1. Finkelman, Paul, “Making a Covenant with Death: Slavery and the Constitutional Convention,” in Beyond Confederation: Origins of the Constitution and American National Identity, ed. Beeman, Richard, Botein, Stephen, and Carter, Edward C. II (Chapel Hill: University of North Carolina Press, 1987), 188–225Google Scholar; and Wiecek, William M., “‘The Blessings of Liberty': Slavery in the American Constitutional Order,” in Slavery and Its Consequences: The Constitution, Equality, and Race (Washington, DC: American Enterprise Institute for Public Policy Research, 1988), 23–44Google Scholar. These arguments followed two decades of revisionist scholarship that had moved to place slavery at the center of the American constitutional order. See Higginbotham, A. Leon, In the Matter of Color: The Colonial Period (New York: Oxford University Press, 1978)Google Scholar; Lynd, Staughton, Class Conflict, Slavery, and the United States Constitution: Ten Essays (Westport, CT: Greenwood Press, 1980, c. 1967), 167–213Google Scholar; and Robinson, Donald L., Slavery in the Structure of American Politics, 1765–1820 (New York: Norton, 1979)Google Scholar.

2. Fehrenbacher, Don E., The Slaveholding Republic: An Account of the United States Government's Relations to Slavery (New York: Oxford University Press, 2001)Google Scholar; Freehling, William W., “The Founding Fathers and Slavery,” The American Historical Review 77 (1972): 81–93CrossRefGoogle Scholar; Maltz, Earl M., “Slavery, Federalism, and the Structure of the Constitution,” The American Journal of Legal History 36 (1992): 466–98CrossRefGoogle Scholar; and Maltz, Earl M., “The Idea of the Proslavery Constitution,” Journal of the Early Republic 17 (1997): 37–59CrossRefGoogle Scholar. More recent arguments have pointed to the use of slavery by political actors to buttress other political positions. See Mason, Matthew, “Slavery and the Founding,” History Compass 4 (2006): 943–55CrossRefGoogle Scholar. Earl M. Maltz makes the case for the Supreme Court's accommodation of both sides on the subject of slavery in Prigg v. Pennsylvania. See Maltz, Earl M., Slavery and the Supreme Court, 1825–1861 (Lawrence, KS: University Press of Kansas, 2009)Google Scholar.

3. On the power of public opinion and, therefore, democratic processes to correct government, see Sheehan, Colleen A., “Madison v. Hamilton: The Battle over Republicanism and the Role of Public Opinion,” The American Political Science Review 98 (2004): 405–24CrossRefGoogle Scholar; and Sheehan, Colleen A., “Public Opinion and the Formation of Civic Character in Madison's Republican Theory,” The Review of Politics 67 (2005): 37–48Google Scholar. Sheehan argues that Madison privileged public opinion as a means of guiding the actions of political actors in the executive and legislative branches. This allowed venues for public expressions about constitutional disputes.

4. On the subject of popular sovereignty and democratic constitutionalism, see Fritz, Christian G., American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (New York: Cambridge University Press, 2008)Google Scholar; Kramer, Larry, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004)Google Scholar; Moore, Wayne D., Constitutional Rights and Powers of the People (Princeton: Princeton University Press, 1996)Google Scholar; and Rowe, Gary D., “Constitutionalism in the Streets,” Southern California Law Review 78 (2004): 401–56Google Scholar. For the congressional role in constitutional disputes, see Currie, David P., The Constitution in Congress: The Federalist Period 1789–1801 (Chicago: University of Chicago Press, 1997)Google Scholar; Currie, David P., The Constitution in Congress: The Jeffersonians, 1801–1829 (Chicago: University of Chicago Press, 2001)Google Scholar; Currie, David P., The Constitution in Congress: Democrats and Whigs, 1829–1861 (Chicago: University of Chicago Press, 2005)CrossRefGoogle Scholar; Devins, Neal and Whittington, Keith, “Introduction,” in Congress and the Constitution, ed. Devins, Neal and Whittington, Keith (Durham: Duke University Press, 2005), 1–17CrossRefGoogle Scholar; and Quitt, Martin H., “Congressional (Partisan) Constitutionalism: The Apportionment Act Debates of 1842 and 1844,” Journal of the Early Republic 28 (2008): 627–51CrossRefGoogle Scholar. On the inability of courts (and the Supreme Court) to exercise a muscular judicial supremacy, see Wood, Gordon S., “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” Washington & Lee Law Review 56 (1999): 787–808Google Scholar. For an empirical study showing that judicial review before Marbury v. Madison was practiced largely in departmentalist terms (i.e., in the judicial department defending its institutional prerogatives against legislative encroachment), see Treanor, William Michael, “Judicial Review before Marbury,” Stanford Law Review 58 (2005): 455–561Google Scholar.

