an order from a court of valid subject matter and personal jurisdiction was a conclusive defense to any suit arising from its enforcement, even if the decision was later found to be erroneous.Footnote ¹⁵³ Although McLean couched his ruling in terms of jurisdiction, the Powells' supposed admission went to the merits of the case rather than the court's power to adjudicate the dispute. McLean actually admitted that the court had jurisdiction by stating that the state judge had the power to issue the writ of habeas corpus and discharge the prisoners if the master presented insufficient proof.Footnote ¹⁵⁴ The Powells' admission perhaps should have immediately resolved the case in Norris' favor, but it is hard to see how it could have defeated the state court's power to render a judgment. Moreover, Indiana law was not even clear on the issue of whether a fact not refuted in an exception to a return of habeas corpus should be treated as an admission.Footnote ¹⁵⁵ Consequently, McLean could have instructed the jury that the state court's orders, although erroneous, served as a complete defense.

McLean also presented a critical factual issue in a biased manner. McLean went out of his way to discredit the Powells' claim to freedom based on principles of interstate comity. By the 1850s it was established law in Kentucky, Norris's home state, that a slave who was permitted by his master to enter a free state was liberated under its laws.Footnote ¹⁵⁶ Credible evidence was presented at trial that Norris had allowed the Powells to raise their own crops and sell them in Indiana, including admissions made by Norris to citizens of South Bend, in order to show that he was a kind master.Footnote ¹⁵⁷ While commenting on the evidence, however, McLean made it clear that he thought the evidence was insufficient to support the Powells' claim.Footnote ¹⁵⁸

In a mixed issue of law and fact, McLean also failed to allow the jury to consider whether Norris' custody of the Powells complied with the requirements of Prigg. Under Prigg, a slave owner could reclaim a fugitive without the aid of legal process only if done “without any breach of the peace or any illegal violence.”Footnote ¹⁵⁹ Instead of instructing the jury on this issue, McLean accepted Norris's assertion that the Powells were willing to peacefully return to slavery at face value despite substantial evidence to the contrary.Footnote ¹⁶⁰ Moreover, McLean completely ignored the armed confrontations that occurred both when Norris was initially served with the writ of habeas corpus and when the judge announced his decision. Any of these incidents perhaps could have been found to constitute a breach of the peace, thus negating Norris' private right of recaption.Footnote ¹⁶¹

In Norris, McLean thus stretched both the law and the facts to insure that the jury rendered a verdict that both appeased the Southern claimant and discouraged Northerners from lending aid to fugitive slaves in the future, including legal representation. Following the conventional view, one commentator concludes that McLean “did not choose between liberty and slavery,” but rather was forced to choose between liberty and formal principles of law.Footnote ¹⁶² As explained previously, however, formal principles of law favored freedom at least as much as slavery. In fact, McLean seems to have distorted formal legal principles in order to rule in favor of the Southern claimant. McLean's decision therefore must have been influenced by non-legal considerations. Given his opposition to slavery, McLean probably took into consideration the political consequences of a Supreme Court justice ruling against the Southern claimant.

McLean's approval of the Fugitive Slave Act should not be surprising given his political affiliations. Referred to as a “Politician on the Supreme Court” by his biographer, McLean maintained presidential ambitions throughout his life.Footnote ¹⁶³ In 1848 McLean identified with the Whig Party and strongly desired the Whig presidential nomination.Footnote ¹⁶⁴ The Whig Party was split on the subject of the Fugitive Slave Act in the early 1850s, but the majority favored supporting it to maintain sectional unity.Footnote ¹⁶⁵ When the Republican Party formed in the mid 1850s, McLean joined its ranks and received strong conservative support for the Republican presidential nomination in 1856.Footnote ¹⁶⁶ And although public opinion in the North became much more hostile to the Fugitive Slave Act after the passage of the Kansas–Nebraska Act in 1854,Footnote ¹⁶⁷ the national Republican Party never officially called for its nullification or repeal. In fact, Lincoln, himself a moderate Republican, pledged to see it enforced.Footnote ¹⁶⁸ McLean's desire to see the Fugitive Slave Act enforced because of considerations of union therefore fit well with the moderate elements of the political parties that he hoped to lead.

