The Law Wars in Massachusetts, l830-1860: How a Band of Upstart Radical Lawyers Defeated the Forces of Law and Order, and Struck a Blow for Freedom and Equality Under Law

The Law Wars in Massachusetts, l830-1860: How a Band of Upstart Radical Lawyers Defeated the... Abstract The article reframes the debate on the period of rebellion against the fugitive slave clause in Massachusetts in the period leading up to the Civil War. Traditionally this story has been framed as a battle between the Christian morality of the Garrisonians and the positivism of the law-and-order conservatives. In fact, there was a third alternative, one that prevailed for a brief time, grounded in legal principles of due process and equality before the law. We show how the radical lawyers confronted and defeated the conservative legal elite, including the likes of Joseph Story, Daniel Webster and Benjamin Robbins Curtis, using legal arguments and a comprehensive litigation strategy. The story we tell has implications for today, when lawyers and scholars debate the power of legal arguments to effect social change. Let no man think to excuse himself from any duty which [the Constitution] enjoins.              -Joseph Story1 Who is it that oppose the fugitive slave law? Men that have always been on the side of the law and order and do not violate the statutes of man for their own advantage. This disobedience to the fugitive slave law is one of the strongest guarantees for the obedience of any just law.              -Rev. Theodore Parker2 In the glare of passion the foundations of law are searched, and men become masters of the science of liberty.              -Ralph Waldo Emerson3 I.Introduction What is fidelity to law and who defines what law means? How is law made and by whom? How are unjust laws unmade? What gives law its legitimacy? Lawyers and judges in Massachusetts, conservatives and radicals, battled to answer these questions in the decades preceding the Civil War. This intellectual warfare was prompted by the rendition clause of the Constitution, which mandated that fugitive slaves who escaped into free states be returned to their owners, but did not specify by whom.4 Little was known about the rendition clause (it was adopted late in the Convention without debate), except that it was vaguely understood to be a part of the compromise between the free and slave states at the Philadelphia Convention that made federal union possible.5 On its face, however, and in the ways it differed from the other clauses dealing with slavery, the clause was a ticking time bomb. What made it an explosive point of contention—between the slave and free states and between the radical and conservative lawyers of Massachusetts—was that it was not a compromise at all but rather a concession.6 While giving nothing to the free states, the clause required positive compliance on the part of their citizens to work. The rendition clause was also the only clause in the Constitution that could not be activated except by slaves themselves, albeit through resistance. In Massachusetts, the rendition clause was first contested in the 1836 Chickasaw episode, when an agent for a Maryland slave-holder appeared in Boston and attempted to reclaim Eliza Small and Polly Ann Bates who were being held at the request of the slave agent on the brig Chickasaw. In the habeas hearing, Chief Justice Shaw ruled that the two women should be released from confinement, but before his ruling could be implemented they were rescued from the courtroom by a (primarily black) mob that feared the women might be re-arrested despite Shaw's favorable ruling. Samuel E. Sewall, the abolitionist lawyer who argued for the women, was later caned by a southern sympathizer for his efforts. Newspapers in the North and South each put their own spin on the whole episode and drew their own conclusions.7 While the lines of battle were forming in 1836, in our reckoning the war over rendition began in earnest in 1842 and 1843, when a band of idealistic lawyers in Boston organized themselves to oppose the Supreme Court's decision in Prigg v. Pennsylvania and the Massachusetts Supreme Judicial Court's companion decision Commonwealth v. Tracy (referred to subsequently as the Latimer case).8 The legal issue was joined when the forces of law and order mobilized to resist these radicals. The nation, north and south, watched closely in the following decade since the fate of the constitutional compromise with slavery, on which the union rested, appeared to turn on the outcome of the struggle. Our paper focuses on on-the-ground lawyering.9 It aims to understand how a group of outlier radical attorneys dismantled and refuted the arguments of the conservative legal establishment that had held sway in Boston for decades; how they framed the public dialogue about rendition; and how they proposed an egalitarian vision of law to the people of Massachusetts, one in which lawyers and citizens were active participants. The victory of the radicals, we contend, was due to several inter-related factors, starting with their realization that there was strength in numbers and organization. What began in the 1830s with individual efforts of lawyers such as Sewall, developed by the 1840s and 1850s into a highly effective consortium of lawyers, a mobile legal strike force. What these lawyers did, against the odds, was to humble the conservative legal establishment by using litigation, first to nullify the rendition law and then to propose an alternative legal vision grounded in equality before the law, due process, and the jury right. A word about methodology. Much of the scholarship on the rendition conflicts in Massachusetts has concentrated on dramatic moments, leading individual cases, and the judges who decided them.10 In contrast, we have attempted to contextualize individual cases and events over two decades, to search for overall patterns, and to integrate individual legal histories into the overarching legal strategy of the anti-rendition “bar.” We are concerned not only with the major cases in which these lawyers participated, but equally with the motions they brought, large and small, as well as the legislation generated by the litigation. The bold and improvisational legal actions we describe were the defining characteristic of the radical bar and were perfectly suited to its free-flowing organizational structure. Our work supports the view, advocated by some scholars, that the final say on legal questions during this period did not rest with the Supreme Court alone.11 In Massachusetts legal interpretation was understood to be in wider authorship than the high courts of either the nation or the state. Lawyers, juries, and legislators all played an active role in creating legal understandings. We emphasize the importance of the jury to this process of popular legality and focus on the lawyers because they framed the legal issues the judges confronted and because over time they articulated their own view of law.12 The lawyers we consider were a varied group that included abolitionists like Samuel Sewall, Wendell Phillips, and Robert Morris (the young black lawyer who integrated the Suffolk bar). There were anti-slavery lawyer-politicians, such as Charles Sumner and John P. Hale, as well as successful commercial lawyers, such as Hale himself and Richard Henry Dana, Jr., who went on to a career in politics and was known for representing both the highborn and the downtrodden. Morris also maintained a busy professional life and was known to represent poor people both white and black. The legal actions of this varied group effectively nullified the federal rendition law in Massachusetts and undercut the constitutional compromise on which the union rested. Thanks to the radical bar, what happened in Boston became national history. These radical lawyers could not have achieved such a feat without the support, active or passive, of Massachusetts citizens. In garnering that support, the radicals depended on the courage of fugitive slaves whose presence—and whose treatment by the authorities—educated the masses about the true nature of slavery. The black community of Boston played an active role in resisting rendition, as did William Lloyd Garrison and the abolitionists of Boston and Massachusetts, who worked closely with the radical lawyers. But the radical bar was largely responsible for its own success because it recognized the fundamental connection between law and politics. Above all, it realized that litigation could be a form of political discourse and the courtroom a civic forum where ordinary citizens could confront their governors and hold them accountable. In the 1850s the radical bar also encouraged civil disobedience to an unjust law by demonstrating to the law-abiding citizens of Massachusetts that the anti-slavery position was grounded first and foremost in established law.13 Behind the explosion in litigation was a strategy to reframe the debate by pitting state-based procedural law against the rendition law created by the Federal Constitution, statute, as well as federal and state judicial decisions, all backed by federal and state troops. This strategy imparted design and meaning to what at first appears to be a chaotic collection of legal actions. By building on the Massachusetts tradition of procedural justice, and especially by turning the issue of jury independence into a battle weapon, the radicals made due process of law the touchstone of constitutional truth. For this reason, we call this a due process moment. These lawyers put a legal foundation under what might have been a lawless revolution. In the process, they undermined the traditional distinction between legal and political discourse that legal elites used to justify their monopoly on legal truth. In using law to educate—and to nullify—the radicals transformed Massachusetts, historically the home base of constitutional nationalism, into a bastion of state rights based on procedural due process and equality before the law. Those principles assumed amplified persuasive force when contrasted to southern slave law, a contrast that was a standard feature of radical discourse. In developing our argument, we turn first to the theoretical foundation of the radical bar’s actions found in the work of a heretofore obscure but remarkably gifted lawyer-legislator named James C. Alvord. In section two we describe how the radical lawyers transformed the apparent defeat of the anti-slavery forces in Prigg v. Pennsylvania into a legislative victory. In section three we show how the radical bar used litigation to nullify the Fugitive Slave Act of 1850, and how they orchestrated chaos to do so. In section four we consider the role of the jury—and especially the idea of the jury—in the radicals’ campaign to win public support for their law-defying agenda and their vision of procedural justice. We conclude with some reflections on implications of the rendition wars. II. James C. Alvord and the Structural Foundation of Radical Lawyering In 1836, the Massachusetts Legislature undertook a massive omnibus codification project.14 In that codification process, the old writ of personal replevin was removed without discussion. That writ permitted a person held in captivity to obtain a jury trial and was known as a possible procedural avenue for preventing the rendition of fugitive slaves. Abolitionists across Massachusetts petitioned the legislature to recodify the writ, and in response to these petitions the legislature commissioned a report from the committee on the judiciary. This report was written by James C. Alvord, a young legislator and legal scholar who has heretofore remained in the shadows.15 Alvord occupies a unique, and somewhat mysterious, position in the campaign against rendition.16 The village of Greenfield where he grew up was far removed socially and professionally from Boston. Alvord attended Dartmouth College, class of 1827; he studied law for two years at Yale and was admitted to practice in Connecticut in June 1829.17 After only a few months of practice, he entered Harvard Law School in l830 to study under Joseph Story. Brilliance, charisma, and a gift for public speaking got him a lectureship at the Law School with the promise of a distinguished legal career. He chose to make his mark as a legislator, not a litigator: first as state representative from Greenfield, then as state senator from Franklin County, and finally in l838, in a landslide election, as congressman from his district. Alvord died in September 1839 at the age of thirty-one, before taking office. During his short life, he became close friends with fellow law students Charles Sumner and Wendell Phillips, who would lead the anti-rendition bar, and with Benjamin Robbins Curtis, who hated abolition with a passion and loved Alvord as his dearest friend.18 His friends on both sides of the battle line saw him as a young man destined for greatness. Even when Alvord sided “with the cause of human freedom,” as he wrote in his letter to the Liberator in September 29, 1838, his friend Curtis was certain he was too wise and too great a man “to have become a dangerous one.”19 But ideas can be dangerous even, or perhaps especially, if they come from a kind and gentle man like Alvord. The legal strategy he devised defeated rendition in Massachusetts and sent his friend Curtis running for cover.20 Exactly what brought Alvord to stand for “humanity” and against rendition is impossible to say. He appears not to have been an outright abolitionist. Unlike Phillips, whose wife Anne radicalized him, Alvord seems not to have had a conversion experience (at least not one that has been documented), and he did not condemn the Constitution, even while he was subverting its rendition clause. What caused him to take a stand, judging by his letter to the Liberator, was his assignment as a member of the judiciary committee to respond to the flood of abolitionist petitions regarding the writ of personal replevin. Unlike habeas corpus, the other great writ of freedom, which was granted at the discretion of the court, the writ of personal replevin automatically called for a jury trial in all cases involving unlawful detention, including rendition cases. There is reason to suspect that the decision to eliminate the writ as part of the codification process was the work of Joseph Story in a move to solidify federal power in rendition cases. Although there is no direct evidence of his responsibility for this decision, it was a known fact that Story had the final say on codification.21 After his forceful anti-jury comments on circuit in U.S. v. Battiste in October 1835, it was also no secret that he considered the jury without judicial oversight to be unreliable and possibly dangerous.22 Alvord was surely aware of these developments, and he was certainly aware, as he wrote in a letter to Charles Sumner during this period, that the codification commission—“fanned by the breath of his Excellency” (i.e. Story)—had no regard for the old procedures like the writ of personal replevin, “which is at once our safety and our pride.”23 Alvord’s report did not openly challenge his old teacher’s pro-rendition constitutional nationalism but subverted it just the same. Following Story, Alvord conceded the supremacy of the federal government and the power of Congress to establish procedures for enforcing the rendition clause in federal court.24 He even acknowledged the legal duty of Massachusetts to render slaves to their masters, although this obligation was “in derogation of her common law and the spirit of her institutions (which would otherwise have made every human being free who should have come within her borders).”25 Alvord also conceded that the state could not force the federal courts to hold a jury trial for alleged slaves, for “no principle is better settled, or more reasonable, than that no state legislature can in any manner control or interfere with the process of the courts of the United States, or prescribe their rules and forms of proceeding under the law of Congress.”26 After giving the forces of law and order their due, however, Alvord fashioned a legal argument that effectively nullified the rendition clause while leaving intact its shell. He did this by reaffirming the traditional concept of federalism that recognized that the procedures adopted by the state courts, and therefore procedural justice, was the exclusive domain of the states. Story had his doctrine of exclusivism; Alvord had his. One centered power in the federal government, the other in state and local institutions. In expounding on the state's right, or indeed obligation, to dispense procedural justice, Alvord's report made two conceptual moves. The first was to place slaveholding on par with all other property rights; how could the slave owners or a property-centered common-law lawyer such as Story object to this parity? Why, Alvord asked with telling logic, should a jury be available for a dispute over $20 and not one regarding human liberty?27 The slave, he explained, is “placed on the same basis, and the owner have the same rights in relation to him, as he had in relation to every other species of personal property.”28 As Story had put the rendition clause on the same plane as other constitutional provisions, so did Alvord, albeit to very different effect. Alvord’s argument also separated substance from procedure. Congress might claim control over the substance (rendition) but it could not control the process by which this provision was enforced. For this proposition, Alvord cited none other than Joseph Story. He wrote: “This clause, as has been shewn by the learned commentator upon the constitution (Mr. Justice Story) is nothing more than declaratory of a truth, which would otherwise have resulted by necessary and unavoidable implication.”29 This meant, Alvord explained, that a state law permitting an attack against rendition through a writ of personal replevin was consistent with the Constitution. Importantly for the ideological and legal battles to