5. I distinguish here my understanding of constitutional settlement from that of Whittington, Keith E., Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton: Princeton University Press, 2007) 17–21Google Scholar. Whittington identified two major problems for simplistic theories that assume judicial supremacy is inherent in our system: first, such theories must be able to explain robust constitutional interpretation outside of the Court; second, they must be able to account for the political foundations of judicial supremacy. He saw supremacy in constitutional interpretation as historically shifting between the presidency and the Supreme Court based on the relative strength of each branch of government. The empirical evidence offered by an examination of the fugitive slave clause suggests a different model for the antebellum era. The authority of Congress in determining constitutional meaning was paramount, but Congress nonetheless admitted of robust outside interpretation. It is notable that I have relied on Whittington's own work in devising this interpretation. See Whittington, Keith E., “An ‘Indispensable Feature'? Constitutionalism and Judicial Review,” New York University Journal of Legislation & Public Policy 6 (2002): 21–33Google Scholar; Whittington, Keith E., “The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change,” Publius 26 (1996): 1–24CrossRefGoogle Scholar; and Whittington, Keith E., “The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions,” Journal of Politics 63 (2001): 365–91CrossRefGoogle Scholar.

6. James Innes to Beverly Randolph, June 20, 1791, American State Papers: Miscellaneous, Washington: Gales and Seaton, 1834 1:41.

7. Edmund Randolph to George Washington, July 20, 1791, American State Papers: Miscellaneous, 1:42.

8. Ibid., 1:43.

9. Morris, Thomas D., Free Men All: The Personal Liberty Laws of the North, 1780–1861 (Baltimore: Johns Hopkins University Press, 1974), 20–21Google Scholar.

10. 1 Stat. 302 (1793).

11. Paul Finkelman interprets the Fugitive Slave Act as “weak” on the return of fugitives from justice and “strong” on the return of fugitive slaves. See Finkelman, Paul, “The Kidnapping of John Davis and the Adoption of the Fugitive Slave Law of 1793,” The Journal of Southern History 56 (1990): 420–21CrossRefGoogle Scholar. He draws this interpretation reasonably from the success of slaveholders in eliminating protections for free blacks from the final bill, and from the fact that there was no federal compulsion of the extradition of fugitives from justice, whereas federal courts were given jurisdiction over fugitive slave rendition. Although reasonable, this interpretation is weak, if only because federal courts were scant during that period and had no available law enforcement infrastructure. There is no evidence, on the other hand, that this constitutional process was an assertion of plenary authority by Congress to control fugitive slave rendition, as argued in Kaczorowski, Robert J., “Congress's Power to Enforce Fourteenth Amendment Rights: Lessons from Federal Remedies the Framers Enacted,” Harvard Journal on Legislation (Winter 2005): 187–283, at 192Google Scholar.

12. Novak, William J., “The Legal Transformation of Citizenship in Nineteenth-Century America,” in The Democratic Experiment: New Directions in American Political History (Princeton: Princeton University Press, 2003), 85–119Google Scholar.

13. House Journal, 4th Cong., 1st sess., 482 (March 25, 1796).

14. Annals of Congress, 4th Cong., 1st sess., 1025 (April 18, 1796).

15. The debate can be found in Annals of Congress, 4th Cong., 2nd sess., 1730–37 (December 29, 1796).

16. Ibid., 1767 (January 2, 1797).

17. Swanwick made clear that he thought differently of the matter, but was outvoted on the committee. He did not indicate whether the committee was further split. Annals of Congress, 4th Cong., 2nd sess., 1896 (January 18, 1797).

18. See Novak, William J., The People's Welfare Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 9–17Google Scholar and Tomlins, Christopher L., Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993), 47–59CrossRefGoogle Scholar.

19. For a list of laws passed in the states north of the Mason-Dixon line, see Morris, Free Men All, Appendix, 219–22. Virginia's antikidnapping law can be found in Tate, Joseph, Digest of the Laws of Virginia: Which Are of a Permanent Character and General Operation: Illustrated by Judicial Decisions to which Is Added an Index of the Names of the Cases in the Virginia Reporters, 2nd ed. (Richmond, VA: Smith and Palmer, 1841), 221Google Scholar, The Making of Modern Law, Gale, Cengage Learning <http://galenet.galegroup.com/servlet/MOML?af=RN&ae=F100098295&srchtp=a&ste=14> (November 30, 2010). Delaware's 1787 “Act to prevent the exportation of slaves” and its 1793 “Act to punish the practice of kidnapping free Negroes and free Mulattoes” can be found in Laws of the State of Delaware (Samuel and John Adams, 1797), 2: 884–88 and 1093–94, Google Books http://books.google.com/books?id=HMtJAQAAIAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false (November 30, 2010). A digest of the antikidnapping laws can be found in Hurd, John Codman, The Law of Freedom and Bondage (1858; repr. Boston: Little, Brown, 1968), 2:5–6, 74–75Google Scholar.

20. A similar case arose when Congress heard the petition of North Carolina free blacks who were being re-enslaved by force. Madison and others argued consistently that status was to be determined by the states and that the federal government had no role in the matter. Annals of Congress, 4th Cong., 2nd sess., 2020 (January 30, 1797).

