1. Nolan, Joseph R. and Nolan-Haley, Jacqueline M., ed., Black's Law Dictionary with Pronunciations, 6th ed. (St. Paul: West Publishing Co., 1990), 1162Google Scholar . Blackstone, William, Commentaries on the Laws of England, vol. 1, Of the Rights of Persons, ed. Katz, Stanley N. (1765; Chicago: University of Chicago Press, 1979), 339Google Scholar.

2. Potter, Henry, The Office and Duty of a Justice of the Peace: And a Guide to Sheriffs, Coroners, Clerks, Constables, and other Civil Officers … (Raleigh: J. Gales, 1816), 243–44Google Scholar . Only “clergymen, and sick, lame, or impotent persons,” could avoid such service. For all other adults, “freemen or servants” alike, the summons to attend to the posse comitatus was a legally binding command to serve the will of the state.

3. The power “to compel the service of the citizenry” was part and parcel of the pervasive “common law vision of a well-regulated society” that dominated state and local governance in nineteenth-century America. Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 57, 42Google Scholar.

4. Livingston, Edward, A System of Penal Law for the State of Louisiana … (Philadelphia: James Kay, 1833), 210Google Scholar . The posse comitatus was the preliminary level of community law enforcement, failing which, the state turned to the militia. Through the posse comitatus, localities called for citizens to be civilians primarily, and law enforcers on occasion, just as, in the words of Associate Justice James McReynolds, state militia requirements called for citizens to be “civilians primarily, soldiers occasionally.” Miller v. United States, 307 U.S. 174, 178 (May 15, 1939)Google Scholar . Tocqueville, Alexis de, Democracy in America, trans. Mayer, J. P. (1835, 1840; New York: Perennial Classics, 2000), 95–96CrossRefGoogle Scholar . Thoreau, Henry David, On the Duty of Civil Disobedience (1849; Chicago: Charles H. Kerr Publishing Company, 1989), 5Google Scholar.

5. Robbins, James J., ed., Report of the Trial of Castner Hanway for Treason … (Philadelphia: King & Baird, 1852), 48Google Scholar . For other accounts of the incident, see: Finkelman, Paul, “The Treason Trial of Castner Hanway,” in American Political Trials, ed. Belknap, Michael R. (Westport, Conn.: Greenwood Press, 1994), 79–100Google Scholar . Slaughter, Thomas P., Bloody Dawn: The Christiana Riot and Racial Violence in the Antebellum North (New York: Oxford University Press, 1991)Google Scholar ; The Fugitive Slave Law of 1850, U.S. Statutes at Large 9 (1850): 462, 463 [hereafter, Fugitive Slave Law of 1850]Google Scholar.

6. Robbins, , Report of the Trial of Castner Hanway, 145–46Google Scholar . See Wiebe's, Robert H. familiar sketch of nineteenth-century America, The Search for Order, 1877-1920 (New York: Hill & Wang, 1967), xiii–xivGoogle Scholar . On the rudimentary character of antebellum nationalism, see Lawson, Melinda, Patriot Fires: Forging a New American Nationalism in the Civil War North (Lawrence: University Press of Kansas, 2002), 4–7Google Scholar . In this sense, the antebellum federal government bore little resemblance to the characteristics of the “modern” state. Writes Weber, Max, “Today, however, we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”Google Scholar In the modern state, “obedience is determined by highly robust motives of fear and hope-fear of the vengeance of magical powers of the power-holder, hope for reward in this world or in the beyond-and besides all this, by interests of the most varied sort.” Weber, Max, “Politics as a Vocation,” in From Max Weber: Essays in Sociology, ed. Gerth, H. H. and Mills, C. Wright (New York: Oxford University Press, 1947), 78–79 [emphasis added]Google Scholar . See also, Anderson, Benedict, Imagined Communities: Reflections on the Origin and Spread of Nationalism (New York: Verso Books, 1991)Google Scholar.