come, Alvord’s Report juxtaposed a fair trial by jury against a summary proceeding, and the trustworthiness of local free institutions against faraway slave institutions. In so doing, Alvord defined the structural dualities that would guide the radicals in their successful assault on the conservatives in the 1850s: jury power against judicial power, and, as a corollary, state procedural due process against pro-slavery nationalism. The conservatives distrusted the democratic potential of the trial jury and placed their faith in judicial expertise. Their arguments against the jury, declared Alvord, were “an imputation upon our authorities and citizens and might as well be urged against all our laws, for all of them are useless, unless we can trust in the integrity of our own tribunals for their proper administration.”30 In this way Alvord also addressed the conservative argument that obedience to law, even an unjust law, was the price to pay for law, order, and federal Union. Perhaps Alvord learned from the Chickasaw incident that rendition without due process of law was against the moral instincts of the citizens of Massachusetts.31 In fact, rejection of due process produced not law and order, but violence and chaos. Some in the abolitionist movement did not get much beyond the morality of dismantling unjust law. Alvord, on the other hand, never lost sight of the need for a legal argument to counteract the law-and-order citadel, and he understood that both the development and enforcement of the law was a product of trust in free, democratic institutions. The jury was the supreme example of such an institution. This was the significance of Alvord's report in favor of providing juries in rendition trials; as a result the writ of personal replevin became state law in 1837.32 This writ, and the jury right it represented, would be struck down by the Supreme Court in Prigg and by the Supreme Judicial Court of Massachusetts shortly thereafter in the Latimer case.33 But it would spring up again and again, in the Massachusetts Latimer law of 1843, which was voided by the Fugitive Slave Act of 1850; in the rendition cases and rescue trials before juries in Massachusetts between 1850 and 1854; and finally in the more sweeping personal liberty law passed in Massachusetts in 1855. In these legal duels, the spirit of James Alvord lived on. Without acknowledging what he was doing, he laid the groundwork that ultimately legalized the revolutionary repudiation of the Fugitive Slave Act of 1850. The legal nature of the argument, couched as it was in due process and the jury right, may have disguised the radical nature of the enterprise. Although Wendell Phillips in 1849 termed it a “noble lawlessness,”34 it was not fueled simply by moral outrage but involved legal arguments grounded in a vision of law altogether different from that of the law-and-order conservatives. This vision of law would become clearer when the radical lawyers used Alvord’s ideas to craft a legal strategy that turned the defeat in Prigg into a victory. III. Prigg v. Pennsylvania and the Rise of the Radical Bar in Massachusetts Justice Story's opinion for the court in Prigg v. Pennsylvania presumed to settle the meaning of the rendition clause of the Constitution and subdue the rising sectional conflict surrounding it. The opinion failed in both respects and instead called into existence the organization of radical lawyers that effectively nullified rendition in Massachusetts, humbling the state and national establishment that Story embodied. Due largely to the radical lawyers’ opposition to Prigg—and to their ability to exploit the ambivalence of Story's reasoning—the decision continued to fester until it became a major legal and political turning point in the sectional conflict that led to the civil war. The Prigg case should have been about Margaret Morgan, since it was her quest for freedom that set the case in motion. The law was on her side. Living as a free woman in the free state of Pennsylvania bestowed the presumption of freedom under state law. One of her children, born in Pennsylvania, was unquestionably free. Given these facts, the case should have been returned to the court below for re-argument.35 That did not take place because the case was perceived by both the Court and the parties as a way to clarify the interstate dispute over the meaning of the rendition clause. The specific issue was whether Pennsylvania’s personal liberty law of 1826, passed to prevent the kidnapping of free blacks, was in violation of the rendition clause of the Constitution and the Fugitive Slave Act of l793, which in general terms indicated the process for rendition. Story's opinion for the court struck down the Pennsylvania law as a violation of the rendition clause of the Constitution (and inferentially of the 1793 statute, although that statute was not technically before the court). All the justices, except Justice John McLean from Ohio, agreed that the Pennsylvania statute was unconstitutional, but they were badly split on their reasoning.36 Here we focus on Story’s opinion because it was the immediate catalyst for the rise of the radical bar in Massachusetts, and for their legal strategy based on the theory first articulated by James Alvord. Story's essential holding, one argued by counsel for Maryland, was that the entire rendition process belonged exclusively to the federal government.37 No state law, he reasoned, could interfere with rendition, nor could any state be compelled to assist in the process.38 Story did not address the legitimate concern of Pennsylvania to protect free blacks from kidnappers. Before Prigg was decided, it had been generally assumed that some type of state process was available in rendition cases to determine whether a person claimed to be a fugitive was in fact slave or free.39 Neither the rendition clause nor the Fugitive Slave Act of 1793 were necessarily barriers to such procedures, at least not by their express terms. Prigg changed all that, declaring that there would be no state-provided process for either the fugitive, or, significantly, for the slave owner. Wendell Phillips, Samuel Sewall, and other radical lawyers hated Story's opinion not only for what it did, but also for what it failed to do. Story aimed to solidify federal union by preserving the deal with slavery struck in 1787; the radicals accused him of placating southern slaveholders to preserve their business connections with the manufacturing elite of Massachusetts. What Story's opinion failed to do, which was equally objectionable, was to take advantage of the vagueness of the rendition clause and the Fugitive Slave Act of l793 to inject a measure of traditional due process values into the rendition process, a move which might have appeased the free states and saved Margaret Morgan and her children from enslavement. Story's exclusivist ruling, as the radical lawyers came to perceive, preempted the state-based tradition of procedural due process—including trial by jury—that Alvord had set forth in his 1837 Report. That painful reality was driven home in October 1842, only eight months after Prigg was decided, when Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court reaffirmed Prigg in the Latimer case.40 Shaw had ruled in the Slave Med case in 1836 that slavery was illegal in Massachusetts, and indeed in every transit case before him Shaw ruled for freedom.41 In Latimer, however, he not only affirmed Story's exclusivist doctrine but made explicit what Story's opinion implied: that the state personal liberty law of 1837 granting jury trials in rendition cases was unconstitutional, as was any other state law that impeded the operation of the federal rendition process.42 In opinions written by two of the nation's leading jurists over the course of eight months in 1842, the highest courts of the nation and the state of Massachusetts eliminated due process of law for fugitive slaves and for free blacks living in free states. Because of Prigg, southern slave law that considered slaves as chattel property appeared to be on its way to becoming national law that citizens of free states like Massachusetts were constitutionally obliged to accept. Story and Shaw, legal statesmen dedicated to the omniscient power of law, believed that their decisions would settle the issue, stifle opposition to the recapture of fugitive slaves, and silence the abolitionists. Their opinions communicated that the constitutional compromise with slavery on which federal union rested took precedence over due process. If free blacks were put at risk (a possibility the opinion did not consider), if state authority and the state tradition of due process were diminished, then that was the price that had to be paid for the preservation of the Constitution on which republican civilization depended. State Street and the textile moguls of Merrimack Valley rallied behind Story and Shaw because the union was good for business. Southern slave owners had faith that the federal government would now protect their ownership of slaves. It did not occur to Story that his Prigg opinion would be used to undercut rendition in Massachusetts, drive the champions of law and order from the field, and turn nationalist Massachusetts into a bastion of state rights.43 But that is precisely what happened. Several aspects of the Prigg and Latimer decisions played into the ready hands of the radical lawyers who set out to defeat rendition. On the most obvious level, the decisions cut the law away from the moorings of authority by exposing the seeming hypocrisy of Story and Shaw, both of whom had presented themselves as enemies of slavery. Story had opposed the Missouri Compromise because it expanded slave territory; he had taken a forthright stand against slavery in widely circulated charges to the federal grand juries in Rhode Island and Massachusetts in 1819 and 1820. On circuit in La Jeune Eugenie (1822), he extrapolated from existing doctrine to criminalize the international slave trade, and in the Amistad case in 1841, managed to free the captive Africans. As noted above, Shaw similarly stood against slavery in a series of non-rendition decisions.44 These jurists had so far managed to balance their commitments to law and order and constitutional union, on the one hand, with their opposition to slavery, on the other. Now, thanks to Prigg and Latimer, Story and Shaw could no longer convincingly be both anti-slavery and pro-Constitution. In choosing slavery, they diminished the authority of their argument about the morality of constitutional union and made evident the conflict between these judges’ position on the immorality of slavery and their commitment to the morality of the rule of law. Sewall even took Shaw to task in a public meeting, an unheard of audacity that generated an outcry in the conservative press,45 and further publicized the issue. Wendell Phillips did the same in writing.46 The radicals branded Story “Slave-Catcher-In-Chief For The New England States,” a sure sign that deference to the legal establishment was crumbling.47 With the appearance of the Latimer Journal and North Star in November 1842, the personal attack on both Shaw and Story intensified. When the conservative Law Reporter, edited by Story's student Peleg Chandler, counterattacked, and when Story himself urged his students at the Harvard Law School to save the Constitution from abolitionist demagogues,48 the legal arguments about rendition and the constitutional compromise with slavery became a matter of heated public debate. This public defense by conservatives was precisely what the radicals wanted and what the conservatives hoped a clear rule of law would obviate. The line between law and politics, which had been fundamental to conservative jurisprudence, was becoming blurred. In this new environment, law, at least unjust law, was no longer automatically accepted as authoritative. If lawmakers like Story and Shaw could not be believed, if their interpretation of the Constitution no longer reigned supreme, then uncertainty and chaos took the field. For those who wanted to change the old law, chaos was a good thing—the first step toward just law. For the conservative scions of law and order in Massachusetts, this spelled disaster. Beyond diminishing Story and Shaw, Prigg unleashed the very forces of chaos and disorder it was designed to contain in two additional ways. One concerned the way the decision affected the rendition process in the federal courts, the courts of Massachusetts, and on the streets of Boston. The other major source of chaos concerned Story's doctrine of exclusivism. Its support on the Supreme Court was dubious,49 and its disruption of the traditional relationship between federal and state law was nothing short of radical. Prigg and Latimer created chaos in the rendition process because both decisions invited the capture of allegedly fugitive slaves without the minimal legal process that had been traditionally available in Massachusetts. Story held that the federal government had exclusive control over the rendition process, but the fact was that there were too few federal authorities at the state level to make rendition work (a point that Taney and Daniel made in their separate opinions in Prigg).50 Story believed that state officials were morally and constitutionally obliged to aid in rendition but he also said they could not be compelled to do so.51 In Massachusetts, state officials who complied did so without the full sanction of state law. Instead, they operated outside of established state procedure, which further hurt their credibility in the eyes of the public. This problem was compounded by the fact that slave owners and their agents fabricated criminal charges against the fugitives in order to bring them into custody, so that when state officials cooperated with them, they appeared to be subverting the fair administration of justice. As the Liberator observed, Prigg unleashed a series of “violent and lawless seizures.”52 These unlawful seizures in turn led to unlawful efforts to rescue accused slaves. Rather than settling the law, as Story and the Court aimed to do, Prigg unsettled its authority. By overriding state procedural law with national law, Prigg also altered the traditional understanding of federalism that would have allowed states like Massachusetts to apply their own procedural law to rendition cases, as James Alvord's Report claimed they should.53 The Prigg and Latimer opinions transformed the tenor of the debate over rendition. Whereas the legal strategy and the political debate had focused primarily on the cases of individual fugitives, these decisions made clear that the conflict was also a structural one, involving the operation of the federal system and the spheres of authority of state and federal judges. The radical lawyers in Boston were emboldened to argue violations of due process of law and to depict the judges who upheld the rendition laws as agents of federal imperialism whose claims to authority threatened to destroy local, democratic institutions. In short, Prigg and Latimer gave the radical lawyers a legal vocabulary beyond the injustice of rendition and the immorality of slavery with which to argue their position: now the issue was the right to due process of law and trial by jury, as those rights were embodied in Massachusetts law. Radicalism had begun to don the mantle of law and order. Not only could radical lawyers now use state law to challenge federal law, but they also could claim that Story's opinion in Prigg permitted, perhaps even invited, them to do so. The entering wedge was Story's statement that the states could not be required to aid in the enforcement of national rendition law. If rendition was the exclusive business of national law, as Story asserted, then liberty was the exclusive domain of state law. Thus on November 24, 1842, the Liberator denounced Prigg and Latimer for using tyrannous federal law to invade the “Old Cradle of Liberty.” Chaos came full circle when on the following day the Liberator urged “every son of Massachusetts” to come to the defense of “State rights”—that is, to support the use of state due process to defeat national rendition law. Thanks to the combined impact of Prigg, Latimer, and Alvord’s theory of state-based due process, the issue of rendition in Massachusetts assumed not only a moral dimension but a legal and structural one as well. The strategy of the radical lawyers was to use the tools of law (the procedural law of Massachusetts) to nullify federal law (the Fugitive Slave Act of 1850) as the first step toward creating a new and just law. They put this strategy into effect in the l850s with an unprecedented burst of innovative litigation. In the process the radical bar enlisted the citizens of Massachusetts in a campaign of civil disobedience and made themselves into the first civil rights bar in American history. IV. Taking on the Feds, 1850–1855: Litigation as Nullification The defining element of the l850s for the radical bar was the passage of the draconian Fugitive Slave Act of 1850. This act was part of the omnibus Compromise of 1850 that aimed to quiet the sectional antagonism that had grown to dangerous proportions as a result of the admission of Texas to the Union in 1845 and of the Mexican War in 1846-48. Both events opened up new territory for slavery and reminded free states of the growing dominance of slave interests in the federal government. The central provision of the new law—one designed specifically to repudiate the Latimer law of 1843 that the legislature had passed to subvert the Prigg and Latimer decisions—was the creation of federal commissioners (appointed by federal circuit court judges) armed with quasi-judicial authority to facilitate the return of fugitive slaves. In the summary proceedings before the commissioners, alleged fugitives were explicitly denied the right to testify on their own behalf, and by implication denied the right to state-based due process procedures, including most importantly