21. For the 1799 report on kidnapping, see Morris, Free Men All, 32.

22. Annals of Congress, 7th Cong., 1st sess., 336 (December 18, 1801). The bill was first discussed on January 15, 1802. See Ibid., 423. In requiring free people of color to carry passes attesting to their status, the bill hewed to the tradition of pass laws common in colonial America and still in use in some states. See Tomlins, Christopher L., Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (New York: Cambridge University Press, 2010), 268CrossRefGoogle Scholar, 270 n. 129, 323; and Brophy, Alfred L. “Law and Indentured Servitude in Mid-Eighteenth Century Pennsylvania.” Willamette Law Review 28 (Winter, 1991): 69–126Google Scholar.

23. House Journal, 7^th Cong., 1^st sess., 53–54 (January 18, 1802).

24. “An Act to regulate black and mulatto persons,” c. 4, sec. 7, Acts of the State of Ohio, 1803, 2: 63–66 (January 5, 1804); “An Act to Prevent the Kidnapping of Free people of Colour,” c. 96, Laws of the State of New York 1808, 300 (April 1, 1808). For Indiana's law, see “An act to prevent manstealing,” approved December 30, 1816, reprinted in Middleton, Stephen, The Black Laws in the Old Northwest: A Documentary History (Westport, CT: Greenwood Press, 1993), 228Google Scholar. These laws were collected and reprinted faithfully in Hurd, The Law of Freedom and Bondage, 2: 5–6, 37–38, 74–75.

25. “An act, to regulate black and mulatto persons,” c. 45, sec. 7 “Manstealing,” Laws of the State of Mississippi, 1820, 68; and “An Act More effectually to protect free persons of colour, and to point out the mode of trying the right of freedom,” Acts of the General Assembly of the State of Georgia 1835, 101–3. See also Hurd, The Law of Freedom and Bondage, 2:5, 74, 106, 146.

26. Glen v. Hodges, 9 Johns. 67 (N.Y., 1812) at 69. This explains, perhaps, why the plaintiff maintained an action of trespass vi et armis rather than the action of debt allowed by section 4 of the Fugitive Slave Act of 1793.

27. Ibid., 70.

28. Commonwealth v. Holloway, 2 Serg. & Rawl 305 (Pa., 1816). Although unreported, a United States District Court ruled similarly in 1815 in Kitty's Case. See Neuman, The Transformation of American Abolitionism, 78–79.

29. Wright v. Deacon, 5 Serg. & Rawle, 62 (Pa., 1819).

30. Wright v. Deacon, 63. This contravenes Robert Cover's famous analysis of the ruling as suggesting that a state court could not interpose itself in the rendition process. See Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975), 163Google Scholar.

31. Annals of Congress, 15th Cong., 1st sess., 242–55 (March 9, 1818). See also the remarks of Clagett, Ibid., 826 (January 28, 1818) and the remarks of Whitman, Ibid., 839 (January 30, 1818).

32. Ibid., 827–28 (January 28, 1818).

33. Ibid., 232 (March 6, 1818).

34. Ibid., 245–46 (March 9, 1818).

35. See the remarks of Jonathan Mason of Massachusetts, Ibid., 838 (January 30, 1818).

36. See the remarks of John Holmes of Massachusetts, Ibid., 838 (January 30, 1818), and the remarks of John Rhea, Ibid., 838–39 (January 30, 1818).

37. Ibid., 825 (January 29, 1818).

38. Ibid., 242–55 (March 2, 1818).

39. Hill v. Low, 12 F. Cas. 172 (C.C.E.D., Penn., 1822) (Case No. 6,494). Washington overruled a judge who instructed a jury that the matter of the fugitive's status was for the magistrate rather than the jury to decide. Washington conceded that in the case before him the fact of the fugitive's status was beyond doubt, but it was “misapprehension” that this was “a general principle of law applicable to all cases.”

40. Worthington v. Preston, 30 F. Cas. 645 (C.C.E.D. Pa., 1824) (Case No. 18,055). Status determination was of clear importance to Bushrod Washington, as was a rather strict reading of the Fugitive Slave Act. Washington also took care to distinguish slave-in-transit cases from fugitive cases, holding that Pennsylvania law rather than the Fugitive Slave Act controlled in such cases. See Ex Parte Simmons, 22 F. Cas. 151 (1823). These were all cases in which a broader reading of federal power might have been possible, but Washington nonetheless read the law in accordance with the constitutional settlement.

41. Commonwealth v. Griffith, 19 Mass. 11 (1823), 18–19.

42. Spencer Roane had put forth the argument that habeas corpus proceedings in free states could not be conclusive concerning a slave's status, or they would render the Fugitive Slave Act a nullity; see Lewis v. Fullerson, 1 Rand. 15 (1821). But this was obiter dicta. The case concerned slave transit and conflict of laws, and Roane's written opinion proceeded from the assumption that the subject of judicial proceedings was a slave held lawfully under Virginia law, not a free black kidnapped under cover of the Fugitive Slave Act.

43. “An Act to Prevent Manstealing,” §3, Laws of Indiana, 1816. Reprinted in Middleton, Stephen, The Black Laws in the Old Northwest: A Documentary History (Westport, CT: Greenwood 1993), 228–29Google Scholar.

44. This was arguably a misreading of the case, as the Fugitive Slave Act was not properly before the court in Glen v. Hodges.