7. Robbins, , Report of the Trial of Castner Hanway, 181, 182 [emphasis added].Google Scholar

8. Edling, Max, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (Oxford: Oxford University Press, 2003), 6–10.CrossRefGoogle Scholar

9. John Barton Derby (1829) quoted in John, Richard R., Spreading the News: The American Postal System from Franklin to Morse (Cambridge: Harvard University Press, 1995), 5.Google ScholarPrigg v. Pennsylvania, 41 U.S. 539 at 630-31 (1842)Google Scholar . Antebellum federal administrative capacities are discussed in detail in: Rohrbough, Malcolm J., The Land Office Business: The Settlement and Administration of American Public Lands, 1789-1837 (New York: Oxford University Press, 1968)Google Scholar ; John, , Spreading the NewsGoogle Scholar ; Preston, Daniel, “Administration and Reform of the U.S. Patent Office, 1790-1836,” Journal of the Early Republic 5 (1985): 331–53CrossRefGoogle Scholar . The function and significance of federal customs service in antebellum America is the subject of my forthcoming dissertation, “Visible Hands: Customhouses, Law, Capitalism, and the Mercantile State of the Early Republic.”

10. Brent, Robert J., quoted in Robbins, , ed., Trial of Castner Hanway, 196Google Scholar . Fugitive Slave Law of 1850 at 463. Randal v. State, 12 Miss (4 S. & M.) 349 at 351 (1845)Google Scholar.

11. See, e.g., Corwin, Edward S., “The Basic Doctrine of American Constitutional Law,” Michigan Law Review 12 (1914): 247–76CrossRefGoogle Scholar ; McEvoy, Arthur F., “Freedom of Contract, Labor, and the Administrative State,” The State and Freedom of Contract, ed. Scheiber, Harry N. (Palo Alto: Stanford University Press, 1998)Google Scholar . A similarly formidable literature exists on the administrative power over persons, e.g., Dickinson, John, Administrative Justice and the Supremacy of Law in the United States (Cambridge: Harvard University Press, 1927)Google Scholar ; Freund, Ernst, Administrative Powers over Persons and Property: A Comparative Survey (Chicago: University of Chicago Press, 1928)Google Scholar ; Hurst, Willard J., Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1967)Google Scholar ; Horwitz, Morton J., The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (Cambridge: Harvard University Press, 1992), esp. 213–46Google Scholar . Also notable is the sizeable body of scholarship on government regulation of speech in the modern state. See, for instance, Fiss, Owen M., The Irony of Free Speech (Cambridge: Harvard University Press, 1996)Google Scholar . On the compass of American social policy in the late nineteenth century, see, e.g., Skocpol, Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Belknap Press of Harvard University Press, 1992)Google Scholar ; Rodgers, Daniel T., Atlantic Crossings: Social Politics in a Progressive Age (Cambridge: Belknap Press of Harvard University Press, 1998)Google Scholar.

12. The federal posse comitatus receives limited attention in the highly developed literature on the Fugitive Slave Law of 1850. Campbell, Stanley W., The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860 (1968; Chapel Hill: University of North Carolina Press, 1970)Google Scholar ; Johnson, Allen, “The Constitutionality of the Fugitive Slave Acts,” Yale Law Journal 31 (1921-1922): 161–82CrossRefGoogle Scholar ; Levy, Leonard W., “Sims' Case: The Fugitive Slave Law in Boston in 1851,” Journal of Negro History 35 (1950): 39–74CrossRefGoogle Scholar ; Sebok, Anthony J., “Judging the Fugitive Slave Acts,” Yale Law Journal 100 (1991): 1835–54CrossRefGoogle Scholar . A more comprehensive treatment is tenBroek, Jacobus, Equal Under Law (1951; New York: Collier Books, 1965), 57–65Google Scholar.