There is one piece of evidence, however, that seems to support the traditional view that McLean upheld the Fugitive Slave Act of 1850 for legal reasons: his dissent in Prigg when the Supreme Court first interpreted the Fugitive Slave Clause. It could be claimed that McLean's dissent demonstrates that he opposed the fugitive act as a matter of first impression but was forced to later uphold the act because of stare decisis.Footnote ¹⁶⁹ There are at least two reasons to think, however, that McLean may have been influenced by policy considerations despite his dissent in Prigg.

First, it is important to recognize the limited nature of McLean's dissent. At no point did he question the constitutionality of the Fugitive Slave Act of 1793; instead, he merely refused to recognize a master's right to seize an alleged fugitive without legal process in violation of a state law designed to prevent kidnapping.Footnote ¹⁷⁰ In fact, McLean rejected one of the most persuasive arguments against the fugitive slave acts by agreeing with the Court that Congress was given the power to legislate under the Fugitive Slave Clause.Footnote ¹⁷¹ Moreover, whereas Story had cast doubt on whether Congress could enlist state officers to enforce the act, McLean unambiguously stated that “in the case of fugitives from labor and from justice, they have the power to do so.”Footnote ¹⁷² If McLean's position on the enlistment issue had prevailed, the North's personal liberty laws, which withdrew state assistance in the rendition process, would have been invalidated. Because McLean's dissent was so limited, his subsequent support for the Fugitive Slave Act of 1850 was not a major change in opinion.

Second, McLean's dissent in Prigg, written in 1842, was written in a very different political context than were his later fugitive slave opinions. Sectional tensions had reached a new height in 1850, and the fugitive slave issue was a major point of contention. Because the South threatened disunion in the Georgia Platform if the new fugitive act were not strictly enforced, McLean was probably much more impressed with the political significance of the issue in the early 1850s. As a prominent public official who spent time in the nation's capital and had strong political ambitions, McLean was surely well aware of this political reality. McLean even received a letter from an acquaintance from Charleston, South Carolina, who warned that “if the agitation is continued, the days of the republic are numbered.”Footnote ¹⁷³ In response, McLean asserted that he had “observed with great anxiety, the rise in progress of this agitation [on slavery].”Footnote ¹⁷⁴

B. Chief Justice Lemuel Shaw

Lemuel Shaw, who served as the Chief Justice of the Supreme Judicial Court of Massachusetts from 1830 to 1860, is one of the most famous and influential state judges in United States history.Footnote ¹⁷⁵ His influence on United States slavery jurisprudence was no exception. In the case of Commonwealth v. Aves, Shaw, setting an antislavery precedent that would be adopted throughout much of the North, ruled that slaves voluntarily brought into Massachusetts “for any temporary purpose of business or pleasure” were entitled to their freedom.Footnote ¹⁷⁶ He reasoned that slavery, “being contrary to natural right, and effected by local law, is dependant upon such local law for its existence and efficacy.”Footnote ¹⁷⁷ His slavery jurisprudence was shaped by his belief that slavery was “utterly irreconcilable with any notions of natural justice” and “an evil of great magnitude.”Footnote ¹⁷⁸

Alhough Shaw was an avowed opponent of slavery, he consistently upheld the provisions of the fugitive slave acts and returned fugitives to bondage.Footnote ¹⁷⁹ According to his biographer, Leonard Levy, “Shaw felt duty bound to enforce the Constitution as law regardless of whatever moral twinges he may have experienced” and regarded the return of runaways as a “legal necessity.”Footnote ¹⁸⁰ Shaw's explanation of his own decisions therefore conforms to the conventional account of a judge forced to uphold proslavery legislation in order to be faithful to his judicial role.