45. In re Susan, 23 F. Cas. 444 (C.C.D. Ind. 1818) (No. 13,632).

46. “Report of the Judiciary Committee of the House for the State of Indiana on the Governor of Indiana and the Acting Governor of Kentucky.” Reprinted in Middleton, The Black Laws in the Old Northwest, 228–29.

47. “An Act to give effect to the provisions of the constitution of the United States, relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping,” Acts of the General Assembly and the Commonwealth of Pennsylvania, 1825, 150–55 (March 25, 1826).

48. “Miscellany, Legislature of Pennsylvania, Speech of Wm. M. Meredith,” Aurora and Franklin Gazette (Philadelphia, PA), February 24, 1826, 19th Century U.S. Newspapers Database (hereafter 19th Century U.S. Newspapers) Gale, Cengage Learning, http://infotrac.galegroup.com/itw/infomark/532/950/97997372w16/purl=rc1_NCNP_0_GT3007138163&dyn=26!ehelp?sw_aep=atla29738 (July 20, 2010),

49. Morris, Free Men All, 53; and Richard S. Newman, The Transformation of American Abolitionism: Fighting Slavery in the Early Republic (Chapel Hill: University of North Carolina Press, 2002) 44–46.

50. These legislative actions are thoroughly covered in Morris, Free Men All, 52–56.

51. Newman, The Transformation of American Abolitionism, 152–75.

52. On the AASS and its reforming mission, see Davis, David Brion, “The Emergence of Immediatism in British and American Antislavery Thought,” Mississippi Valley Historical Review 49 (1962): 209–30CrossRefGoogle Scholar. Scholarship since Davis has worked to locate the deeper roots of immediatism in the Early Republic. See Blight, David W., “Perceptions of Southern Intransigence and the Rise of Radical Antislavery Thought, 1816–1830,” Journal of the Early Republic 3 (1983): 139–63CrossRefGoogle Scholar; Loveland, Anne C., “Evangelicalism and ‘Immediate Emancipation’ in American Antislavery Thought,” The Journal of Southern History 32 (1966): 172–88CrossRefGoogle Scholar; and Wyatt-Brown, Bertram, “Prelude to Abolitionism: Sabbatarian Politics and the Rise of the Second Party System,” The Journal of American History 58 (1971): 316–41CrossRefGoogle Scholar. On the ways in which popular notions of popular constitutionalism informed the debate over abolitionist pamphlets, see DeLombard, Jeannine Marie, Slavery on Trial: Law, Abolitionism, and Print Culture (Chapel Hill: University of North Carolina Press, 2007), 1–34Google Scholar.

53. On the postal campaign, see Wyatt-Brown, Bertram, “The Abolitionists' Postal Campaign of 1835,” The Journal of Negro History 50 (1965): 227–38CrossRefGoogle Scholar; John, Richard R., Spreading the News: The American Postal System from Franklin to Morse (Cambridge: Harvard University Press, 1995), 257–80Google Scholar; Wiecek, William M., The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca: Cornell University Press, 1977), 172–73Google Scholar; and Wyly-Jones, Susan, “The 1835 Anti-Abolition Meetings in the South: A New Look at the Controversy over the Abolition Postal Campaign,” Civil War History 47 (2001): 289–309CrossRefGoogle Scholar. On the “gag rule” see Frederick, David C., “John Quincy Adams, Slavery, and the Disappearance of the Right of Petition,” Law and History Review 9 (1991): 113–55CrossRefGoogle Scholar. On the straining of comity, see Finkelman, Paul, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981)Google Scholar.

54. Finkelman, Paul, “Prelude to the Fourteenth Amendment: Black Legal Rights in the Antebellum North,” Rutgers Law Journal 17 (1986): 415–82Google Scholar. This did not necessarily mean good news for Northern free blacks, who contended with an increasingly self-conscious white-supremacist order. See Stewart, James Brewer, “The Emergence of Racial Modernity and the Rise of the White North, 1790–1840,” Journal of the Early Republic 18 (1998): 181–217CrossRefGoogle Scholar; and Stewart, James Brewer, “Modernizing ‘Difference': The Political Meanings of Color in the Free States, 1776–1840,” Journal of the Early Republic 19 (1999): 691–712CrossRefGoogle Scholar.

55. Johnson v. Tompkins, 13 F. Cas. 840 (C.C.E.D. Pa. 1833) (No. 7,416) at 848.

56. Report of the Case of Charles Brown, A Fugitive Slave, Owing Labour and Service to William C. Drury, of Washington County, Maryland (Pittsburgh: Alexander Jaynes, 1835)Google Scholar, reprinted in Finkelman, Paul, ed., Fugitive Slaves and American Courts: The Pamphlet Literature (New York: Garland, 1988), 1:41–95Google Scholar.

57. Sturges v. Crowninshield, 17 U.S. 122 (1819).

58. Jack v. Martin, 12 Wend. 311 (1834), 317.

59. Ibid., 319.

60. See, for example, Finkelman, Paul, “Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism,” Supreme Court Historical Review (1994): 247–94CrossRefGoogle Scholar; and Holden-Smith, Barbara, “Lords of Lash, Loom, and Law: Justice Story, Slavery, and Prigg v. Pennsylvania,” Cornell Law Review 78 (1993) 1086–151Google Scholar.