13. There are several studies relating slavery to political development, constitutional law, tax doctrines, and other aspects of federal governance. See Einhorn, Robin, American Slavery, American Taxation (Chicago: University of Chicago Press, 2006), esp. 117–250CrossRefGoogle Scholar ; Ericson, David F., “The Federal Government and Slavery: Following the Money Trail,” Studies in American Political Development 19 (2005): 105–16CrossRefGoogle Scholar ; Fehrenbacher, Donald E., The Slaveholding Republic: An Account of the United States Government's Relations to Slavery (New York: Oxford University Press, 2001)Google Scholar ; Finkelman, Paul, Slavery and the Founders: Race and Liberty in the Age of Jefferson (Armonk, N.Y.: M. E. Sharpe, 1996)Google Scholar . Discussions of the antebellum American state suggest that common law rule and party politics produced a nationally decentralized state of “courts and parties.” Skowronek, Stephen, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (New York: Cambridge University Press, 1982), 23CrossRefGoogle Scholar . A powerful critique of this perspective is John, Richard R., “Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787-1835,” Studies in American Political Development 11 (1997): 347–80CrossRefGoogle Scholar.

14. State-sponsored forced labor systems figured greatly in pre-capitalist and colonial states. Cooper, Frederick, “Conditions Analogous to Slavery: Imperialism and Free Labor Ideology in Africa,” Beyond Slavery: Explorations of Race, Labor, and Citizenship in Postemancipatory Societies, ed. Cooper, Frederick, Scott, Rebecca C., and Holt, Thomas (Chapel Hill: University of North Carolina University Press, 2000), 107–49Google Scholar ; Mann, Michael, The Sources of Social Power, vol. 1, A History of Power from the Beginning to A.D. 1760 (New York: Cambridge University Press, 1986), 130–42Google Scholar ; Braudel, Fernand, Civilization and Capitalism, 15th-18th Century, vol. 2, The Wheels of Commerce, trans. Reynolds, Sian (New York: Harper & Row, 1979), 514–19Google Scholar ; Wolf, Eric, Europe and the People Without History (Berkeley: University of California Press, 1982), 24–72Google ScholarPubMed . In mercantilist Europe, the press gang was perhaps the most prominent-and problematic-mode of state coercion to maximize citizens' labor. Linebaugh, Peter, The London Hanged: Crime and Civil Society in the Eighteenth Century (New York: Verso, 2003), 67–68Google Scholar ; Rediker, Marcus, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700-1750 (New York: Cambridge University Press, 1997), 251–53Google Scholar . Military compulsion, discussed in the final section of this essay, has also received historical attention. Kestnbaum, Meyer, “Citizen-Soldiers, National Service, and the Mass Army: The Birth of Conscription in Revolutionary Europe and North America,” Comparative Study of Conscription in the Armed Forces, ed. Møjset, Lars et al. (New York: JAI, 2002), 117–44CrossRefGoogle Scholar ; Ladurie, Emmanuel LeRoy and Benageau, Nicole, “The Conscripts of 1868,” in The Territory of the Historian, ed. Ladurie, Emmanuel Le Roy (Hassocks, Sussex: The Harvester Press, 1979), 33–75Google Scholar ; Barker, Rachel, Conscience, Government and War: Conscientious Objectors in Great Britain, 1939-1945 (New York: Routledge & Kegan Paul, 1982)Google Scholar . Political scientists and sociologists have also undertaken to determine the significance of compulsion and consent as a fundamental aspect of modernity. See, e.g., Levi, Margaret, Consent, Dissent, and Patriotism (New York: Cambridge University Press, 1997)CrossRefGoogle Scholar ; Birnbaum, Pierre, “The State and Mobilisation for War,” in States and Collective Action, trans. Thom, Martin (New York: Cambridge University Press, 1988), 55–66CrossRefGoogle Scholar ; Herzog, Don, Happy Slaves: A Critique of Consent Theory (Chicago: University of Chicago Press, 1989)Google Scholar ; Giddens, Anthony, The Nation-State and Violence (Cambridge: Policy Press, 1985)Google Scholar.

15. Karl Marx, Max Weber, and Michel Foucault (among others) shared a fascination with the shift from pre-modern forms of direct personal domination to more abstract categories of social domination during modernity. Marx, , The German Ideology: Part I, in The Marx-Engels Reader, ed. Tucker, Robert C. (New York: W. W. Norton & Co., 1978), 147–200Google Scholar ; Weber, , The Protestant Ethic and the Spirit of Capitalism (New York: Routledge, 1992), 69-92, 160–83Google Scholar ; Foucault, Michel, Discipline and Punish: The Birth of the Prison, trans. Sheridan, Alan (New York: Vintage Books, 1992)Google Scholar.