However, as Levy explains: “There exists no statement from Shaw that he, like Webster, Choate, and Curtis, approved of the Fugitive Slave Law as an expedient to cement sectional differences that menaced the Union; yet there is nothing in the cast of the man's mind, temperament, or associations suggesting that his judicial obligation to enforce Congressional law necessarily conflicted with his personal opinions.”Footnote ¹⁸¹ In fact, there is much reason to think that Shaw personally approved of the Fugitive Slave Act as a matter of public policy.

Shaw's opinion in Sims' Case, in which he upheld the constitutionality of the Fugitive Slave Act of 1850 against an exhaustive attack by Robert Rantoul, is instructive.Footnote ¹⁸² Rather than merely justifying his decision with legal positivism and expressing his regret at being forced to uphold the act, he defended the country's policy regarding fugitive slaves as necessary to preserve the Union. Shaw explained: “The constitution, therefore, is not responsible for the origin or continuance of slavery. The provision it contains [the Fugitive Slave Clause] was the best adjustment which could be made of conflicting rights and claims, and was absolutely necessary to effect what may now be considered as the general pacification, by which harmony and peace should take the place of violence and war.”Footnote ¹⁸³

Unpacking this passage reveals three of Shaw's fundamental beliefs on fugitive slaves. First, Shaw, like most prominent jurists of the antebellum era, believed that the fugitive clause was “absolutely necessary” for the formation of the Union. As explained previously, it is likely that this historical error was reinforced, and perhaps motivated, by an awareness that the fate of the Union did depend on enforcement of the fugitive clause in 1850.Footnote ¹⁸⁴ Second, he reveals a high valuation of the Union in asserting that it was necessary to avoid “violence and war” between the states.

Third, by arguing that the fugitive clause was the “best adjustment which could be made” between the interests of the free and slave states, Shaw seems to be asserting that, given the existence of slavery at the time of the founding, the fugitive clause was a normatively desirable provision at that time. Given the rising sectional tensions in the 1850s that made “violence and war” between the states much more likely than in the eighteenth century, there is little reason to believe that Shaw would have changed his mind about the desirability of the Fugitive Slave Clause. Although support for the Fugitive Slave Clause is not necessarily the same as support for the Fugitive Slave Act of 1850, it does reveal that Shaw believed that the duty to return fugitive slaves was a necessary compromise with the South.

Shaw's extra-judicial statements also support the conclusion that he approved of the Fugitive Slave Act as a matter of policy. Although Shaw's personal papers reveal no extra-judicial statement on the issue during his service as a judge, an article in the North American Review, published before his term on the Court, lends rare insight into Shaw's moderate antislavery viewpoint. In this article, Shaw asserted that “[s]lavery, though a great and acknowledged evil, must be regarded, to a certain extent, as a necessary one, too deeply interwoven into the texture of society to be wholly or speedily eradicated.”Footnote ¹⁸⁵ He thus argued against immediate abolition and counseled that the government should instead focus on “attainable good” and “not blindly overlook the only practicable means of arriving at it.”Footnote ¹⁸⁶ Although he did not directly address the issue of fugitive slaves, from these passages it is clear that Shaw favored a moderate antislavery approach that would not threaten the established order. It is therefore reasonable to infer that, as a matter of policy, he might have supported the duty to return fugitive slaves as a necessary condition of union with the slave states, just as he viewed slavery itself as a necessary institution in the South to prevent violence and social disruption.

Soon after Shaw retired from the Court, at the height of the secession crisis in 1860, he signed an appeal to the people of Massachusetts, asking that they repeal the state's personal liberty law. Shaw and his co-signers urged repeal of the law and compliance with the Fugitive Slave Act, claiming that they acted “under [their] own love of right; under [their]own sense of the sacredness of compacts; [and] under [their] own conviction of the inestimable importance of social order and domestic peace . . . .”Footnote ¹⁸⁷ Shaw thus advocated adherence to the Fugitive Slave Act as a matter of policy in order to stop the threat of Southern secession. It is reasonable to infer that he may have supported the act during the turbulent 1850s for the same reason.