61. In re Martin, 16 F. Cas. 881 (undated) (No. 9,154) at 884. Most likely decided between 1834 and 1835.

62. Bryan Camp, “Law and Politics and Judicial Reform in the 1846 New York Constitutional Convention” (paper presented at the 25th Annual Conference on New York State History, Skidmore College, Saratoga Springs, NY, June 10–12, 2004).

63. Jack v. Martin, 14 Wend. 507 (N.Y. C.C.E. 1835) at 528. This is at variance with Paul Finkelman's interpretation of Chancellor Walworth's opinion as “categorically” denying the constitutionality of the Fugitive Slave Act. This is not quite the case. Walworth was responding to the question of national preemption and the Supremacy Clause, and his reading of the Constitution spoke more to an argument in favor of the old constitutional settlement regarding fugitive slaves than it did to the question of the constitutionality of a law of Congress. Finkelman, “Story Telling on the Supreme Court,” 271–72.

64. State v. Sheriff of Burlington (1836), reprinted in Finkelman, Paul, ed., Slavery, Race, and the American Legal System 1700–1872: Fugitive Slaves and American Courts (New York: Garland, 1988), 1:97–104Google Scholar. Although unreported, the decision was circulated among abolitionists and reprinted as a pamphlet. It can be found in Finkelman, Fugitive Slaves and American Courts 1:97–103. See Also Finkelman, Paul, “State Constitutional Protections of Liberty and the Antebellum New Jersey Supreme Court: Chief Justice Hornblower and the Fugitive Slave Law,” Rutgers Law Journal 23 (1992)Google Scholar.

65. The kidnappers were discovered and jailed in 1839, and tried the following year. “From the Boston Post,” The North American (Philadelphia), October 21, 1839, 19th Century Newspapers http://infotrac.galegroup.com/itw/infomark/524/745/190248470w16/purl=rc1_NCNP_0_GT3007853588&dyn=10!lnk_2+401+NNWA+GT3007853588?sw_aep=atla29738 (July 20 2010); and “By the Eastern Mail,” Pennsylvania Inquirer and Daily Courier (Philadelphia), February 01, 1840, 19th Century U.S. Newspapers http://infotrac.galegroup.com/itw/infomark/288/535/190247635w16/purl=rc1_NCNP_0_GT3010971410&dyn=16!lnk_2+401+NNWA+GT3010971410?sw_aep=atla29738 (July 20, 2010).

66. Prigg v. Pennsylvania, 41 U.S. 539 (1842), 592.

67. Ibid., 600.

68. Ibid., 611.

69. Ibid., 621. Finkelman, “Story-Telling on the Supreme Court,” 267–73. Finkelman's assessment that Story deliberately misread the precedents is sound.

70. Prigg v. Pennsylvania 41 U.S. 539 (1842), 612.

71. Ibid., 623.

72. Ibid., 617.

73. Ibid., 625.

74. Neither Taney nor Daniel found much solace in Story's claim that the state might arrest fugitive slaves under the auspices of their police power. As Taney pointed out, the police power might not necessarily extend to a fugitive “travelling peaceably along the public highway [in company with a white man]. And it could hardly be maintained that the arrest and confinement of the fugitive in the public prison, under such circumstances, until he could be delivered to his owner, was necessary for the internal peace of the state; and therefore a justifiable exercise of its powers of police.” Prigg v. Pennsylvania, 633. Daniel concurred in this point. Ibid., 658.

75. Ibid., 627. Thompson's opinion: Ibid., 633.

76. Paul Finkelman claims that Story had a solid majority on every point. See Finkelman, Paul, “Sorting out Prigg v. Pennsylvania,” Rutgers Law Journal 24 (1992): 605–66Google Scholar, at 634. He stands in tension with Burke, Joseph C., “What Did the Prigg Decision Really Decide?” The Pennsylvania Magazine of History and Biography 93, (1969): 73–85Google Scholar. The disagreement rests primarily over how to count the two silent justices in the case.

77. Paul Finkelman, “Story Telling on the Supreme Court,” 256–59. For a more favorable view of Story, see Newmyer, R. Kent, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985)Google Scholar. All historians have emphasized Story's judicial nationalism. Certainly, part of Story's opinions regarding slavery were gambits to raise the authority of the Supreme Court as an impartial body that slaveholders could trust to carry out the Constitution's “sacred bargains” regarding slavery. Story had gone out of his way to do this in slavery cases. See Smith, “Lords of Lash, Loom, and Law,” 1101–16. Earl M. Maltz challenges this interpretation, instead arguing that Prigg was slavery neutral rather than proslavery. See Maltz, Slavery and the Supreme Court, 109–10. This argument depends upon a reading of the Fugitive Slave Act as accommodating Northern interests, and on reading Prigg along with U.S. v. Amistad 40 U.S. 518 (1841) and Groves v. Slaughter 40 U.S. 449 (1841) as part of a judicial program. This reading downplays the union of judicial nationalism in Story's opinion with a proslavery result.