16. Morgan, Edmund S., American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York: W. W. Norton & Co., 1975).Google Scholar

17. Paul Finkelman, Sanford Levinson, and Derrick Bell maintain that slavery was central, rather than anomalous, to American legal development. Finkelman, Paul, “The Centrality of Slavery in American Legal Development,” in Slavery and the Law, ed. Finkelman, Paul (Madison: Madison House, 1997), 3–26Google Scholar ; Levinson, Sanford, “Slavery in the Canon of Constitutional Law,” Chicago-Kent Law Review 68 (1993): 1087–1111Google Scholar ; Bell, Derrick, And We Are Not Saved: The Elusive Quest for Racial Justice (New York: Free Press, 1992)Google ScholarPubMed . Similarly, in The Slaveholding Republic, Don E. Fehrenbacher rightly suggests that the antebellum polity was defined by the problem of slavery.

18. This characteristic of market relations is discussed by Polanyi, Karl, The Great Transformation: The Political and Economic Origins of Our Time (1944; Boston: Beacon Press, 2002), 257–68Google Scholar ; Stanley, Amy Dru, From Bondage to Contract: Wage Labor, Marriage and the Market in the Age of Slave Emancipation (New York: Cambridge University Press, 1998)CrossRefGoogle Scholar . Notably, Willard Hurst and Joseph Schumpeter argue that law brought similar forces to bear on the market. For Hurst, legal regulation in the nineteenth century generated a “release of energy” that anchored American economic development. In Schumpeter's famous formulation, “creative destruction” worked much the same. Hurst, , Law and the Conditions of FreedomGoogle Scholar , Schumpeter, Joseph A., Capitalism, Socialism, and Democracy (New York: Harper and Brothers, 1947), 81–86Google Scholar . Novak, William J., “Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst,” Law and History Review 18 (2000): 129CrossRefGoogle Scholar.

19. Colquhoun, Patrick, A Treatise on the Police of the Metropolis … (London: J. Mawman, 1800), 389Google Scholar . Riot Act, 1 Geo. 1, stat. 2, c. 5 (1714), quoted in Engdahl, David E., “Soldiers, Riots, and Revolution: The Law and History of Military Troops in Civil Disorders,” Iowa Law Review 57 (1971): 16Google Scholar . Harding, Alan, A Social History of English Law (Gloucester, Mass: Peter Smith, 1973), 60Google Scholar ; Blackstone, , Commentaries, 1:362Google Scholar ; Anon., “The Office of Lord Lieutenant and His Deputies,” Law Magazine & Law Review Quarterly; or Quarterly Journal of Jurisprudence 14, no. 50 (1862-1863): 50Google Scholar . Common law decisions restricting the use of military force in civilian law enforcement were especially important to the development of the posse comitatus. Engdahl, , “Soldiers, Riots, and Revolution,” 8–17Google Scholar.

20. In particular, rapid urbanization apparently rendered the posse comitatus increasingly anachronistic in England. Radzinowicz, Leon, A History of English Criminal Law and Its Administration from 1750 (London: Stevens & Sons Limited, 1956), 2:28Google Scholar ; Harding, , Social History of English Law, 270Google Scholar ; Colquhoun, , Treatise on the Police of the Metropolis, 389Google Scholar.

21. On the colonists' propensity to riot, see Maier, Pauline, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776 (1972; New York: W. W. Norton & Co., 1991), 3–48Google Scholar ; Hulsebosch, Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (Chapel Hill: University of North Carolina Press, 2000)Google Scholar ; Rediker, , Between the Devil and the Deep Blue Sea, 205–53Google Scholar ; Gilje, Paul A., Rioting in America (Bloomington: Indiana University Press, 1996), 12–59Google Scholar . For a summary of the different layers of governance in colonial America, see, among others, Bailyn, Bernard, Origins of American Politics (New York: Vintage Books, 1969)Google Scholar ; Greene, Jack P., Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 (Athens: University of Georgia Press, 1986)Google Scholar.