the right to a trial by jury.54 The new law also explicitly obligated citizens of free states to assist in the rendition process if called upon, and imposed heavy monetary penalties and jail terms for those who opposed the law or in any way impeded its execution.55 It is not clear if the new law was a deliberate attempt to circumvent Story's holding in Prigg that states could not be legally compelled to support rendition. Whether it was worse to bring states into the rendition process or the citizens of those states is a good question. But the fact was, as the abolitionists and the radical lawyers were quick to point out, the 1850 law made Massachusetts citizens complicit in the enforcement of southern slave law that considered human beings as chattel property. The full import of what the new law required of citizens of Massachusetts came home when slave catchers showed up to reclaim their human property: in the case of William and Ellen Craft in November of 1850; of Fredrick “Shadrach” Minkins in February and Thomas Sims in April of 1851; and, most dramatically of all, of Anthony Burns in 1854-55. The legal proceedings before the federal commissioners growing out of these rendition cases, plus the criminal trials in the federal courts sitting in Massachusetts involving those who attempted to rescue the fugitives, called the radical lawyers into action. From 1850 until 1855 the federal, state, and municipal courts in Boston were awash in rendition-related litigation. The stakes were dangerously high for the fugitives who came north seeking freedom, for the 2,000 blacks living on the north slope of Beacon Hill (many of whom were themselves fugitives from slavery),56 for Daniel Webster who had helped pass the new rendition law and who counted on it to further his presidential ambitions, and for Supreme Court Justice Benjamin Robbins Curtis who assumed the mantle of law and order after Webster's death in 1852. When Curtis faced off against the radical lawyers, as he did in the rescue cases, he carried the banner first raised by his teacher and friend Joseph Story. The reputation of these great men was on the line, which is to say that the rendition wars of the 1850s were highly personal as well as legally explosive. The rendition wars were political as well as legal, because the southern states were watching to see if the free states could be trusted to carry out their original promise in Article IV, Section 2, or whether, as Senator James Mason of Virginia warned, the southern states were to rely “upon our own counsels and our own strength.”57 Massachusetts was about to become a national testing ground for the new compromise with slavery; rendition in Boston had become a national issue.58 Both the radical lawyers and southern politicians understood what Justice Curtis tried to resist and what later legal theorists would rediscover: that law and politics at the highest level were symbiotically intertwined. The turning point in the development of the radical strategy was the five-month period between November 1850 and April 1851, when slave catchers appeared in Boston. Veterans from the l840s like Charles M. Ellis, Charles G. Loring, Ellis G. Loring, Phillips, and Sewall stepped forward once again. Growing sectional antagonisms of the late 1840s called forth new recruits to the cause including Richard H. Dana, John P. Hale, Robert Rantoul, and Charles Sumner. Also on board was Robert Morris, who had been befriended by and apprenticed to Charles G. Loring. When the call came for lawyers to volunteer to help the Crafts in 1850, the Liberator reported that some “thirty or forty” lawyers signed up and were “in constant session, devising every legal method to baffle the pursuing bloodhounds.”59 Although some of these lawyers were well-known anti-slavery activists and politicians, others were socially conscious commercial lawyers who were by no means the legal elite of the Boston bar. The radical lawyers closed ranks, organized, and strategized. The best evidence of this inspired coordination is in the pattern and design of their litigation and law-related actions described in this section. In addition, there is direct evidence of coordinated activity. Almost certainly, as the Liberator and other contemporary sources suggest, planning took place in the newly formed Boston Vigilance Committee, which included several prominent radical lawyers on its Executive Committee.60 It was that Committee which collected funds for the defense of both fugitive slaves and rescuers.61 Strategizing also took place in the Court Street law offices of Ellis, Charles G. Loring, Dana, and Sumner.62 In the rescue cases arising from the Burns rendition in l855, for example, Ellis recalled that all the lawyers involved met in his office to settle on a plan of “attack” and to decide what each lawyer’s role was and what they expected Justice Curtis to do.63 As it turned out, Curtis quashed the indictments on a technicality, but not before, in Ellis’s words, “[t]he judge showed himself out, and the temper of those he stood with.” 64 As in all battles, pushing the enemy into the open was a crucial preliminary to victory. While radical tactics were adjusted on the spot to address the unfolding situation, there were well-understood objectives that gave consistency and unity to the radical program. One immediate goal was to prevent fugitives like the Crafts, Minkins, Sims, and Burns from being returned to slavery. The second goal, one that emerged in direct response to the new rendition law as it operated in the context of sectional politics, was to nullify the fugitive slave law, defying the demands of southern slave-holders and the federal government controlled by the slave interest. The third objective of the radical lawyers, one essential to the accomplishment of these first two goals, was to persuade the citizens of Massachusetts to support the campaign to nullify the rendition law and replace it with a law based on equal justice in the courts. The idea that equality before the law was at the core of the radicals’ legal agenda is evidenced by a companion case that was heard at the same time as the rendition cases, Roberts v. City of Boston.65 In that case, Morris (later joined by Sumner) argued against the segregation of the Boston public schools. Although the Roberts case is rarely discussed in connection with the fugitive slave litigation of the same period, the two overlapped not only in the lawyers working on the cases but also in the underlying theory of law that they espoused, which was grounded in a vision of racial equality both in the courts and in civil society. The Roberts plaintiffs lost in the Massachusetts Supreme Judicial Court, but as we shall see, they were vindicated in the legislature. What must be explained is how a group of radical lawyers, even with augmented numbers and a tighter organization, achieved these objectives in opposition to the conservative legal establishment of Massachusetts that had ruled the state for most of the 19th century, that numbered among its champions the likes of Story, Shaw, Webster and Justice Curtis, that claimed Harvard University and Harvard Law School as its power base, that had the backing of the commercial and financial elite and their political allies in the legislature, and could rightly claim to have brought prosperity to the state. Most puzzling of all: how could this band of lawyers get away with waging a war against established law? How could they convince the citizens of Massachusetts to oppose the law when they had, in the words of Justice Curtis, “an intuitive disposition”66 to obey it? How could they convince those citizens, many of whom were doubtful about racial equality, to defend and liberate the likes of Minkins, Sims, and Burns? They succeeded because they had the help of Robert Morris, who called on the black community of Boston for support,67 because they could count on the support of Garrison’s Liberator and on the activism of a growing number of abolition societies spread across the state. They also exploited the growing fear in Massachusetts that there was a conspiracy abroad in the land, that the slave power had taken control of the federal government (which in fact it had), with an eye to turning the nation into a slave nation. They drew on legal arguments to counter the law-and-order arguments of the conservative jurists, so that the people were not forced to choose between law and lawlessness. In sum, they succeeded because they transformed litigation into a tool for legal reform and social change, and in the process, they turned the courtrooms of Boston into civic forums where ordinary citizens could play a direct role in shaping the laws that governed them. To explain the radical victories in the 1850s—the objective of this and the following section—it is necessary to analyze two basic types of legal actions. The first is the rendition process when alleged fugitives appeared before the federal commissioners as provided by the 1850 rendition law. A second category of cases involved those who were indicted in federal court for attempting to rescue the fugitives from federal custody. These cases appeared in the federal circuit and district courts in Boston and, unlike cases arising under the rendition law, involved jury trials. Both types of cases were connected to the overall objectives of the radical bar and took place simultaneously. For analytical purposes, however, this section addresses the rendition cases alone, leaving the jury issue growing out of the rescue trials to the following section. We shall show that both types of cases involved an innovative use of litigation that transformed and even radicalized traditional legal procedures. The strategy in both rendition and rescue cases was to publicize and politicize the legal issues. The arguments of the lawyers were often printed in full and debated in the newspapers so that law, to a remarkable extent, became the language of public discourse. The message was that the rendition law was inhumane and that it could be changed if the people willed it. Displaying the law of rendition as constantly under assault by legal means was to mire this law in chaos. The creation of uncertainty through a series of apparently chaotic legal actions was the logical first step to reforming the law. Chaos also helped to nullify the existing law of rendition by making it too costly or too dangerous to implement. This was the message of each of the four rendition cases in the l850s, and it is not hard to see why this legal assault was so threatening to the forces of law and order. The conservatives might have correctly understood these legal actions to undermine the judge-made legal regime and the separation of law from politics that they had worked so hard to create. The first of those cases originated in October 1850 when southern slave catchers appeared in Boston to return William and Ellen Craft to slavery. The black community of Boston was prepared to resist rendition by force as they had earlier in the rescue of George Latimer. What proved most effective, prophetically as it turned out, was not militant action but a series of civil legal actions brought by the radical lawyers against the “kidnappers,” as the radicals preferred to call them. The two slave catchers were arrested on defamation charges—for claiming that the Crafts were slaves—and their bail set at $10,000 each.68 After being bailed they were charged again on conspiracy to kidnap, and then again for smoking in the street, cursing, carrying concealed weapons, and finally for failing to pay bridge tolls (even though they were being pursued by an angry mob).69 These suits, along with the threat of mob action, effectively drove the slaveholders’ agents back to Georgia, by which time the Crafts were on their way to England and freedom.70 The same pattern of calculated harassment and disruption through gutsy lawyering and innovative litigation was also present in the Shadrach and Sims rendition cases in l851, and even more conspicuously and dramatically in the cases arising out of the Anthony Burns rendition in 1854 and 1855. The various and complex legal actions growing out of these cases appear at first glance to be random and ad hoc, but a broader view reveals a purposeful strategy of litigation on all fronts designed to prevent the execution of the hated law. Consider the tactics used by the radical lawyers to postpone (read disrupt) rendition proceedings before the federal commissioners. Doubtless it was true that the defense often needed more time to mobilize, prepare their arguments, or refine their strategy,71 but why instigate habeas proceedings at all or actions under the writ of personal replevin when the outcome of the proceedings was a foregone conclusion? Each delay in proceedings increased the possibility of a forced rescue, which was already being discussed by these same lawyers in the inner circles of the Vigilance Committee.72 Delay gave more time for the press to report on the hearings and for the lawyers to deliver their anti-slavery message to the people of Boston. Delay also increased the cost of rendition to the slave owners, who had to pay for the food and lodging for their agents, for lawyers, witnesses, plus sundry court and jail fees.73 When the total cost of rendition and the risk of a forced rescue were measured against the market value of the fugitive, it was tempting to cut losses and sell the fugitive to those who planned to free him, or perhaps not start the process of rendition at all.74 In the hands of the radical lawyers, the traditional common law writs of habeas corpus and personal replevin were given new meaning. For example, in the Sims rendition trial, Robert Rantoul turned Shaw's refusal to issue the habeas writ into an opportunity to challenge not just the facts of confinement (the traditional usage of habeas) but also the constitutionality of the law on which confinement was based. In keeping with the strategy of publicizing legal arguments, Richard Dana observed that Rantoul’s brilliant oratory was directed more to the people than to the judge.75 Rantoul, we presume, hoped that his argument would persuade the judge, but in any case, the people read all about it in the newspapers.76 The radical bar fully appreciated that arguing even a losing case had its uses because it not only drew out the proceedings and increased the transaction costs of rendition, but it also gave their side yet another opportunity to “show out” the conservative culprits—be they the federal and state judges or lowly marshals, sheriffs, and jailors who kept the rendition machine working. Coverage and praise from Garrison's Liberator and the constant reporting of the Commonwealth, as well as the critique of more conservative papers, kept the issues in the public eye. Law-savvy non-lawyers with large audiences, like the Reverend Theodore Parker, dramatized legal arguments in language ordinary people could understand.77 The lawyers exposed the conflict between the judges’ positions in opposition to slavery and their support of the jury right (at least in principle), with their actions supporting slave catchers and limiting jury power. Another major litigation tactic of the radical bar was to transform what was supposedly an administrative hearing before a federal functionary into the semblance of a genuine trial. The shift was subtle but unmistakable. In the Burns rendition case, for example, Dana argued learnedly for four and a half hours, rebutting witnesses and contesting evidence, to convince Commissioner Edward Loring that in liberty-loving Massachusetts the benefit of any doubt goes to freedom. Dana was also giving Loring a chance to redeem himself and avoid the wrath of Wendell Phillips. Unfortunately for Burns (and for Loring as well), Dana lost. But what he accomplished in losing, in addition to demonstrating the adversarial fire-power of the radical bar, was to convince those who read his arguments, which Dana carefully provided to the newspapers, that law was on the side of those who defied rendition. That was the ultimate goal of the radical bar. Other effective legal tactics employed in the rendition cases included contesting the arrest warrants used by slave catchers, often brought on fabricated charges to hold alleged fugitives for presentation before the commissioner. If the fugitives were held in state jails (which was against Massachusetts law), that was also challenged in court. Filings in different courts was another familiar tactic, one that postponed decisions and conveyed the impression to the public that the rendition law was in limbo, or that it varied from one judge to the next, or maybe that it was collapsing under its own weight. Before the rendition and rescue cases were over, every local, state, and federal judicial venue in Boston was involved. For example, in April 1851 a habeas action was filed in Massachusetts state court for Thomas Sims, warrants for the arrest of the slave catchers were issued, the federal marshal, Tukey, was arrested for assault on a black person in Boston, a petition was filed with the legislature seeking a jury trial for Sims, and a Massachusetts state senate investigation was initiated to investigate the conduct of the Boston Police in the Sims case. Ordinary citizens might well have been mystified and confused, which was not a good message for conservatives who needed to convince the public that law ruled through judges acting with a consistent, fair, and rational hand. Tertiary lawsuits were also part of the overall picture of activism through litigation. Among the most innovative of those were tort actions against officials who were performing their official duties. Such actions were rare if not unprecedented and were almost always doomed to failure, but not before they made the enforcement of rendition personally costly to those officials who were called out for enforcing an immoral and inhumane law. For example, charges were brought against U. S. District Attorney Lunt, federal commissioner