Moreover, like McLean, Shaw not only upheld the Fugitive Slave Act on constitutional grounds, but he also stretched to reach proslavery results in specific fugitive cases. In 1851, just months after the passage of the Fugitive Slave Act, federal officials arrested Frederick Jenkins, also known as Shadrach, as a fugitive slave in Boston, a city that had yet to remand a single fugitive slave to the South. Just as the Southern claimant wished to use this as a test case for enforcement of the Fugitive Slave Act, Richard Henry Dana and other prominent antislavery lawyers in Boston hoped to use it as a test case for the act's constitutionality.Footnote ¹⁸⁸ After Shadrach was placed in federal custody at the Boston courthouse, Dana drafted writs of habeas corpus and de homine replegiando and personally delivered them to Chief Justice Shaw.

Shaw denied Dana's attempt to challenge the act by insisting on unnecessarily strict adherence to procedural formalities. According to Dana, Shaw at first refused to act on the writs because the petition was not personally signed by Shadrach.Footnote ¹⁸⁹ After Dana pointed out that the statute did not require a signature, Shaw protested that there was no evidence that the petition had been approved by Shadrach.Footnote ¹⁹⁰ After refusing to tell Dana what proof of authority was required, Shaw next denied the writs because the petition showed “that the man is in legal custody of a United States marshal.”Footnote ¹⁹¹ To this, Dana correctly replied that the government has the burden of proving legal detention, and therefore the fact of custody could not defeat the writs. Finally, Shaw denied the writs because “the petition should contain a copy of the warrant, or state that a copy had been applied for and could not be had.”Footnote ¹⁹² Shortly after Shaw's refusal to grant the writs, Shadrach was forcibly rescued from the marshals' custody and escaped to the North, rendering the case moot.

Shaw's actions indicate that he may have preferred to deny Shadrach's claim to freedom rather than antagonize sectional relations. It is, of course, possible that Shaw simply disliked Dana for some unrelated reason or that Dana inaccurately reported the encounter. However, Shaw's shifting excuses, inaccurate and prejudicial statements of law, and strict insistence on procedural formalities all provide at least some evidence that the Chief Justice may not have been inclined to question the fugitive's rendition.Footnote ¹⁹³ Judges often use procedural ruling to reach results with which they agree.Footnote ¹⁹⁴ By going beyond the requirements of the law to rule against Shadrach, Shaw may have denied at least one fugitive's claim to freedom for non-legal reasons.

Although obviously a biased party, Dana summed up his encounter with Shaw by writing:

As a conservative or “Cotton” Whig and strong supporter of Daniel Webster,Footnote ¹⁹⁶ Shaw's support for the Fugitive Slave Act should come as no surprise. Although Webster condemned slavery as a moral and political evil, he was above all a champion of the Union. In his famous Seventh of March speech on the Compromise of 1850, in which he claimed that his “sole motive” was “the preservation of the Union,”Footnote ¹⁹⁷ Webster emerged as the preeminent champion of the Fugitive Slave Act in the North. He asserted that, on the subject of fugitive slaves, “as a question of morals and a question of conscience, . . . the South is right, and the North is wrong.”Footnote ¹⁹⁸ He therefore pledged “to support, with all its provisions, to the fullest extent” the Fugitive Slave Act.Footnote ¹⁹⁹ Moreover, Whig support for the Fugitive Slave Act in Boston was not limited to politicians, as Supreme Court Justice Benjamin R. Curtis, also a Bostonian Cotton Whig and strong supporter of Webster, publicly defended both the constitutionality and morality of the Fugitive Slave Act.Footnote ²⁰⁰