22. Maier, , From Resistance to Revolution, 16–17Google Scholar . Chapin, Bradley, Criminal Justice in Colonial America, 1606-1660 (Athens: University of Georgia Press, 1983), 31, 96Google Scholar.

23. Lord North, quoted in Reid, John Phillip, In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution (Chapel Hill: University of North Carolina Press, 1981), 231, 232, 230Google Scholar . Maier, , From Resistance to Revolution, 280Google Scholar . Notably, Reid argues that Revolutionary “mobs,” such as the group of colonists that participated in “the Boston Massacre,” were actually a “constitutional posse Comitatus,” which was attempting to police the unconstitutional use of the military against civilians. Reid, , In Defiance of the Law, 229, 228Google Scholar.

24. Coyles v. Hurtin, 10 Johns. 85 at 89 (1813)Google Scholar . Comfort v. Commonwealth, 5 Whart. 437 at 439-40 (1840)Google Scholar . See also, Avery v. Seely, 3 Watts & Serg. 494 at 498 (1841)Google Scholar ; Stephen, John, Summary of the Criminal Law (Philadelphia: J. S. Littell, 1840), 29Google Scholar.

25. States enjoyed broad latitude to guard the health and safety of their citizens. Wrote Chief Justice Marshall, John in Brown v. Maryland, 25 U.S. (12 Wheat.) 425 at 443-44 (1827)Google Scholar : “The power to direct the removal of gunpowder is a branch of the police power, which unquestionably remains, and ought to remain, with the States…. The removal or destruction of infectious or unsound articles is, undoubtedly, an exercise of that power, and forms an express exception to the prohibition we are considering.” On the state police power generally, see Novak, , The People's Welfare, 13–17Google Scholar.

26. M'Kinney, Mordecai, The United States Constitutional Manual … (Harrisburg, Penn.: Hickock & Cantine, 1845), 261Google Scholar ; Dane, Nathan, A General Abridgment and Digest of American Law … (Boston: Cummings, Hilliard & Co., 1823-1829), 2:352Google Scholar ; Niles, John Milton, The Connecticut Civil Officer: In Three Parts … (Hartford, Conn.: Huntington & Hopkins, 1823), 214Google Scholar ; Goodwin, Isaac, New England Sheriff, or, Digest of the Duties of Civil Officers … (Worcester: Dorr and Howland, 1830), 76Google Scholar ; Hartshorn, Charles W., New England Sheriff: Being a Digest of the Laws of Massachusetts Relating to Sheriffs, Jailers, Coroners, and Constables … (Worcester: W. Lazell, 1844), 123Google Scholar ; Eden, Baron Robert Henley, A Treatise on the Law of Injunctions (New-York: Gould, Banks, 1839), 197–98Google Scholar ; Latrobe, John H. B., The Justices' Practice Under the Laws of Maryland: Including the Duties of a Constable … (Baltimore: F. Lucas, Jr., 1840), 260-63, 274Google Scholar.

27. Novak, , The People's Welfare, 49Google Scholar . Reed v. Bias, 8 Watts & Serg., 189 at 191 (1844). See also,Google ScholarExtradition of Fugitives from Service, 6 Op. Atty. Gen. 466 (1854)Google Scholar ; Olcott, Edward R. and Spofford, Henry M., The Louisiana Magistrate (New Orleans: Published for the Authors, 1848), 208Google Scholar ; Stephen, , Summary of the Criminal Law, 46Google Scholar ; M'Kinney, , The United States Constitutional Manual, 260Google Scholar.

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29. Avery v. Seely at 498. Livingston, , A System of Penal Law for the State of Louisiana, 210Google Scholar . Reed v. Bias at 191. Here the development of the posse comitatus paralleled uncompensated takings of property for the public good. Through the damnum absque injuria doctrine, the states immunized themselves from suits pertaining to public works programs and emergency measures. As the U.S. Supreme Court decided in Smith v. Corporation of Washington (1857)Google Scholar , when “agents of the public” completed “a duty imposed on them by law,” any incidental damage to private citizens deserved no “recompense.” As with the posse comitatus, “private interests must yield to public accommodation.” Smith v. Corporation of Washington, 61 U.S. (20 How.) 135 at 148 (1857)Google Scholar . See also, Novak, , People's Welfare, 128–31Google Scholar.