George T. Curtis, and deputy U.S. Marshal Patrick Riley for acts performed in the course of their official duties when they erroneously caused the arrest of Alexander Burton, a black Salem resident.78 Those suits made the national news.79 Personal actions like tort, trespass, and slander may seem minor diversions from the main show, but cumulatively they were remarkably effective because they made life difficult for slave catchers and the keepers of law and order. This barrage of actions culminated in the quasi-legal proceedings instigated by Wendell Phillips to remove Commissioner Loring from his position as probate judge. That hearing, which took place before the judicial committee of the state legislature, was covered extensively in the press, and ended with Edward Loring losing his judgeship and, indirectly, his lectureship at Harvard Law School.80 The message from Loring's fall, and from the other legal actions of the radical bar, was, to quote Dana, that “slave-hunting in Massachusetts was a dangerous as well as a costly operation.”81 This summary of the risk and cost held true for southern agents who came north to claim human property. It also held true for northern lawyers like Seth J. Thomas, who sold their services to slave owners and ran the risk of facing Dana across the table or being eviscerated by Phillips’s rhetoric. Indeed, after Phillips’s public humiliation of Loring, it is hard to imagine why anyone would want the job of federal commissioner. At the beginning of this section we argued that the radical bar had three defining goals: to defeat rendition in individual cases, to nullify the rendition law, and to radicalize public opinion. The latter we address more fully in the following section on the trial jury, but what about rendition and the rendition law? At first glance it would appear that for all their innovative lawyering, the radical lawyers failed. No habeas was issued, nor any writ of personal replevin; they never won a formal victory in court that freed a slave. The learned constitutional arguments, like those of Rantoul in the Sims hearing, or Dana in the Burns case, had no impact on the law. When the dust of battle settled, moreover, the hated rendition law remained on the books, and in some northern jurisdictions it continued to be enforced as part of an effort on the part of the Lincoln administration to keep the border states from seceding.82 Yet the salient fact remains that in the great national test cases in Massachusetts in the 1850s, the enforcement of the Fugitive Slave Act failed miserably. Most importantly, those who broke the law were never punished, although President Fillmore, Daniel Webster, and southern politicians demanded it. The law was effectively nullified by jurors and by normally law-abiding lawyers, using traditional tools of law: legal arguments and evidence. Senator Robert C. Winthrop predicted as much shortly after the passage of the 1850 Fugitive Slave Act, observing: “The South … has overreached itself in pressing this bill. They will get few runaways under it, while it will be a constant source of irritation and inflammation … .”83 Estimates as to the number of slaves who annually escaped to freedom vary from 1,000 to 5,000 during the period between 1830 and 1860.84 During the 1850s, when escapes reached their peak, hundreds, it is safe to say, made their way to freedom through Massachusetts.85 Yet there were only three rendition hearings during the entire decade and only in the cases of Sims and Burns did the slave owners succeed—and Burns ultimately found his way to freedom.86 The rendition law did not work in Massachusetts. It failed in no small part because the radical lawyers instilled in the opponents of the law, black and white, the conviction that just law was on their side. We now turn to how these lawyers did it. V. Law as Politics: The Democratic Jury in the Struggle for Hearts and Minds The radical strategy to nullify the rendition law in Massachusetts would not have succeeded had the citizens not supported it, actively or passively. The radical lawyers understood this and from the beginning they used litigation as an instrument of public persuasion. The legal principle they relied on was state-based procedural due process. Of all the procedural rights, only the trial by jury did what the radicals needed, which was to enlist ordinary citizens directly in the law-making process and, thereby, in the cause of justice. The trial by jury was also a contest between judges, who wanted the jury on their side because it enhanced and legitimated their authority, and the radical lawyers, who were determined to weaken judicial authority by persuading jurors to defy it.87 Jury independence was a major theme of radical protest from the beginning, as is demonstrated by the state laws that reaffirmed the right to a jury trial for alleged fugitives in 1837, 1843, and 1855. These legislative affirmations were both measures of public sentiment as well as important intellectual statements. They also show the relationship between courtroom advocacy and reform legislation during this period, an intertwining which was a signal feature of radical strategy. But these personal liberty statutes did not change the law as it operated, nor did they secure jury trials for the fugitives or help them gain their freedom. The reason, as Alvord foresaw in 1837 and as Story affirmed in Prigg, was that rendition law was federal law and, to the extent that it was enforced in federal forums, was beyond the reach of state procedural justice. Jury trials in rendition cases were specifically prohibited by federal law, because in free states like Massachusetts they would put slave property at risk and undermine the intent of the rendition clause and the 1793 and 1850 rendition statutes. All this changed in February 1851 when the U.S. Attorney delivered indictments to James Scott, Lewis Hayden, Robert Morris, Elizur Wright and others under the Fugitive Slave Act of 1850 and the federal Crimes Act of 1790 for participating in the forceful rescue of Minkins while he was in federal custody.88 Following Judge Peleg Sprague's law-and-order charge, the grand jury indicted all the rescuers. The trials (six in all since Robert Morris and Elizur Wright were tried twice due to mistrials) ran from May 1851 through December 1852 and yielded not a single conviction—a fact the slave states were quick to notice. Even more than the rendition cases themselves, the rescue cases of 1851 put Massachusetts in a state of defiance, or “revolution,” as Benjamin Robbins Curtis called it. As Curtis observed to his distress, the revolution occurred because the radical lawyers turned the trial jury into an instrument of democratic governance, the legal counterpart of the political revolution that was democratizing American politics. Justice Curtis, conservative Whig that he was, believed that popular politics and independent juries were a threat to the rule of law, which he conceived to be the foundation of republican civilization itself. The radicals liked jury independence as much as Justice Curtis feared it, and it fit their strategy perfectly, because as Alexis de Tocqueville observed, the trial jury was both a political and a “judicial” (that is legal) institution.89 Trials were public events—courtroom drama for spectators to watch and read about—that pitted ordinary citizens against the legal aristocracy. Denying jury trials, as Story, Curtis, and Shaw were obliged to do in rendition proceedings, dramatized the elitist pretensions of legal conservatives, who praised juries in principle but subverted them in practice.90 Conservative jurists who sought to deny jury trials or curtail jury independence also found themselves at odds with the legal history of Massachusetts reaching back to the decade preceding the American Revolution when patriot lawyers like John Adams rallied against British efforts to limit local juries. Much like the radical lawyers in the l850s, Adams viewed the jury as an instrument of local democratic governance armed with the power to decide both the facts and the law.91 Adams included the right to a trial by jury in the Massachusetts Constitution of l780, stating: “this method of procedure shall be held sacred.”92 When Justice Curtis tried to curtail jury independence in the rescue cases of the l850s, as we shall see shortly, he put himself at odds with a cherished tradition of his own state. This was the tradition that radical lawyers, following James Alvord, reclaimed.93 Because it was one of the most significant local institutions in the American system of government, the trial jury was at the heart of the radicals’ strategy of pitting state and local free institutions against federal (read southern) tyranny. Although twelve jurors could not make law in the conventional sense, by nullifying an unjust law they could strike a blow for justice. Because they expressed the local community’s understanding of what justice was, jury verdicts also stood as a critical alternative to national law.94 Jury reasoning was not a matter of official record and jury verdicts had no official precedential authority. Still, the arguments the juries heard, and their verdicts, were public. Jury verdicts validated the radical bar’s arguments in cases such as the Robert Morris rescue trial, as we shall see shortly. In the Massachusetts rendition rescue cases, jury verdicts also had a cumulative impact, reinforcing community norms almost always on the side of freedom. The radical lawyers’ arguments assumed that jurors had the authority and the will to defy the instructions of conservative judges such as Sprague and Curtis. Accordingly, the radical bar had first to convince jurors of their power, and second to persuade them to use it for freedom and justice. Jury independence did not guarantee fair-handed justice, but if juries did not always work for democracy, it was in their power to do so, providing lawyers did their job—which brings us to the rescue trials of the l850s.95 Because the defendants in these cases were indicted for violating a federal criminal law, they were without question guaranteed a jury trial, so the real issue was whether the conservative judges or the radical lawyers would control the proceedings. The specific point of dispute and the issue on which all else turned was whether jurors were free to judge the law as well as the facts when rendering their verdict, or whether they were adjuncts of the court whose duty was simply to apply the law as laid down by the judge to the facts as they determined them to be.96 The conservative judges affirmed, and even celebrated, the jury’s power to decide the facts while asserting their own power to decide the law and, importantly, to dictate the law to the jury. The problem was that adjudication was (as it remains today) the application of the law to the facts of the case, and since juries deliberate in secret, it was impossible in practice for conservative judges to police the fact/law distinction and maintain control over juror decision-making. The struggle between these conservative judges and the radical lawyers over the jury’s power figured in each of the rescue trials, and the proceedings were covered extensively in the popular press. The most important and revealing of these trials—the high forensic moment of the 1850s in fact—was U.S. v. Morris, tried first on June 17, 1851, and again after a mistrial from October 31 to November 12, 1851. In this trial Hale and Dana undertook to convince their fellow citizens, those on the jury, those who witnessed the proceedings first-hand, and those who followed the trial in the press, that civil disobedience in the cause of just law was both moral and legal. Their clash with Justice Curtis (who spoke for Story, Webster, and Shaw) encapsulated the jurisprudential and substantive differences separating the democratic bar from the law-and-order establishment. The battle began even before the trial got underway when federal attorney Lunt scoured the state for sympathetic jurors and then rigged the voir dire questions to eliminate those who believed the jury had authority to rule on questions of law in their deliberations. In his legal files, Dana noted the loaded questions Lunt asked: “Have you formed an opinion that the law of The United States, known as the Fugitive Slave Law of 1850, is unconstitutional, so that you cannot convict a person under it for that reason, if the facts alleged in the indictment are proved, and the Court holds the statute to be Constitutional?”97 As the trial was beginning, Lunt discovered that one of the jurors, Dana Walker, had spoken out against slavery and the Fugitive Slave Act to some friends, albeit apparently not very good friends, as they were prepared to testify against Walker. On the basis of their testimony, Lunt moved to impeach Walker from the jury and even threatened to indict him for perjury.98 Dana and Hale fought back with a special plea to the court, which, given Curtis’s obvious bias, was doomed to failure. The whole episode made the national news and put Dana and Hale on warning that the judge’s hand was “on the scale,” as the leading scholar of the case put it.99 When the case was tried on the merits in October 1851, Hale (as senior counsel and the radical's most experienced jury-lawyer) and Dana (the radical bar’s gifted “forum lawyer”) were primed for battle.100 Their opening defense of Morris addressed the matter of Shadrach’s status, that is, whether he was really a slave. They also rebutted evidence purporting to show Morris’s part in the rescue, arguing that it failed to prove anything except that he was witness to the escape. On these and other evidentiary issues, Hale and Dana swamped Lunt, who lived up to his reputation as a legal lightweight.101 What Lunt did or did not do was not determinative, however, since on matters of evidence the Court had the final word. The decisive legal (and political) question was whether the jurors considered themselves bound by Curtis’s instructions to them, or alternatively whether they thought themselves free to determine both the law and the facts. In addressing this fundamental, law-changing question, one on which he had already made up his mind, Curtis instructed Hale to direct his remarks to the judge only, not to the jurors. When Hale continued to urge the jurors to vote their conscience on the Fugitive Slave Act of 1850, that is, to nullify the law as unjust and illegal, Curtis stopped him. When Hale continued to argue for jury independence directly to the judge, the jurors heard him anyway. So did the people of Massachusetts who followed the trial in the press.102 Hale’s argument for jury power was a brilliant show of forensic skill that turned on American authorities who had long agreed that criminal juries had the authority to rule on the law as well as the facts.103 He was a naturally gifted jury-lawyer and an astute politician who understood that law and human emotions were inseparable. Capitalizing on the imprecision of the law/fact distinction, Hale emphasized that the jury decides the facts and interprets the law. He also reminded the jurors that the rendition law was inseparable in its application from southern slave law. To uphold the former made them complicit in the latter, even if they presumed to be dealing only with the facts and not the law: “In the Providence of God, some good will come out of this fugitive slave law. It will bring slavery home to the people of Massachusetts. It comes here into your Court House to-day, with brazen face, and asks you to declare that a human being is a slave. And this you have got to do.” 104 Unless, of course, the jurors used their law-judging authority to vote their conscience. During Hale’s impassioned oration to the jury, there was a murmuring of approval in the courtroom. The Marshal demanded silence and Hale used the moment to drive home his message to the jury: “Yes! silence in this Court! silence the beating of your hearts when you hear such things.” The lawyers appealed to the juror’s conscience, but they also had a legal message for the jury, one calculated to establish the legality of resistance to slavery. Describing Morris’s actions on the day Minkins was rescued, Hale said: “He goes to the Chief Justice to ask a writ of habeas corpus and personal replevin—those two writs which cannot exist side by side with slavery—dear to all—odious only to Tyrants. That is what he does.” Here is the crisp articulation of the lawfulness of the radical position: due process (as symbolized by the writs of liberty) against the arbitrariness of the slave-law commissioner. As Tocqueville said they would be, law and politics were conjoined when Hale closed his argument and the audience reacted (as reported in the Commonwealth): A loud burst of applause came from the audience at the close of Mr. Hale’s eloquent speech, of which we regret to be able to present such a meager sketch; and the Court instructed the Marshal to have such a force of officers as should detect and bring to the bar any who should commit such a breach of decorum again.105Curtis made no effort to answer Hale’s argument. His main concern was to police the boundaries of scientific law, specifically the uniformity of property law as provided for in Article VI of the Constitution, the purpose of which, according to Curtis, was to “secure a uniform and consistent interpretation of the laws and unvarying enforcement of them.”106 Here the common law’s overriding concern for property rights merged with the Constitutional compromise with slavery. Curtis echoed both Story’s opinion in Prigg and the emerging understanding of law that Story championed: a Baconian science that in the hands of expert judges would provide uniform, business-friendly law for the growing national market as it extended its reach across a heterogeneous country.107 Jurors—honest though they might be, and essential as they were to the process of adjudication—were not legal scientists. To allow them to be judges of law would