78. Paul Finkelman contends that Taney misread Story's opinion. See Finkelman, “Prigg v. Pennsylvania and Northern State Courts: Anti-Slavery Use of a Pro-Slavery Opinion,” Civil War History 25 (March 1979): 5–35. Cf. Wiecek, William, “Slavery and Abolition Before the United States Supreme Court, 1820–1860,” The Journal of American History 65 (1978): 46CrossRefGoogle Scholar. John McLean would later write that a majority of justices held in Prigg that the power was exclusive in the federal government and only “some of the judges thought that a state might legislate in aid of the act of congress.” Miller v. McQuerry, 17 F. Cas. 335 (C.C. Ohio, 1853), 337. Earl Maltz contends that free blacks did not suffer under the ruling, because it did not deprive them of the protection of the state. He distinguishes between the procedural devices located in the personal liberty laws (including the writ of habeas corpus) and the general criminal statutes that forbid imprisoning someone against their will. See Maltz, Slavery and the Supreme Court, 110. The evidence cited in the latter part of this article suggests that procedural remedies, and in particular the writ of habeas corpus, were more important than Maltz maintains.

79. Prigg v. Pennsylvania 41 U.S. 539 (1842), 649.

80. Ibid.

81. Ibid., at 666.

82. See Morris, Free Men All, 116–29.

83. “A Letter from Princeton—A Fugitive Slave Case,” Pennsylvania Inquirer and National Gazette (Philadelphia), August 4, 1843, 19th Century U.S. Newspapers http://infotrac.galegroup.com/itw/infomark/201/655/98004407w16/purl=rc1_NCNP_0_GT3011477546&dyn=6!lnk_2+401+NNWA+GT3011477546?sw_aep=atla29738 (July 20, 2010).

84. “An Interesting and Important Fugitive Slave Case,” The Liberator (Boston), November 6, 1846 (from The Anti-Slavery Standard), 19th Century Newspapers http://infotrac.galegroup.com/itw/infomark/532/950/97997372w16/purl=rc1_NCNP_0_GT3005859039&dyn=42!xrn_8_0_GT3005859039&hst_1?sw_aep=atla29738 (July 20, 2010); “The Slave Case—The Fugitive Freed!” The Liberator (Boston), (from The Anti-Slavery Standard) November 20, 1846, 19th Century U.S. Newspapers http://infotrac.galegroup.com/itw/infomark/532/950/97997372w16/purl=rc1_NCNP_0_GT3005859113&dyn=38!xrn_4_0_GT3005859113&hst_1?sw_aep=atla29738 (July 20, 2010).

85. The South Bend Fugitive Slave Case, Involving the Right to a Writ of Habeas Corpus (New York: Anti-Slavery Office, 48 Beekman Street, 1851)Google Scholar, Samuel J. May Anti-Slavery Collection, Cornell University, http://ebooks.library.cornell.edu/cgi/t/text/text-idx?c=mayantislavery:idno=20869804 (October 15, 2012).

86. Morris, Free Men All, 109–27; and Stewart, James Brewer, “From Moral Suasion to Political Confrontation: American Abolitionists and the Problem of Resistance, 1831–1861,” in Passages to Freedom: The Underground Railroad in History and Memory, ed. Blight, David W. (Washington, DC: Smithsonian Books, 2004), 81–86Google Scholar.

87. The Supreme Court reaffirmed its position in 1847, over the arguments of Salmon P. Chase. Justice Woodbury chided Chase for asking the Court to overturn the Fugitive Slave Act, given that it was a constitutional compromise of the highest importance. It was to be decided, he reminded Chase, by the political branches and the Supreme Court had “no authority as a judicial body to modify or overrule” the compromise. Jones v. Van Zandt, 46 U.S. 215 (1847), 231.

88. Story was in communication with John McPherson Berrien, the chairman of the Senate Judiciary Committee, in 1842. He wrote him a letter suggesting that Congress endow commissioners with the jurisdiction to hear fugitive slave cases and give them the power to issue certificates of removal. See Barbara Holden-Smith, “Lords of the Loom, Lash, and Law,” 1137. But whether this was a proslavery pitch is disputed by Goldstein, Leslie Friedman, “A ‘Triumph of Freedom' After All? Prigg v. Pennsylvania Re-examined,” Law & History Review 29 (2011): 763–96CrossRefGoogle Scholar.

89. Holt, Michael F., The Political Crisis of the 1850s (New York: W. W. Norton, 1978), 82–87Google Scholar. For an excellent analysis of the Senate debate in context, see Fehrenbacher, The Slaveholding Republic, 228.