30. It should be noted that in addition to its use to police slaves, the posse comitatus was also used in the South for the same purposes-nuisances, riots, etc.-as it was in the North. Cobb, Howell, Analysis of the Statutes of Georgia: In General Use, With the Forms and Precedents Necessary to their Practical Operation … (New York: E. O. Jenkins, 1846), 475Google Scholar ; Smith, James, Civil Practice in the Court of Pleas and Quarter Sessions of North Carolina: In Ordinary Cases (Raleigh; New York: A. S. Gould, 1846), 10Google Scholar.

31. Lowell, James Russell, “The Thirty Fugitives and Their Two Hundred Pursuers,” Christian Reflector 8 (1845): 118Google Scholar . Chesnut, Mary, Mary Chesnut's Civil War, ed. Woodward, C. Vann (New Haven: Yale University Press, 1981), 407Google Scholar.

32. Genovese, Eugene D., Roll, Jordan, Roll: The World the Slaves Made (New York: Vintage Books, 1976), 648, 657Google Scholar . State v. Mann, 13 N.C. 263 at 266 (1829)Google Scholar . Genovese holds out Judge Ruffin's dictum as the exemplar of the southern judicial “logic of slavery” that immunized the master-slave relationship from any interference. Genovese, , Roll, Jordan, Roll, 35–36Google Scholar . Generally, see, Tushnet, Mark V., Slave Law in the American South: State v. Mann in History and Literature (Lawrence: University Press of Kansas, 2003), 30-37, 139–46Google Scholar.

33. “‘The legal relation of master and slave’ is what the Slave Code declares it to be. And it is nothing else,” writes Goodell, William in the opening lines of The American Slave Code in Theory and Practice … (London: Clarke, Beeton, 1853), 1Google Scholar . For general studies on the centrality of slavery to southern private law, see Morris, Thomas D., Southern Slavery and the Law, 1619-1860 (Chapel Hill: University of North Carolina University Press, 1996)Google Scholar ; Tushnet, , Slave Law in the American South, esp. 30-37, 139–146Google Scholar ; Catterall, Helen Tunnicliff, ed., Judicial Cases Concerning American Slavery and the Negro, 4 vols. (New York: Negro Universities Press, 1968)Google Scholar.

34. Hadden, Sally M., Slave Patrols: Law and Violence in Virginia and the Carolinas (Cambridge: Harvard University Press, 2001), 3, 41-104, esp. 50–60Google Scholar . Even though class conflict between wealthy planters and poor whites much debilitated the slave patrol system, it remained a formidable aspect of the South's slave police.

35. O'Neall, John Belton, The Negro Law of South Carolina … (Columbia, S.C.: J. G. Bowman, 1848), 16, 24, 49Google Scholar . Randal v. State at 351 [emphasis added]. Thompson v. Young, 30 Miss. 17 at 18 (1855)Google Scholar . See also, Morton v. Bradley, 30 Ala. 683 at 693-95 (1857)Google Scholar ; Carondolet, Baron de, Digest of the Laws of Louisiana (June 1, 1795)Google Scholar , reprinted in U.S. Congress, Digest of the Laws of Louisiana, 8th Cong., 1st sess., 1803, Serial Set 37 American State Papers, Miscellaneous, 381. Franklin, John Hope, The Militant South, 1800-1861 (1956; Urbana: University of Illinois Press, 2002), 76Google Scholar . See also, Aptheker, Herbert, American Negro Slave Revolts (New York: Columbia University Press, 1943)Google Scholar.