defeat uniformity, because it would allow multiple decision-makers “chosen by lot … out of the body of the people, with no reference to their qualifications to decide questions of law” to stand in judgment of laws passed by the legislature and expounded by the court.108 The bottom line, although it was never spoken by Curtis, was that jury independence in a free state like Massachusetts inevitably put slave property at risk. Legal science, the policy of doctrinal uniformity, and the acceptance of southern property rights in human beings all combined in one seamless argument capped by Curtis’s belief that the continuation of the Union mandated sending human beings back into slavery. To no one’s surprise, then, Curtis rejected Hale’s scholarly argument and charged the jury accordingly. In support of his view, Curtis cited a Massachusetts decision for the proposition that juries are confined to determinations of fact. But that decision, Commonwealth v. Porter, in fact, held that lawyers were entitled to argue law to the jury. The decision proved to be a way station to jury suppression, but it also recognized the important fact that the jury, in rendering a general verdict, unavoidably applies the facts to the law and thereby must interpret the law. As Shaw wrote in that decision: “Address to the jury, upon questions of law embraced by the issue, by the defendant or his counsel, is warranted by the long practice of the courts in this Commonwealth in criminal cases, in which it is within the established authority of a jury, if they see fit, to return a general verdict, embracing the entire issue of law and fact.”109 Even if the jurors did not fully understand why Curtis was wrong on the law, they must have understood from Dana and Hale’s arguments that what was at stake in the trial was the validity of the constitutional compromise with slavery. Significantly, they voted to acquit Morris. What persuaded them to do so? Possibly the evidence against Morris, which was strongly rebutted at trial, was simply lacking. It is equally possible that the jurors, even while deciding according to the evidence, also expressed a commitment to Hale’s argument and their own right to stand in judgment of the law. Hale’s legal arguments were authoritative and compelling, and likely more in line with the juror’s own conception of their role than Curtis’s argument for judicial authority, which it should be remembered, was not yet established law. Also to be considered was the unavoidable obligation in rendering a general verdict to see the case as a whole, despite Curtis’s attempt to draw a bright line between fact and law. In short, it is likely the jurors were doing right by Morris based both on the evidence and their law-judging authority. In so doing they took a stand against the rendition law, defying Justice Curtis along with the slave owners who sought to impose slave law on Massachusetts with the backing of federal force of arms. In the long battle against the conservative legal order in Massachusetts, it was the jury and the legislature—the people, in other words—who had the final word. There were other factors in the transformation, not least of which was the courage and dignity of the fugitives themselves, but the salient factor was the radical lawyers’ use of law to pierce the armor of judicial authority. In 1843, the radicals had lost the criminal trials arising out of the rescue of George Latimer. By 1851, the political landscape had changed. Thanks to Hale and Dana’s arguments in U.S. v. Morris and the other rescue cases, the radicals persuaded the conservative law-abiding citizens of Massachusetts to join the battle for justice, and if not to disobey an unjust law themselves, then to support those who did. Judging by the fact that the government lost all six rescue trials, despite Lunt’s effort to pack the jury and rig voir dire, the radicals had effectively convinced the public that the law was on their side, even in the face of Article IV, Prigg, Latimer, and the Fugitive Slave Act of 1850. The outcomes of the rescue trials were not only defiant but also revolutionary. On this point—perhaps only on this point—Curtis and Phillips agreed.110 The radical lawyers continued to rally around jury independence and jury democracy in the bitter sectional politics of the 1850s. The revolution in print culture spread the word.111 Abolition papers such as Elizur Wright's Commonwealth published Hale’s argument.112 Lysander Spooner, who saw the jury as the voice of the whole country as against the government, began writing his magnum opus on the jury in 1851 during the Sims rescue trials and completed it in 1852.113 By tracing jury authority to the Magna Carta, Spooner put a scholarly foundation under the argument for jury power. Numerous publications and newspaper articles kept the subject alive, as did Hale, Phillips, Dana, Spooner and others who went on the Lyceum circuit to praise the jury.114 Rantoul joined the chorus of praise in his speech to the Democratic Convention in Lynn on April 3, 1851, which linked juries to the general tradition of due process embedded in Massachusetts law.115 In July of 1851, at an event to celebrate Justice Story, Dana’s oration provided yet another paean to the jury.116 And those who were indicted but ultimately not tried, such as Theodore Parker, published descriptions of their jury trials that might have been.117 Legal and political discourse in Massachusetts converged around the jury issue, which was the segue to a larger discussion about the right of free speech, freedom of assembly and petition, equality, and the nature and sources of law.118 Whatever else they accomplished, the radical lawyers launched an unprecedented campaign of civic education about the way law worked and the way it ought to work. No one drove home the message of jury democracy with its political and jurisprudential implications more persuasively than Theodore Parker, whose book The Trial of Theodore Parker hit the press in 1855.119 The book grew out of Parker’s participation in the failed attempt to rescue Anthony Burns. Indeed, the Burns trial, the unsuccessful litigation efforts of the radical bar to forestall rendition, and Burns’s heart-wrenching march in chains through Boston and back to slavery, were all grist for the popular press and constituted a turning point in public opinion against the law-and-order citadel. Parker’s rambling narrative was a fictionalized version of his trial that never happened framed as his address to the jury that was never summoned. Very much like one of his fire-breathing sermons, Parker’s book was a story of good and evil, fusing learned discourse about law and legal history with passionate, highly personal invective. Parker also did something that the radical lawyers, as officers of the court, could not do: he judged the judge. He traced the history of the Curtis family’s involvement in the slave trade, including Charles P. Curtis, the justice’s uncle, who sent a young boy back to slavery, and young Benjamin R. Curtis, who joined his uncle in arguing (in the Slave Med case) that comity required Massachusetts to recognize slave law, an argument summarily rejected by Chief Justice Shaw.120 George Ticknor Curtis was also exposed as one of the “kidnapping commissioners,” along with Edward G. Loring, who was married to Charles P. Curtis’s sister. Parker denounced the whole Curtis family, and especially Justice Curtis as the leader of the tribe, as a “family of man stealers.”121 Parker expounded on the authority of the jury to decide the law as well as facts and, like the radical lawyers since Alvord and Rantoul, he related the jury to due process, and both of these institutions to the law-abiding, freedom-affirming history of Massachusetts dating back to the Revolution.122 Indeed, Parker traced the tradition all the way back to Lexington Green, where his grandfather and the local militia stood down British regulars, warning “if they want to have a war, let it begin here.”123 Whether or not Captain Parker ever said those words, his grandson claimed them and made them his ultimatum to Curtis and his friends on State Street, who once again wanted to destroy American liberty. Parker died in 1860, before he could witness the war he was certain would come, but he and his comrades in the radical bar—he dedicated his book to John P. Hale and Charles M. Ellis, “Magnanimous Lawyers … in a Noble Profession”—helped prepare the people of Massachusetts for the revolution in law and politics that was to come. This revolution was embodied legally in the radically egalitarian Personal Liberty Law of 1855, which included all the procedural rights the radicals had championed for the previous two decades, which is not surprising since in all likelihood Dana and Sumner drafted the bill.124 The writ of habeas corpus was made available to all persons being held in restraint of their liberty and the writ could be issued not only by the state supreme court but by the court of common pleas, or by any justice of the peace, or any police court of any town or city. The right to a jury trial was guaranteed in all such cases, specifically in cases involving fugitive slaves. The full burden of proof in rendition cases rested with the prosecution and was almost impossibly strict, requiring “at least two credible witnesses, or other legal evidence equivalent thereto.” It did not permit the claimant to testify and prohibited testimony of the alleged fugitive against himself.125 State officials were barred from participating in rendition proceedings, lawyers representing slave owners were barred from appearing before courts in the future, and citizens who served as federal commissioners under the rendition law were prohibited from holding state office. Alleged fugitives were entitled to counsel with fees paid by the state. The law also created a tort cause of action for injuries to alleged fugitives caused by rendition proceedings.126 On top of these procedural guarantees—indeed, reflecting the egalitarian premise of due process—another new law passed at the same time reversed Shaw's decision in the Roberts case by guaranteeing that no child be barred from the public schools of Massachusetts on account of “race, color, or religious opinions.” Actions in tort were made available to any child whose rights under the new law were abridged.127 Sumner and Morris, who argued the Roberts case in 1850, were vindicated at last. So too were the band of lawyers who for two decades had championed equality before the law as a core principle of government. No one articulated that principle more eloquently or more in consonance with the strategy of the radical bar than Sumner who, after stating the moral argument for equality, rested his case squarely on state law, specifically the provision in the Massachusetts Constitution of 1780 that “all men, without distinction of color or race, are equal before the law.”128 Morris integrated the Suffolk bar association, and his appearance as joint counsel with Sumner in Roberts was the first example in America of an integrated bar in action. Morris was a tireless champion of Boston's black community, but he was also the favorite of Boston's working class Irish, and a constant friend to the poor and humble of both races. Ellis G. Loring and Dana were also noted for their willingness to represent those who needed assistance, regardless of class.129 Equality before the law for the radical bar was more than an intellectual concept. Due process with its egalitarian underpinnings was the proposition the radicals took to the people in their arguments before the federal commissioners in the many rescue trials and in the speeches that filled the Lyceum halls and newspapers in the 1850s. In doing so, they rejected the conservative view of Story and Curtis, who insisted that the duty of the bench and bar was to curb the popular will, not liberate it. The radicals did not deny the importance of stable law or the role of learned lawyers and judges, but they denied that the legal elite had a monopoly on law. To them, a just law was more important than doctrinal uniformity and stability and to this end they proposed an alternative vision grounded in procedural due process and equality before the law. VI. A Due Process Moment Following Story’s Prigg opinion in 1842 and Shaw’s supporting decision in the Latimer case the following year, the radical lawyers of Boston confronted a seemingly impregnable legal citadel commanded by the most respected legal thinkers of the age and backed by the dominant social, political, and economic establishment of Massachusetts. In the rendition wars that followed, the radicals won the field because they won the support of the people of Massachusetts. They did so for several reasons. The first is that they out-lawyered their opponents. The radical bar was multi-talented, with gifted jury lawyers like Dana and Hale, and brilliant wordsmiths such as Phillips, Sumner, and Parker. Robert Morris provided leadership and an essential connection to the black community of Boston. Alvord and Rantoul were legal theorists who contributed the structural framework for the radicals' litigation and legislative efforts. The radical lawyers also prevailed because they harnessed the democratic potential of litigation as a way to expose judges and their mistaken views of the law, to bring people into the process of governance, and as a means of nullifying unjust law as a necessary first step to the creation of a more just law. Their arguments in the courtroom and in the press exposed the artificial distinction between law and politics championed by conservatives to justify their monopoly on law-making and interpretation. While some scholars have characterized the radical bar’s tactics and arguments as simply obstructionist or even cynical, we see them as rooted in personal idealism and a deep devotion to the legal principles of due process and equality before the law.130 Acknowledging the innovative lawyering of the radical bar suggests that the traditional narrative should be modified. The story of the rendition wars has generally been presented as a battle between positive law and natural justice, a choice between the law-and-order unionism of Story, Webster, and Curtis, on the one hand, and the Christian perfectionism of Garrison and Phillips, on the other.131 We have endeavored to show that without ignoring the moral issues involved in the debate over rendition, the radical bar proposed a third alternative: a substantive and structural legal argument built on due process and equality and rooted in free local institutions.132 This argument demonstrated to the people of Massachusetts that the law was on their side even when they were rebelling against established law and defying the likes of Story, Shaw, and Curtis to do so. Simply stated, the radicals put a legal foundation under civil disobedience—or “revolution,” as Curtis called the campaign against the rendition law. In the process, the radical lawyers challenged the conservative monopoly on jurisprudential thinking and, as Emerson observed, asserted their right to participate in the intellectual debate about “the foundations of law.” Conservative legal science came from the top down and aimed at stability and social control. Doctrinal formalism and textual finality133 were the instruments used by conservatives to shut down radical dissent. The work of judges in their quarters and scholars in their studies was then directed to other lawyers and judges who were expected to spread the word.134 Whig jurists like Curtis, Shaw, and Story believed it was the duty of the aristocratic bench and bar to check the tide of popular democracy that had already transformed American politics. Boston's radical lawyers now threatened to democratize the judicial system as well. The work of the radical bar was “popular constitutionalism,” to use modern terminology.135 Radical jurisprudence originated in the give-and-take of actual litigation and operated on the premise that law could be changed if justice and community sentiment required it. The truth of law was judged not by its “scientific” correctness but pragmatically by the impact it had on real people. Popular law-making was a cooperative venture between lawyers and clients whose grievances educated the lawyers about what the community needed and wanted. In the civic space provided by the courtroom, lawyers could educate the people as to their legal rights. In turn, the people as represented by the jury could—and in the rendition rescue cases did—validate the lawyers' arguments, giving these arguments political legitimacy. Working in tandem, lawyers and juries armed the people of Massachusetts with arguments ordered around the core principle that due process should be available to all members of society regardless of race or class. These ideals of community justice were embodied in the due process and equal rights legislation of 1855, which was a stunning victory for the radical bar and a fit conclusion of their two decades of dedicated labor. As it turned out, this community-based vision of just law disappeared before it could be fully realized. Although Sumner and Phillips continued the good fight—Sumner in his campaign for the 13th Amendment and Phillips in his battle for racial justice and equal rights for women and labor—the accomplishments of the radical lawyers and their allies were soon forgotten. What the brutal necessities of war did not kill, the post-Reconstruction resurgence of racism did.136 Even so, the radical lawyers left an important mark on their own age and a relevant legacy for our own by exposing the vulnerability of entrenched power to democratic lawyering. The radicals were cause-lawyers before modern scholars coined the phrase, and as pioneering advocates for civil rights, they anticipated twentieth-century organizations such as the National Lawyers Guild and the Legal Defense Fund of the NAACP. Indeed, the story of the radical bar extends the tradition of social-justice lawyering in the United States as far back as 1840. The broad-based campaign of civic education they waged in the courts, the legislature, and the press was unique in the history of the young republic, proving that law, politics, and public opinion are inseparably intertwined. The story we have told illustrates that lawyers need not always be a conservative force, as Tocqueville (following Story) suggested, but can be an engine of social change. Theodore Parker made this point in the dedication of his book when he described the radical lawyers as members of a “noble profession” for “their eloquent and fearless defence (sic) of truth, right, and love.”137 Footnotes 1 Story’s speech of December 21st, 1843, was “directed to the abolitionists” and in it he refers directly to the rendition clause and his opinion in Prigg. The speech is recalled by Rutherford B. Hayes, then a student at the Harvard Law School. See 1 Charles Richard Williams, The Life of Rutherford Birchard Hayes 36–38 (1914). 