90. Congressional Globe, 31st Cong., 1st sess., 234 (January 28, 1850).

91. Ibid., 235.

92. Ibid., 481 (March 7, 1850).

93. Appendix to the Congressional Globe, 31st Cong., 1st sess., 1587 (August 19, 1850).

94. Ibid., 1595 (August 20, 1850).

95. Ibid., 1598.

96. Even William Seward's attempt to introduce petitions praying for a trial by jury for alleged fugitives met strong opposition, although they were eventually received and tabled. See Congressional Globe, 31st Cong., 1st sess., 524–27 (March 14, 1850). A subsequent amendment proposed by William Lewis Dayton suggested giving commissioners the power to issue venire writs to empanel a jury. Robert Charles Winthrop further suggested that a jury trial would be necessary in extradition cases if the case was more than 2 years old. Dayton's amendment got nowhere. Appendix to the Congressional Globe, 31st Cong., 1st sess., 1583–88 (August 19, 1850).

97. See the remarks of Jefferson Davis, Appendix to the Congressional Globe, 31st Cong., 1st sess., 1588 (August 19, 1850).

98. On the novelties of the posse comitatus doctrine, see Rao, Gautham, “The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America,” Law and History Review 26 (2008): 1–56CrossRefGoogle Scholar.

99. “An Act to amend, and supplementary to … the Act entitled “An Act respecting Fugitives from Justice, and Persons Escaping from the Service of their Masters,” 9 Stat. 462 (1850).

100. Levy, Leonard W., “Sims' Case: The Fugitive Slave Law in Boston in 1851,” Journal of Negro History 35 (1950): 39–74CrossRefGoogle Scholar.

101. United States v. Scott, 27 F. Cas. 990 (D.C.D. Mass.) (No. 16240b), 997.

102. Miller v. McQuerry, 17 F. Cas. 335 (C.C. of Ohio, 1853), 340.

103. Ibid., 339.

104. Ex Parte Robinson, 20 F. Cas. 965 (C.C.S.D. Ohio), 969.

105. Schmitt, Jeffrey M., “The Antislavery Judge Reconsidered,” Law and History Review 29 (2011): 797–834CrossRefGoogle Scholar.

106. This, in essence, followed the interpretive rule laid down by John Marshall in McCulloch v. Maryland. See Killenbeck, Mark R., M'Culloch v. Maryland: Securing a Nation (Lawrence, KS: University Press of Kansas, 2006), 118–20Google Scholar.

107. In general, see Fritz, American Sovereigns, passim. Popular resistance gained legitimacy by adhering to these procedures.

108. Miller v. McQuerry, 17 F.Cas. 335, 340.

109. “Faneuil Hall Mass Meeting,” Emancipator & Republican, (Boston) October 17, 1850, 19th Century U.S. Newspapers http://infotrac.galegroup.com/itw/infomark/648/964/131303597w16/purl=rc1_NCNP_0_GT3008979985&dyn=9!xrn_10_0_GT3008979985&hst_1?sw_aep=atla29738 (November 10, 2010).

110. “The Fugitive Slave Law,” North Star, (Rochester, NY) October 24, 1850, 19^th Century U.S. Newspapers http://infotrac.galegroup.com/itw/infomark/648/964/131303597w16/purl=rc1_NCNP_0_GT3013083335&dyn=12!xrn_5_0_GT3013083335&hst_1?sw_aep=atla29738 (November 10, 2010).

111. “Public Meeting,” Cleveland Herald, (Cleveland, OH) October 12, 1850, 19th Century U.S. Newspapers http://infotrac.galegroup.com/itw/infomark/648/964/131303597w16/purl=rc1_NCNP_0_GT3004929342&dyn=19!xrn_4_0_GT3004929342&hst_1?sw_aep=atla29738 (November 10, 2010).

112. See, for example, Senate Journal, 31st Cong. 2nd Sess., January 15 and 16, 1851, 85–88.

113. See Collinson, Gary, “Anti-Slavery, Blacks, and the Boston Elite: Notes on the Reverend Charles Lowell and the West Church,” New England Quarterly 61 (September 1988): 419–29CrossRefGoogle Scholar; Collinson, Gary, Shadrach Minkins: From Fugitive Slave to Citizen (Cambridge, MA: Harvard University Press, 1997), 138–43Google Scholar; Fehrenbacher, Slaveholding Republic, 234; Murphy, Angela, “'It Outlaws Me, and I Outlaw it'! Resistance to the Fugitive Slave Law in Syracuse, New York,” Afro-Americans in New York Life and History 28 (2004): 43–72Google Scholar; Padgett, Chris, “Comeouterism and Antislavery Violence in Ohio's Western Reserve,” in Antislavery Violence: Sectional, Racial, and Cultural Conflict in Antebellum America, ed. McKivigan, John R. and Harrold, Stanley (Knoxville: University of Tennessee Press, 1999), 206–7Google Scholar; Richardson, Jean, “Buffalo's Antebellum African-American Community and the Fugitive Slave Law of 1850,” Afro-Americans in New York Life and History 27 (2003): 29–46Google Scholar; and Slaughter, Thomas P., Bloody Dawn: The Christiana Riot and Racial Violence in the Antebellum North (New York: Oxford University Press, 1991)Google Scholar.

114. On Webster and the treason charges, see Collinson, Gary, “‘This Flagitious Offense': Daniel Webster and the Shadrach Rescue Cases, 1851–1852,” New England Quarterly 68 (1995): 609–25CrossRefGoogle Scholar; and Streichler, Stuart, Justice Curtis in the Civil War Era: At the Crossroads of American Constitutionalism (Charlottesville: University of Virginia Press, 2005), 52–60Google Scholar.