36. Kent, James, Commentaries on American Law (New York: O. Halstead, 1826-1830; New York: Da Capo Press, 1971), 2:254Google Scholar . Kent's reference to the slave population as “combustible materials” echoes Chief Justice John Marshall's discussion of the state police power's legitimate reach over gunpowder caches in Brown v. Maryland. See above, note 26. Indeed, in Elliot v. Gibson, 49 Ky (10 B. Mon) 438 at 443-44 (1850), the Kentucky Court of Appeals would liken the fugitive slave to “a nuisance injurious to the community.” The Virginia Supreme Court, inGoogle ScholarBaker v. Wise, 57 Va. (16 Gratt.) 139 at 195, 197 (1861)Google Scholar , upheld the inspection of coastwise vessels on the grounds that when “any species of property … becomes the source of peculiar or extraordinary danger to the community,” the state enjoyed the right to “adopt such regulations of police” to prevent “the threatened mischief.” The Baker court very consciously cited to the U.S. Supreme Court's decision in Smith v. Turner, 48 U.S. (7 How.) 283 at 319 (1849)Google Scholar , a classic discussion of state police power over the supposedly threatening populations of paupers, vagrants, and immigrants. Genovese, , Roll, Jordan, Roll, 45–47Google Scholar.

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53. Bowen, Francis, North American Review Index 71 (1850): 261Google Scholar . The same chronology can be found in Charge to Grand Jury-Fugitive Slave Law, 30 F. Cas. 1007 at 1009 (1851)Google Scholar ; Cobb, Thomas R. R., An Inquiry into the Law of Negro Slavery in the United States of America … (Philadelphia: T. & J. W. Johnson, 1858), 222Google Scholar . There were abortive attempts in 1796, 1801, 1817, and 1822 to enact new fugitive slave legislation. Nogee, Joseph F., “The Prigg Case and Fugitive Slavery, 1842-1850: Part I,” Journal of Negro History 39 (1954): 187CrossRefGoogle Scholar.

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55. And such knowledge, the logic went, was as much a disincentive for slaveholders to attempt recaption as it was an incentive for slaves to seek refuge in free states. U.S. Congress, Senate, Resolutions of the Legislature of Kentucky, in favor of the passage of a law by Congress to enable citizens of slaveholding States to recover slaves escaping into the non slaveholding states, 30th Cong., 1st sess., 1847Google Scholar , Serial Set 511, Senate Misdoc. 19, 15. Reminisced Virginia's Thomas Bayly in 1850, “The inefficiency of the former law greatly encouraged negroes to attempt an escape.” Bayly, Thomas H., Circular of Thomas H. Bayly, of Virginia, To his Constituents (Washington, D.C.: Congressional Globe Office, 1850), 7Google Scholar.

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66. The 1850 law explicitly addressed the fear Andrew Butler expressed in 1848 that federal marshals in free states would be “reluctant” to enforce a federal fugitive slave law. Section 5 of the 1850 law imposed a $1000 fine on any marshal who “refuse to receive” or otherwise fail to execute process under the law. Butler Report, 15. Congressional Globe, 31st Cong., 1st Sess., January 31, 1850, 271Google Scholar ; Fugitive Slave Law of 1850, 9 U.S. Statutes at Large 462.

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104. Randall, James G., Constitutional Problems Under Lincoln (New York: D. Appleton and Company, 1926)Google Scholar ; Amicus, [pseud.], The Rebel States, the President and Congress: Reconstruction, and the Executive Power of Pardon (New York: E. S. Dodge & Co., 1866)Google Scholar . I owe this reading of Lincoln's strategy in part to Jeremi Suri's Comment on the Plenary Session, “The Bush Doctrine: A New Departure in American Foreign Policy?” Policy History Conference, June 1, 2006, Charlottesville, Virginia. To be sure, Lincoln's mass of force was much more an army than a posse comitatus. But conceiving of federal force as the latter did have real consequences in early military policy. Lincoln and his staff initially sought to inspire Southern Unionists to revolt and displace the Confederacy. Like a posse comitatus, this “substantial body of loyal citizens,” as Herman Belz phrases it, was expected to aid authorities in upholding federal law. Belz, , Reconstructing the Union: Theory and Policy During the Civil War (Ithaca: Cornell University Press, 1969), 135, 44Google Scholar.

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