2 Henry Steele Commager, Theodore Parker 211–12 (1936) (quoting Parker). 3 Albert J. von Frank, The Trials of Anthony Burns: Freedom and Slavery in Emerson’s Boston 325 (1998). 4 U.S. Const. art. IV, § 2, para. 1. 5 For a good description of this understanding, see H. Robert Baker, The Fugitive Slave Clause and the Antebellum Constitution, 30 L. & Hist. Rev. 1133 (2012). 6 Don Fehrenbacher refers to the rendition clause as the “one unambiguously proslavery provision of the Constitution.” Don E. Fehrenbacher, The Slave Holding Republic: An Account of the United States Government’s Relations to Slavery 44 (2001). 7 See Leonard W. Levy, Law of the Commonwealth and Chief Justice Shaw 72–78 (1957) (discussing the episode, including the newspaper coverage). 8 Prigg v. Pennsylvania, 41 U.S. 539 (1842); Commonwealth v. Tracy, 46 Mass. 536 (1843). 9 Robert Cover was among the first to treat the abolition lawyers of Boston as a collective force. See Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 159–62, 175–81, 212–23 (1975) (discussing what Cover called the “ideological bar” in the legal battles of the 1850s). While Cover’s book focused on the moral dilemma of anti-slavery judges, his brief treatment of the ideological bar is keenly insightful. He viewed the Boston anti-slavery lawyers’ use of litigation as “cynical.” Looked at over time and in all of its dimensions (which Cover never attempted to do), we view it as strategic, uniquely innovative, and morally purposeful. Cover's later scholarship sets forth a more nuanced view of law's authority, one that understands the possibilities for constructing rival constitutional narratives, which we argue the radical lawyers both produced in the realm of public discourse and brought to bear in legal and political arenas. See Robert M. Cover, The Supreme Court 1982 Term – Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983). We show how the dominant legal order set out to repress the rival legal order espoused by the radicals and how they fought back. 10 There are exceptions to the tendency to treat these episodes as isolated events. See John D. Gordan III, The Fugitive Slave Rescue Trial of Robert Morris: Benjamin Robbins Curtis on the Road to Dred Scott (2013); Steven Lubet, Fugitive Justice: Runaways, Rescuers, and Slavery on Trial (2010); von Frank, supra note 3. While homing in on one case, H. Robert Baker does an admirable job of contextualizing. See H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (2006). Despite the somewhat different time frame and the differing legal traditions of Massachusetts and Wisconsin, the tactics of Glover’s lawyers resemble those of the Boston radicals in important ways, including the reliance on state rights arguments. 11 See Baker, supra note 10 (operating on this premise); see also Baker, supra note 5, at 1147. In this sense, this paper contributes to scholarship by looking with a broader lens at who makes and shapes law. For a discussion of the relevant scholarship, see Douglas NeJaime, Constitutional Change, Courts, and Social Movements, 111 Mich. L. Rev. 877, 877–80 (2013) (book review). See also William E. Forbath, Law and the Shaping of the American Labor Movement (1991); Joel F. Handler, Social Movements and the Legal System (1978); William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062 (2002); Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution, 94 B.U. L. Rev. 669, 671 (2014); Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373 (2007); Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297 (2001). 12 In this regard, see Paul Finkelman, Legal Ethics and Fugitive Slaves: The Anthony Burns Case, Judge Loring, and Abolitionist Attorneys, 17 Cardozo L. Rev. 1793 (1996). 13 For an argument on the importance of common law rights in the thinking of Whig lawyers in America during the founding period, see 1 John Phillip Reid, Constitutional History of the American Revolution 87-95 (1986). 14 For an account of codification in Massachusetts and Story’s role in it, see R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 272–81 (1985). See also Joseph Story et al., Codification of the Common Law: A Report of the Commissioners Appointed to Consider and Report Upon the Practicability and Expediency of Reducing to a Written and Systematic Code the Common Law of Massachusetts, or Any Part Thereof; Made to His Excellency the Governor, January, 1837, in The Miscellaneous Writings of Joseph Story 698–734 (William W. Story ed., 1852). 15 Commonwealth of Mass. H.R., Report on the Trial by Jury in Questions of Personal Freedom, H.R. 51 (1837). 16 See Thomas D. Morris, Free Men All: Personal Liberty Laws of the North, 1780–1861, at 76–78 (1974); 1 Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America 484–85 (1908). 17 Conn. J., June 30, 1829, at 3. 18 For Justice Curtis’s memorial, which contains a brief account of Alvord’s life and career, see 1 Benjamin Robbins Curtis, A Memoir of Benjamin Robbins Curtis 90–94 (Benjamin R. Curtis ed., Bos., Little, Brown & Co. 1879). The Alvord letters in the Sumner correspondence—housed in Houghton Library, Harvard University—are also enlightening. 19 1 Curtis, supra note 18, at 94–95. 20 See Morris, supra note 16, at 77–79 (discussing briefly Alvord’s legal strategy). 21 “If Judge Story be in the commission, & of course at its head,—the work must be substantially his work, whatever aid other commissioners bring … .” Theophilus Parsons to Charles Sumner (Apr. 1836), in Charles Sumner Correspondence (on file with Houghton Library, Harvard University) [hereinafter referred to as Charles Sumner Correspondence] (emphasis in original). 22 U.S. v Battiste, 24 F. Cas. 1042 (C.C.D. Mass. 1835). The Battiste case involved a capital charge brought against the first mate on a slave ship, and it presented Story with an opportunity to declare, “it is the duty of the jury to follow the law, as it is laid down by the court,” and to describe the danger of jury power to the rule of law. For discussion of the case, see Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine 65–69 (1998). See also Barbara Holden-Smith, Lords of Lash, Loom, and Law: Justice Story, Slavery, and Prigg v. Pennsylvania, 78 Cornell L. Rev. 1086, 1109–11 (1993). 23 Letter from James C. Alvord to Charles Sumner (May 3, 1836) (Charles Sumner Correspondence, Houghton Library, Harvard University). The writ of personal replevin figured in some of the earliest freedom-suit cases. In Margaret v. Muzzy—a 1768 case in the Middlesex Inferior Court—the plaintiff replevined herself and won her freedom. See 2 Legal Papers of John Adams 58 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965). 24 Report, supra note 15, at 14. 25 Id. at 9. 26 Id. at 14. 27 Id. at 7. 28 Id. at 20. 29 Id. at 18. 30 Id. at 32. 31 See Levy, supra note 7, at 73–78 (discussing the Chickasaw escape and Sewall’s caning). 32 An Act Further to Protect Personal Liberty, 1843 Mass. Acts 33. For further discussion of northern personal liberty laws, see Morris, supra note 16, 130-48. 33 Commonwealth v. Tracy, 46 Mass. 536 (1843). 34 Liberator (Bos.), Aug. 17, 1849, at 2. 35 See Paul Finkelman, Sorting Out Prigg v. Pennsylvania, 24 Rutgers L.J. 605, 605–65 (1993). 36 See id. (analyzing the divisions on the Prigg Court); see also Leslie Friedman Goldstein, A “Triumph of Freedom” After All? Prigg v. Pennsylvania Re-examined, 29 L. & Hist. Rev. 763, 763–96, 776–81 (2011). 37 Ironically, the southern lawyer, who ordinarily would have been arguing from a state rights point of view, was arguing the nationalist position that the federal government had exclusive control over rendition proceedings. 38 Prigg v. Pennsylvania, 41 U.S. 539, 616 (1842). 39 See Baker, supra note 5, at 1142 (addressing the local understanding of who decides status questions). 40 Commonwealth v. Tracy, 46 Mass. 536 (1843). 41 Commonwealth v. Aves, 35 Mass. 193 (1836). On the transit cases, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (1981). 42 See Levy, supra note 7, at 78–85. For a contemporary account, see The Latimer Case, 5 L. Rep. 481, 481–98 (1843). 43 In the Latimer case, Sewall and Amos Merrill used Story’s exclusivism doctrine to argue that all the proceedings against Latimer were unconstitutional. See Levy, supra note 7, at 79. 44 See U.S. v. Amistad, 40 U.S. 518 (1841); U.S. v. La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Mass. 1822); Joseph Story, A Charge, Delivered to the Grand Juries of the Circuit Court, at October Term, 1819, in Boston, and at November Term, 1819, in Providence, and Published at Their Unanimous Request (1819). Barbara Holden-Smith contends that Story’s anti-slavery reputation is exaggerated. See Holden-Smith, supra note 22, at 1086–1151. 45 For Sewall’s attack on Shaw, see Levy, supra note 7, at 82. See also Liberator (Bos.), Nov. 4, l842 (quoting the Boston Daily Bee on the conservative outcry). 46 Liberator (Bos.), May 19, 1843, at 2. Phillips (in attacking Shaw) said: “I was educated to, and have practiced at the bar; but I must confess that I was astonished to hear a Judge in Massachusetts say, that this decision of the Supreme Court was binding upon the citizens of that state. With all the Saxon notions of freedom that they had inherited, and with all the American principles of liberty which they had wrought out, that there should be a law forbidding them to rescue a brother from slavery! Yet so it is.” 47 The Latimer Case, supra note 42, at 486. 48 See Newmyer, supra note 14, at 356 (discussing Story’s speech to the students of Harvard Law School). 49 Carl B. Swisher, The Taney Period 1836–64, at 541 (1974). 50 See Prigg v. Pennsylvania, 41 U.S. 539, 632 (1842) (Taney, C.J., concurring); id. at 656 (Daniel, J., concurring). 51 “The states cannot, therefore, be compelled to enforce [the provisions of the fugitive slave clause]; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist, that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted [sic] to them by the constitution.” Prigg, 41 U.S. at 615–16. 52 Liberator (Bos.), Nov. 4, 1842. 53 On how Prigg upended the previous Constitutional “settlement” (as he calls it), see Baker, supra note 5, at 1158–60. 54 Story proposed the creation of federal commissioners in fugitive slave cases to Sen. John M. Berrien of Georgia, Chairman of the Senate Judiciary Committee, and this proposal was ultimately implemented in the Act. See Gordan, supra note 10, at 7–8. 55 Act of September 18, 1850, 9 Stat. 462 § 7 (1850). 56 R.J.M. Blackett, Beating Against the Barriers: Biographical Essays in Nineteenth Century Afro-American History 91 (1986). For a general discussion of black life in Boston, see Stephen Kendrick & Paul Kendrick, Sarah’s Long Walk: The Free Blacks of Boston and How Their Struggle for Equality Changed America 21-95 (2004) (discussing “The Slopes of Beacon Hill”). 57 Morris, supra note 16, at 132. 58 See, e.g., Charleston Courier, Feb. 20, 1851 (reporting on the rescue of Shadrach as “by a mob”); Charleston Courier, Mar. 3, 1851 (reporting on indictments in the rescue cases); Charleston Courier, Oct. 13, 1851 (reporting on the appointment of Judge Curtis in the “Shadrach Rescue Cases”); Charleston Courier, June 21, 1851 (reporting on the hung jury in the case of Hayden); Charleston Courier, Feb. 22, 1851 (reporting on the arrest of Wright and Davis); Daily Picayune (New Orleans), Nov. 16, 1851 (reporting on Morris trial, including the jury questioning by Judge Curtis); Miss. Free Trader, Dec. 10, 1851 (reporting on the verdict in the Morris case and the indictment against Wright); Alexandria Gazette (Alexandria, Va), Nov. 14, 1851 (reporting on the “Shadrach rescue riot” and trial of Robert Morris); Alexandria Gazette (Alexandria, Va.), Nov. 7, 1851 (reporting on the Morris trial, noting that the jurors were questioned regarding the constitutionality of the fugitive slave act, and stating, “No one was empaneled who did not give a satisfactory answer”); Sun (Baltimore), Nov. 6, 1851 (reporting on jury questions in Morris trial); Alexandria Gazette, Nov. 3, 1851 (reporting on Morris trial); Ark. Whig, July 27, 1851 (reporting on the Morris trial and the dismissal of the juror Walker for opposing the fugitive slave law). 59 Liberator (Bos.), Nov. 1, 1850, at 2 60 See Austin Bearse, Reminiscences of Fugitive-Slave Law Days in Boston (Arno Press 1969) (1880) (listing Wendell Phillips, Ellis G. Loring, Robert Morris, Charles Ellis, Richard H. Dana, Lewis Hayden, George Merrill, Theodore Parker, Samuel Sewall, and Lysander Spooner as members of the Vigilance Committee; Charles Ellis, Lewis Hayden, and Wendell Phillips on the executive committee; and Samuel Sewall, Ellis G. Loring, and Robert Morris on the Finance Committee); Liberator (Bos.), June 16, 1854 (listing executive committee of Vigilance Committee: Theodore Parker, Samuel G. Howe, C.K. Whipple, Lewis Hayden, Edmond Jackson, Charles M. Ellis, J. R. Smith, Francis Jackson, Wendell Phillips). 61 Bearse, supra note 60, at 21 (discussing letter from Samuel Sewall dated October 19, 1851, stating that more money was needed to fund the defense in the rescue cases). 62 Id. at 25 (describing legal strategizing by Sumner, Rantoul, C. Loring, and Sewall in the Sims case). 63 2 John Weiss, Life and Correspondence of Theodore Parker 147–48 (1864) (observations of Charles M. Ellis). 64 Id. 65 Roberts v. Boston, 59 Mass. (5 Cush.) 198 (1850). 66 Curtis, supra note 18, at 122 (undated letter to a friend estimated to have been written around 1850). 67 Liberator (Bos.), Oct. 11, 1850, at 2 (“Declaration of Sentiments of the Colored Citizens of Boston on the Fugitive Slave Bill” on the motion of Robert Morris). 68 Liberator Bos.), Nov. 1, 1850, at 2. 69 See 2 The Journal of Richard Henry Dana, Jr. 413 (Robert F. Lucid ed., 1968); Liberator (Bos.), Nov. 1, l850; Blackett, supra note 56, at 91–94. 70 The story of the Crafts is told in Blackett’s book. See Blackett, supra note 56, at ch. 2; see also id. at 91–94 (discussing the legal activities of the Vigilance Committee). 71 Liberator (Bos.), Apr. 11, 1851, at 2 (describing the Sims case: “Mr. Sewall, for defense, asked for delay of examination on account of the inability of counsel to prepare a defense on so short a notice. The defendant declared he was a free man, and counsel believed, if time was allowed, that he could not only be proved a free man under the laws of Massachusetts, but under the laws of Georgia also”). 72 See Bearse, supra note 60, at 25–26; see also Liberator (Bos.), Apr. 11, 1851 (advertisement from the Vigilance Committee: “Friend of Slave, throughout the Commonwealth, to report himself in Boston on Friday morning, the 11th instant, to witness the last sad scene of the state’s disgrace, if it shall be found impossible to avert it. Come By The Thousands!”). 73 See Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850–1860, at 185 (1970). 74 Id. 75 1 Charles Francis Adams, Richard Henry Dana: A Biography 186 (1891) (quoting the Apr. 7, 1851, entry in Dana’s Journal). 76 Liberator (Bos.), Apr. 11, 1851 (reprinting Rantoul’s argument); see also Trial of Thomas Sims, on an Issue of Personal Liberty, on the Claim of James Potter, of Georgia, Against Him, as an Alleged Fugitive from Service: Arguments of Robert Rantoul, Jr. and Charles G. Loring, with the Decision of George T. Curtis (1851) (pamphlet). 77 Theodore Parker, The Trial of Theodore Parker, for the “Misdemeanor” of a Speech in Faneuil Hall Against Kidnapping, Before the Circuit Court of the United States, at Boston, April 3, 1855 (Bos., 1855). 78 Liberator (Bos.), Mar. 7, l851, at 3; Salem Reg., Mar. 3, 1851. 79 Alexandria Gazette (Alexandria, Va.), Mar. 1, 1851 (describing Burton’s suit and stating that he sought 10,000 dollars in damages, but misstating the plaintiff’s name as “Benton”). 80 Dana defended his old friend who, after all, did him as many favors as the rendition law allowed, and a few that it did not. Dana’s argument was that removing Loring from his position was not legitimate because the law, which Loring was alleged to have violated, was being applied retroactively. Liberator (Bos.), Mar. 16, 1855. Conscientious lawyer that he was, Dana was consistent in his commitment to rule-of-law principles. On the removal of Loring from office and his lectureship, see Daniel R. Coquillette & Bruce Kimball, On the Battlefield of Merit: Harvard Law School, the First Century 234–35 (2015). See also Lubet, supra note 10, at ch. 11. 81 Adams, supra note 75, at 264. 82 See Campbell, supra note 73, at ch. 9 (discussing the operation of the fugitive slave law during the war). Campbell notes that when 500 contraband black families were sent to Massachusetts during the war, they were denied admission. Id. at 194. This may have been a calculated political or propaganda statement on the part of the south. As the Boston papers reported: “As a part of the systematic attempt to excite fear of a competition of negro labor in the free States, the Post yesterday gave currency to a report that a proposition had been made by General Dix to send five hundred negro families to this state, implying that Gov. Andrew agreed to this scheme.” Bos.Daily Advertiser, Oct. 30, 1862. On November 3, the Advertiser reported that Andrews did not agree to the proposal, stating that because of the weather, “the Northern States are, of all places, the worst possible to select for an asylum.” Boston Daily Advertiser, Nov. 3, 1862. 