115. Charge to the Grand Jury on the Neutrality Laws and Treason, 30 F. Cas. 1024 (C.C.D. Mass., 1851) (Case No. 18,269), 1025.

116. Charge to the Grand Jury on the fugitive slave law, 30 F. Cas. 1007 (C.C.S.D. N.Y., 1851) (Case No. 18,261), 1012.

117. Weimer v. Sloane, 29 F. Cas. 599 (D.C.D. Ohio 1854) (Case No. 17,363).

118. Freeman v. Robinson, 7 Ind. 321 (Indiana, 1855), 323. This followed the basic legal principle that illegal acts done in the name of authority were not covered by that authority, but that those who exercised them did so at their peril, and could be sued privately or prosecuted for their illegal acts.

119. Ex parte Davis, 7 F. Cas. 45 (D.C.N.D. New York, 1851) (Case No. 3,613). This is the only ruling of its kind that I have found, and it is contradicted by virtually all the other case law. It hinged on Judge Conkling's assertion that the Fugitive Slave Act of 1850 created a new right, which conflated the creation of a new jurisdiction with a new right.

120. Miller v. McQuerry, 17 F. Cas. 335, 340.

121. Justice Robert Grier, in one of the first applications of the law in Pennsylvania, applied similar rules in favor of the fugitive. He also warned that if the resident black population attempted to obstruct officers of the law, “the first officer killed would be the signal for the extermination of the black race.” “Fugitive Slave Case” Cleveland Herald, (Cleveland) October 26, 1850, 19th Century Newspapers http://infotrac.galegroup.com/itw/infomark/648/964/131303597w16/purl=rc1_NCNP_0_GT3004929754&dyn=22!xrn_2_0_GT3004929754&hst_1?sw_aep=atla29738 (November 10, 2010).

122. On the rise of the Republican Party and the construction of Republican ideology, I have used broadly Foner, Eric, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (1970; repr. with new introduction, New York: Oxford University Press, 1995)Google Scholar; and Gienapp, William E., The Origins of the Republican Party, 1852–1856 (New York: Oxford University Press, 1987).Google Scholar

123. Stanley W. Campbell argues convincingly that the Fugitive Slave Act became “unenforceable” only after passage of the Kansas–Nebraska Act. See Campbell, Stanley W., The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850–1860 (New York: W. W. Norton, 1970)Google Scholar.

124. Finkelman, “Prelude to the Fourteenth Amendment,” 425. For a detailed analysis of these laws, see Morris, “Free Men All,” 166–201.

125. In re Booth, 3 Wis. 13 (1854). The original opinion by Justice Abram Smith and counsel Byron Paine can be found in Paine, Byron, Argument of Byron Paine, Esq. and Opinion of Hon. A. D. Smith on the Unconstitutionality of the Fugitive Slave Act (Milwaukee: Sherman Booth, 1854)Google Scholar.

126. In re Booth, 43.

127. Ibid., 44.

128. Booth's lawyers asked the Wisconsin Supreme Court to intervene again, but the court refused, citing the doctrine of comity of courts. See Ex Parte Booth, 3 Wis. 134 (1854).

129. In re Booth and Ryecraft, 3 Wis. 144 (1854).

130. See in general, Baker, H. Robert, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (Athens, OH: Ohio University Press, 2006)Google Scholar.

131. A. J. Beitzinger called the opinions indefensible in “Federal Law Enforcement and the Booth Cases,” Marquette Law Review 41 (1957): 18. His analysis was generally appropriated in Parrish, Jenni, “The Booth Cases: Final Step to the Civil War,” Willamette Law Review 29 (1993): 237–78Google Scholar. Louise Weinberg referred to the Wisconsin court's actions as “surreal” in “Methodological Interventions and the Slavery Cases; or, Night-Thoughts of a Legal Realist,” Maryland Law Review 56 (1997): 1355–59Google Scholar. In a departure from this historiographic tradition, Jeffrey Schmitt makes the case that both the Wisconsin Supreme Court position was indicative of a use of legal theory to effect social change. See Schmitt, Jeffrey, “Rethinking Ableman v. Booth and States' Rights in Wisconsin,” Virginia Law Review 93 (2007): 1336–37Google Scholar.

132. Baker, The Rescue of Joshua Glover, 135–61.

133. Ableman v. Booth, 62 U.S. 506 (1859), 526.

134. Joint Resolution relative to the decision of the United States Supreme Court, reversing decision of the Supreme Court of Wisconsin, 1859 Wis. Laws 247.

135. See, in general, Lubet, Steven, “Slavery on Trial: The Case of the Oberlin Rescue in Symposium: Of John Brown: Lawyers, the Law, and Civil Disobedience,” Alabama Law Review 54 (2003): 785–829Google Scholar.

136. Ex Parte Bushnell II, 9 Ohio St. 77 (1859), 182–183, 197.

137. Ibid., 227, 228.

138. Baker, The Rescue of Joshua Glover, 159–61.