83 A Memoir of Robert C. Winthrop 136 (Robert C. Winthrop, Jr. ed., Bos., Little, Brown & Co. 2d ed. 1897). 84 Eric Foner, Gateway to Freedom: The Hidden History of the Underground Railroad 4 (2015). 85 According to their records, the Boston Vigilance Committee alone helped forty-nine fugitives to freedom in 1850, and this is not to count the dozens of others who successfully escaped on their own or with the help of others. Lois E. Horton, Kidnapping and Resistance: Antislavery Direct Action in the 1850s, in Passages to Freedom: The Underground Railroad in History and Memory 166–67 (David W. Blight ed., 2004.). 86 Thanks to the efforts of black and white abolitionists, Burns got his freedom, studied religion at Oberlin, and lived and preached in Canada until his death in 1862 at the age of 28. von Frank, supra note 3, at 305. 87 As Tocqueville observed, “The jury … serves to communicate the … spirit of the judges to the minds of all the citizens, and this spirit, with the habits which attend it, is the soundest preparation for free institutions.” 1 Alexis de Tocqueville, Democracy in America 284 (Phillips Bradley ed., 1976). “The jury only sanctions the decision of the judge … by the authority of society which they represent, and he by that reason and of the law.” Id. at 286. 88 See Gordan, supra note 10, at 32–34 (concerning the indictments). 89 Id. at 280–87. 90 For conservative praise of juries, seede Tocqueville, supra note 87, at 280–87. Tocqueville speaks of the jury “as the most energetic means of making the people rule” and at the same time “the most efficacious means of teaching it how to rule well.” Id. at 28; see also The Unsigned Essays of Supreme Court Justice Joseph Story: Early American Views of Law 165–89 (Valerie L. Horowitz ed., 2015) (Story’s essay on the jury). Story, as the anonymous author of the article in Francis Lieber’s Encyclopedia Americana, refers to the jury as “the bulwark of public liberty, and the best safeguard of private rights under our forms of free government.” 91 William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830, at 9, 21 (1994). 92 Mass. Const. pt. 1, art. XV. 93 For a lucid discussion of the pre-Revolution tradition of jury right, in which the colony of Massachusetts figures prominently, see 1 Reid, supra note 13, at 47-59. Nelson’s Americanization of the Common Law contains a masterful analysis of jury authority in Massachusetts, including the jury’s right to rule on both law and fact. Nelson also discusses conservative efforts to curb jury democracy beginning in the early decades of the nineteenth century. 94 Jenny E. Carroll, The Jury’s Second Coming, 100 Geo. L.J. 657, 675–79 (2012). 95 For example, The Liberator editorialized about a fugitive slave case: “Had this case been investigated before a proper tribunal; had a jury sat upon the case, it is not at all probable that Adam Gibson would have been sent back into slavery.” Liberator (Bos.), Jan. 21, 1851, at 2 (discussing the case of Adam Gibson first reported in the conservative Boston Atlas). The Liberator also reported on a bill introduced in the Massachusetts legislature to apply the 1843 Personal Liberty Law to the 1850 federal Fugitive Slave Act, with special reference to the trial by jury. Liberator (Bos.), Apr. 4, 1851. 96 In his charge to the Grand Jury in the Shadrach rescue cases, Judge Sprague explained the conservative duty of juries—why the jury should indict even if it thought the law unjust. When there is a conflict between the morality of the people and the law, he explained the “arbiter must be society, organized society, pronouncing its decision through its regularly constituted agents. This is the moral judgment, the embodied conscience of the political community.” This charge was reprinted in the newspapers, both in and beyond Massachusetts, and was featured on the front page of The Liberator. As if to illustrate the federal-state clash in real time, that same week the Massachusetts Senate called before it the U.S. Marshal Tukey, the Mayor of Boston, and Commissioner George T. Curtis to testify regarding their conduct in the Sims case. 97 Richard Henry Dana Legal Papers, Folder 1068, U.S. v. Morris (on file with American Antiquarian Society, Worcester, Mass.); see also Liberator (Bos.), May 30, 1852 & June 13, 1852 (reporting that in the Scott and Hayden trials the prosecution wanted to ask the jury questions about whether they would follow the law, and Hale opposed on grounds that it would “insult” and “pack the jury”—the judge permitted the questions). 98 Commonwealth (Bos.), July 11, 1851. 99 Gordan, supra note 10, at xviii. Dana’s argument about the government’s illegal attempt to control the jury pool was quoted in the Boston Traveller and reported in the Albany Evening Journal. The coverage followed sectional lines, with the Southern papers like the Alexandria Gazette reporting approvingly that “no one was empaneled who did not give a satisfactory answer.” Alexandria Gazette (Alexandria, Va.), Nov. 7, 1851. The Pennsylvania Freeman, by contrast, noted that the trial was unfair from the start: “When it is considered that such questions were put to each juryman before entering the box, it is hardly possible that any of them could be otherwise than prejudiced against the accused.” Pa. Freeman (Phila.), Nov. 20, 1851. The paper quipped: “The only men whom Massachusetts has thus far tried and condemned of their course in the respect of the Fugitive Slave Law are Daniel Webster and his confederates. In their case the people have recorded a verdict from which there is no hope of appeal.” Id. 100 For a description of Dana as a trial lawyer, see 2 Adams, supra note 75, at 133. The Dana legal papers also reveal a careful and rigorous lawyerly mind. 101 For Webster’s low opinion of Lunt and Lunt’s performance in the rescue trials, see Gary L. Collison, Shadrach Minkins: From Fugitive Slave to Citizen 192–95 (1998). 102 Nat’l Intelligencer (D.C.), Dec. 19, 1851, at 1. 103 For the best scholarly analysis of Curtis’s position on this point, see Gordan, supra note 10, at 62–70. See also Nelson, supra note 91, at 21 (establishing beyond doubt that the early Massachusetts juries “had vast power to find both law and facts”). It was this law-finding function of the jury that explains John Adams’s assumption that the trial jury was an instrument of democratic governance. See 1 Reid, supra note 13, at 50–51. 104 Commonwealth (Bos.), Nov. 14, 1851, at 1. 105 Id. 106 U.S. v. Morris, 26 F. Cas. 1323, 1332 (C.C.D. Mass. 1851). 107 William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education 34–39 (1994), 34–39. 108 Morris, 26 F. Cas. at 1332. 109 Commonwealth v. Porter, 51 Mass. 263, 287 (1845). 110 For Curtis’s view that radical opposition to the Fugitive Slave Act of l850 was a revolutionary act, and for his backhanded praise of Phillips for admitting as much, see Curtis, supra note 18, at 122 (an undated letter to a friend). 111 Jeanine Marie DeLombard, Slavery on Trial: Law, Abolitionism, and Print Culture 7–12 (2007). 112 Commonwealth (Bos.), Nov. 14, 1851, at 1. 113 2 Collected Works of Lysander Spooner 4 (Charles Shively ed., 1971). A book review of Spooner’s The Trial by Jury was published in the The Liberator. See Liberator (Bos.), Dec. 17, 1852. 114 For Hale’s Lyceum appearance, see Richard H. Sewall, John P. Hale and the Politics of Abolition 153 (1965). Even today, Spooner’s scholarship is praised. See Conrad, supra note 22, at 75–88. 115 Robert Rantoul, Jr., Memoirs, Speeches and Writings of Robert Rantoul, Jr. 734, 748–49 (1854). 116 Commonwealth (Bos.), July 25, 1851. 117 See Lawrence B. Goodheart, Abolitionist, Actuary, Atheist: Elizur Wright and the Reform Impulse 135–36 (1990) (noting that Wright published his statement to the jury in The Commonwealth on Dec. 13, 1851, before his trial). 118 Liberator (Bos.), May 24, 1850, at 2. The article describes speech suppression of abolitionists and argues that “[i]t was not an offence against the abolitionists that the mob committed when they broke up Garrison’s meeting, but an offense against the Constitution, against the Union, against the people, against popular rights and against the great cause of human freedom.” 119 Parker, supra note 77. 120 For a discussion of Shaw’s opinion, see Levy, supra note 7, at 64–68. For Parker’s account of Benjamin Robbins Curtis and his uncle in the Slave Med case, see Parker, supra note 77, at 156–62. 121 Levy, supra note 7, at 65. Parker’s bitter critique of Justice Curtis and his family appears at various places throughout the book. For example, he wrote: “When Mr. Webster prostituted himself to the Slave Power this family went out and pimped for him in the streets … .” Parker, supra note 77, at 218. 122 On the jury at this time, see Parker, supra note 77, at 76–81; on the jury’s right to decide law as well as facts, including Justice Curtis’s view, see id. at 89–95. 123 Id. at 220. 124 Dana and Sumner joined in drafting the legislative response to the Fugitive Slave Act of l850. See 2 The Journal of Richard Henry Dana, Jr., supra note 69, at 416 (recounting that: “The last week, Sumner & I have been drawing up laws to meet the dangers & outrages of the Fugitive Slave Bill, at the request of the Legislature.”). It seems very likely they were similarly involved in drafting the 1855 law. 125 An Act to Protect the Rights and Liberties of the People of the Commonwealth of Massachusetts, 1855 Mass. Acts 924. 126 For a contemporary view of just how radical the 1855 legislation seemed to conservatives, see Joel Parker, Personal Liberty Laws (Statutes of Massachusetts) and Slavery in the Territories (Case of Dred Scott) 40 (1861). 127 An Act in Amendment of “An Act Concerning Public Schools,” Passed March Twenty-fifth, Eighteen Hundred and Forty-five, 1855 Mass. Acts 674. It is very probable that Sumner had a hand in drafting this statute, but whether he did, it tracked closely his argument in the 1850 Roberts case. 128 2 Charles Sumner, The Works of Charles Sumner 327–76 (1870); id. at 330 (quoting the Massachusetts Constitution of 1780) (emphasis in original). In the Burns rendition case, Dana argued that the law required “strict adherence to the rule that this man is free until he is proved a slave … after rigid compliance with every form of law which statute, usage, precedent has thrown about the accused as protection.” Seevon Frank, supra note 3, at 179. 129 For Morris’s place of honor in the Suffolk County Bar, see In Memoriam: Robert Morris, Sr. (1883). Ellis G. Loring is praised for his democratic lawyering. Id. at 21. Dana also had a reputation for representing common seamen in their struggles with ship owners. See Richard Henry Dana, Jr., The Seaman’s Friend (Bos., Thomas Groom &Co., 6th ed., rev. & corrected 1851) (discussing Dana’s work in this regard); see also Adams, supra note 75, at 27 (discussing the democratic nature of Dana’s early practice when his office was crowded with “unkempt, roughly dressed seamen,” and smelled “much like a forecastle”). 130 Cover, for example, states “the suspicion, well founded in some instances, was always present that the attorneys … cynically use the courtroom for delay, obstruction, or publicity regardless of the legal merits.” Cover, supra note 9, at 212. 131 See, e.g., id. at 192 (describing the power of positive approaches to law among the radical bar, utopians, and judges); Lubet, supra note 10, at 8 (describing the radical lawyers as focused on technicalities); von Frank, supra note 3, at 180 (describing Dana’s argument in the Burns case as based on “rhetorical address to conscience”). 132 This legal approach is consistent with a tradition in Massachusetts, running back to the revolution, of prioritizing constitutional and common law arguments over natural law arguments. See 1 Reid, supra note 13, at 87-95 (especially the sub-section “The Irrelevancy of Natural Rights”). 133 “The Constitution is to have a fixed, uniform, permanent construction … the same yesterday, today, and forever.” 1 Joseph Story, Commentaries on the Constitution of the United States § 426 (Bos., Hilliard, Gray & Co. 1833). 134 Cover, supra note 9, at 192–93. 135 See, e.g., Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Mark V. Tushnet, Popular Constitutionalism as Political Law, 81 Chi.-Kent L. Rev. 991, 994 (2006). 136 See Gordon S. Barker, The Imperfect Revolution: Anthony Burns and the Landscape of Race in Antebellum America (2010) (looking at the complex social landscape of Massachusetts in the 1850s, focusing on Burns, and offering sobering evidence of racism in Boston). There is evidence that preserving the Union was the primary motivator for Northerners in the Civil War. See Gary W. Gallagher, The Union War (2011). 137 See Parker, supra note 77 (the dedication). © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Legal History Oxford University Press

The Law Wars in Massachusetts, l830-1860: How a Band of Upstart Radical Lawyers Defeated the Forces of Law and Order, and Struck a Blow for Freedom and Equality Under Law

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Abstract The article reframes the debate on the period of rebellion against the fugitive slave clause in Massachusetts in the period leading up to the Civil War. Traditionally this story has been framed as a battle between the Christian morality of the Garrisonians and the positivism of the law-and-order conservatives. In fact, there was a third alternative, one that prevailed for a brief time, grounded in legal principles of due process and equality before the law. We show how the radical lawyers confronted and defeated the conservative legal elite, including the likes of Joseph Story, Daniel Webster and Benjamin Robbins Curtis, using legal arguments and a comprehensive litigation strategy. The story we tell has implications for today, when lawyers and scholars debate the power of legal arguments to effect social change. Let no man think to excuse himself from any duty which [the Constitution] enjoins.              -Joseph Story1 Who is it that oppose the fugitive slave law? Men that have always been on the side of the law and order and do not violate the statutes of man for their own advantage. This disobedience to the fugitive slave law is one of the strongest guarantees for the obedience of any just law.              -Rev. Theodore Parker2 In the glare of passion the foundations of law are searched, and men become masters of the science of liberty.              -Ralph Waldo Emerson3 I.Introduction What is fidelity to law and who defines what law means? How is law made and by whom? How are unjust laws unmade? What gives law its legitimacy? Lawyers and judges in Massachusetts, conservatives and radicals, battled to answer these questions in the decades preceding the Civil War. This intellectual warfare was prompted by the rendition clause of the Constitution, which mandated that fugitive slaves who escaped into free states be returned to their owners, but did not specify by whom.4 Little was known about the rendition clause (it was adopted late in the Convention without debate), except that it was vaguely understood to be a part of the compromise between the free and slave states at the Philadelphia Convention that made federal union possible.5 On its face, however, and in the ways it differed from the other clauses dealing with slavery, the clause was a ticking time bomb. What made it an explosive point of contention—between the slave and free states and between the radical and conservative lawyers of Massachusetts—was that it was not a compromise at all but rather a concession.6 While giving nothing to the free states, the clause required positive compliance on the part of their citizens to work. The rendition clause was also the only clause in the Constitution that could not be activated except by slaves themselves, albeit through resistance. In Massachusetts, the rendition clause was first contested in the 1836 Chickasaw episode, when an agent for a Maryland slave-holder appeared in Boston and attempted to reclaim Eliza Small and Polly Ann Bates who were being held at the request of the slave agent on the brig Chickasaw. In the habeas hearing, Chief Justice Shaw ruled that the two women should be released from confinement, but before his ruling could be implemented they were rescued from the courtroom by a (primarily black) mob that feared the women might be re-arrested despite Shaw's favorable ruling. Samuel E. Sewall, the abolitionist lawyer who argued for the women, was later caned by a southern sympathizer for his efforts. Newspapers in the North and South each put their own spin on the whole episode and drew their own conclusions.7 While the lines of battle were forming in 1836, in our reckoning the war over rendition began in earnest in 1842 and 1843, when a band of idealistic lawyers in Boston organized themselves to oppose the Supreme Court's decision in Prigg v. Pennsylvania and the Massachusetts Supreme Judicial Court's companion decision Commonwealth v. Tracy (referred to subsequently as the Latimer case).8 The legal issue was joined when the forces of law and order mobilized to resist these radicals. The nation, north and south, watched closely in the following decade since the fate of the constitutional compromise with slavery, on which the union rested, appeared to turn on the outcome of the struggle. Our paper focuses on on-the-ground lawyering.9 It aims to understand how a group of outlier radical attorneys dismantled and refuted the arguments of the conservative legal establishment that had held sway in Boston for decades; how they framed the public dialogue about rendition; and how they proposed an egalitarian vision of law to the people of Massachusetts, one in which lawyers and citizens were active participants. The victory of the radicals, we contend, was due to several inter-related factors, starting with their realization that there was strength in numbers and organization. What began in the 1830s with individual efforts of lawyers such as Sewall, developed by the 1840s and 1850s into a highly effective consortium of lawyers, a mobile legal strike force. What these lawyers did, against the odds, was to humble the conservative legal establishment by using litigation, first to nullify the rendition law and then to propose an alternative legal vision grounded in equality before the law, due process, and the jury right. A word about methodology. Much of the scholarship on the rendition conflicts in Massachusetts has concentrated on dramatic moments, leading individual cases, and the judges who decided them.10 In contrast, we have attempted to contextualize individual cases and events over two decades, to search for overall patterns, and to integrate individual legal histories into the overarching legal strategy of the anti-rendition “bar.” We are concerned not only with the major cases in which these lawyers participated, but equally with the motions they brought, large and small, as well as the legislation generated by the litigation. The bold and improvisational legal actions we describe were the defining characteristic of the radical bar and were perfectly suited to its free-flowing organizational structure. Our work supports the view, advocated by some scholars, that the final say on legal questions during this period did not rest with the Supreme Court alone.11 In Massachusetts legal interpretation was understood to be in wider authorship than the high courts of either the nation or the state. Lawyers, juries, and legislators all played an active role in creating legal understandings. We emphasize the importance of the jury to this process of popular legality and focus on the lawyers because they framed the legal issues the judges confronted and because over time they articulated their own view of law.12 The lawyers we consider were a varied group that included abolitionists like Samuel Sewall, Wendell Phillips, and Robert Morris (the young black lawyer who integrated the Suffolk bar). There were anti-slavery lawyer-politicians, such as Charles Sumner and John P. Hale, as well as successful commercial lawyers, such as Hale himself and Richard Henry Dana, Jr., who went on to a career in politics and was known for representing both the highborn and the downtrodden. Morris also maintained a busy professional life and was known to represent poor people both white and black. The legal actions of this varied group effectively nullified the federal rendition law in Massachusetts and undercut the constitutional compromise on which the union rested. Thanks to the radical bar, what happened in Boston became national history. These radical lawyers could not have achieved such a feat without the support, active or passive, of Massachusetts citizens. In garnering that support, the radicals depended on the courage of fugitive slaves whose presence—and whose treatment by the authorities—educated the masses about the true nature of slavery. The black community of Boston played an active role in resisting rendition, as did William Lloyd Garrison and the abolitionists of Boston and Massachusetts, who worked closely with the radical lawyers. But the radical bar was largely responsible for its own success because it recognized the fundamental connection between law and politics. Above all, it realized that litigation could be a form of political discourse and the courtroom a civic forum where ordinary citizens could confront their governors and hold them accountable. In the 1850s the radical bar also encouraged civil disobedience to an unjust law by demonstrating to the law-abiding citizens of Massachusetts that the anti-slavery position was grounded first and foremost in established law.13 Behind the explosion in litigation was a strategy to reframe the debate by pitting state-based procedural law against the rendition law created by the Federal Constitution, statute, as well as federal and state judicial decisions, all backed by federal and state troops. This strategy imparted design and meaning to what at first appears to be a chaotic collection of legal actions. By building on the Massachusetts tradition of procedural justice, and especially by turning the issue of jury independence into a battle weapon, the radicals made due process of law the touchstone of constitutional truth. For this reason, we call this a due process moment. These lawyers put a legal foundation under what might have been a lawless revolution. In the process, they undermined the traditional distinction between legal and political discourse that legal elites used to justify their monopoly on legal truth. In using law to educate—and to nullify—the radicals transformed Massachusetts, historically the home base of constitutional nationalism, into a bastion of state rights based on procedural due process and equality before the law. Those principles assumed amplified persuasive force when contrasted to southern slave law, a contrast that was a standard feature of radical discourse. In developing our argument, we turn first to the theoretical foundation of the radical bar’s actions found in the work of a heretofore obscure but remarkably gifted lawyer-legislator named James C. Alvord. In section two we describe how the radical lawyers transformed the apparent defeat of the anti-slavery forces in Prigg v. Pennsylvania into a legislative victory. In section three we show how the radical bar used litigation to nullify the Fugitive Slave Act of 1850, and how they orchestrated chaos to do so. In section four we consider the role of the jury—and especially the idea of the jury—in the radicals’ campaign to win public support for their law-defying agenda and their vision of procedural justice. We conclude with some reflections on implications of the rendition wars. II. James C. Alvord and the Structural Foundation of Radical Lawyering In 1836, the Massachusetts Legislature undertook a massive omnibus codification project.14 In that codification process, the old writ of personal replevin was removed without discussion. That writ permitted a person held in captivity to obtain a jury trial and was known as a possible procedural avenue for preventing the rendition of fugitive slaves. Abolitionists across Massachusetts petitioned the legislature to recodify the writ, and in response to these petitions the legislature commissioned a report from the committee on the judiciary. This report was written by James C. Alvord, a young legislator and legal scholar who has heretofore remained in the shadows.15 Alvord occupies a unique, and somewhat mysterious, position in the campaign against rendition.16 The village of Greenfield where he grew up was far removed socially and professionally from Boston. Alvord attended Dartmouth College, class of 1827; he studied law for two years at Yale and was admitted to practice in Connecticut in June 1829.17 After only a few months of practice, he entered Harvard Law School in l830 to study under Joseph Story. Brilliance, charisma, and a gift for public speaking got him a lectureship at the Law School with the promise of a distinguished legal career. He chose to make his mark as a legislator, not a litigator: first as state representative from Greenfield, then as state senator from Franklin County, and finally in l838, in a landslide election, as congressman from his district. Alvord died in September 1839 at the age of thirty-one, before taking office. During his short life, he became close friends with fellow law students Charles Sumner and Wendell Phillips, who would lead the anti-rendition bar, and with Benjamin Robbins Curtis, who hated abolition with a passion and loved Alvord as his dearest friend.18 His friends on both sides of the battle line saw him as a young man destined for greatness. Even when Alvord sided “with the cause of human freedom,” as he wrote in his letter to the Liberator in September 29, 1838, his friend Curtis was certain he was too wise and too great a man “to have become a dangerous one.”19 But ideas can be dangerous even, or perhaps especially, if they come from a kind and gentle man like Alvord. The legal strategy he devised defeated rendition in Massachusetts and sent his friend Curtis running for cover.20 Exactly what brought Alvord to stand for “humanity” and against rendition is impossible to say. He appears not to have been an outright abolitionist. Unlike Phillips, whose wife Anne radicalized him, Alvord seems not to have had a conversion experience (at least not one that has been documented), and he did not condemn the Constitution, even while he was subverting its rendition clause. What caused him to take a stand, judging by his letter to the Liberator, was his assignment as a member of the judiciary committee to respond to the flood of abolitionist petitions regarding the writ of personal replevin. Unlike habeas corpus, the other great writ of freedom, which was granted at the discretion of the court, the writ of personal replevin automatically called for a jury trial in all cases involving unlawful detention, including rendition cases. There is reason to suspect that the decision to eliminate the writ as part of the codification process was the work of Joseph Story in a move to solidify federal power in rendition cases. Although there is no direct evidence of his responsibility for this decision, it was a known fact that Story had the final say on codification.21 After his forceful anti-jury comments on circuit in U.S. v. Battiste in October 1835, it was also no secret that he considered the jury without judicial oversight to be unreliable and possibly dangerous.22 Alvord was surely aware of these developments, and he was certainly aware, as he wrote in a letter to Charles Sumner during this period, that the codification commission—“fanned by the breath of his Excellency” (i.e. Story)—had no regard for the old procedures like the writ of personal replevin, “which is at once our safety and our pride.”23 Alvord’s report did not openly challenge his old teacher’s pro-rendition constitutional nationalism but subverted it just the same. Following Story, Alvord conceded the supremacy of the federal government and the power of Congress to establish procedures for enforcing the rendition clause in federal court.24 He even acknowledged the legal duty of Massachusetts to render slaves to their masters, although this obligation was “in derogation of her common law and the spirit of her institutions (which would otherwise have made every human being free who should have come within her borders).”25 Alvord also conceded that the state could not force the federal courts to hold a jury trial for alleged slaves, for “no principle is better settled, or more reasonable, than that no state legislature can in any manner control or interfere with the process of the courts of the United States, or prescribe their rules and forms of proceeding under the law of Congress.”26 After giving the forces of law and order their due, however, Alvord fashioned a legal argument that effectively nullified the rendition clause while leaving intact its shell. He did this by reaffirming the traditional concept of federalism that recognized that the procedures adopted by the state courts, and therefore procedural justice, was the exclusive domain of the states. Story had his doctrine of exclusivism; Alvord had his. One centered power in the federal government, the other in state and local institutions. In expounding on the state's right, or indeed obligation, to dispense procedural justice, Alvord's report made two conceptual moves. The first was to place slaveholding on par with all other property rights; how could the slave owners or a property-centered common-law lawyer such as Story object to this parity? Why, Alvord asked with telling logic, should a jury be available for a dispute over $20 and not one regarding human liberty?27 The slave, he explained, is “placed on the same basis, and the owner have the same rights in relation to him, as he had in relation to every other species of personal property.”28 As Story had put the rendition clause on the same plane as other constitutional provisions, so did Alvord, albeit to very different effect. Alvord’s argument also separated substance from procedure. Congress might claim control over the substance (rendition) but it could not control the process by which this provision was enforced. For this proposition, Alvord cited none other than Joseph Story. He wrote: “This clause, as has been shewn by the learned commentator upon the constitution (Mr. Justice Story) is nothing more than declaratory of a truth, which would otherwise have resulted by necessary and unavoidable implication.”29 This meant, Alvord explained, that a state law permitting an attack against rendition through a writ of personal replevin was consistent with the Constitution. Importantly for the ideological and legal battles to come, Alvord’s Report juxtaposed a fair trial by jury against a summary proceeding, and the trustworthiness of local free institutions against faraway slave institutions. In so doing, Alvord defined the structural dualities that would guide the radicals in their successful assault on the conservatives in the 1850s: jury power against judicial power, and, as a corollary, state procedural due process against pro-slavery nationalism. The conservatives distrusted the democratic potential of the trial jury and placed their faith in judicial expertise. Their arguments against the jury, declared Alvord, were “an imputation upon our authorities and citizens and might as well be urged against all our laws, for all of them are useless, unless we can trust in the integrity of our own tribunals for their proper administration.”30 In this way Alvord also addressed the conservative argument that obedience to law, even an unjust law, was the price to pay for law, order, and federal Union. Perhaps Alvord learned from the Chickasaw incident that rendition without due process of law was against the moral instincts of the citizens of Massachusetts.31 In fact, rejection of due process produced not law and order, but violence and chaos. Some in the abolitionist movement did not get much beyond the morality of dismantling unjust law. Alvord, on the other hand, never lost sight of the need for a legal argument to counteract the law-and-order citadel, and he understood that both the development and enforcement of the law was a product of trust in free, democratic institutions. The jury was the supreme example of such an institution. This was the significance of Alvord's report in favor of providing juries in rendition trials; as a result the writ of personal replevin became state law in 1837.32 This writ, and the jury right it represented, would be struck down by the Supreme Court in Prigg and by the Supreme Judicial Court of Massachusetts shortly thereafter in the Latimer case.33 But it would spring up again and again, in the Massachusetts Latimer law of 1843, which was voided by the Fugitive Slave Act of 1850; in the rendition cases and rescue trials before juries in Massachusetts between 1850 and 1854; and finally in the more sweeping personal liberty law passed in Massachusetts in 1855. In these legal duels, the spirit of James Alvord lived on. Without acknowledging what he was doing, he laid the groundwork that ultimately legalized the revolutionary repudiation of the Fugitive Slave Act of 1850. The legal nature of the argument, couched as it was in due process and the jury right, may have disguised the radical nature of the enterprise. Although Wendell Phillips in 1849 termed it a “noble lawlessness,”34 it was not fueled simply by moral outrage but involved legal arguments grounded in a vision of law altogether different from that of the law-and-order conservatives. This vision of law would become clearer when the radical lawyers used Alvord’s ideas to craft a legal strategy that turned the defeat in Prigg into a victory. III. Prigg v. Pennsylvania and the Rise of the Radical Bar in Massachusetts Justice Story's opinion for the court in Prigg v. Pennsylvania presumed to settle the meaning of the rendition clause of the Constitution and subdue the rising sectional conflict surrounding it. The opinion failed in both respects and instead called into existence the organization of radical lawyers that effectively nullified rendition in Massachusetts, humbling the state and national establishment that Story embodied. Due largely to the radical lawyers’ opposition to Prigg—and to their ability to exploit the ambivalence of Story's reasoning—the decision continued to fester until it became a major legal and political turning point in the sectional conflict that led to the civil war. The Prigg case should have been about Margaret Morgan, since it was her quest for freedom that set the case in motion. The law was on her side. Living as a free woman in the free state of Pennsylvania bestowed the presumption of freedom under state law. One of her children, born in Pennsylvania, was unquestionably free. Given these facts, the case should have been returned to the court below for re-argument.35 That did not take place because the case was perceived by both the Court and the parties as a way to clarify the interstate dispute over the meaning of the rendition clause. The specific issue was whether Pennsylvania’s personal liberty law of 1826, passed to prevent the kidnapping of free blacks, was in violation of the rendition clause of the Constitution and the Fugitive Slave Act of l793, which in general terms indicated the process for rendition. Story's opinion for the court struck down the Pennsylvania law as a violation of the rendition clause of the Constitution (and inferentially of the 1793 statute, although that statute was not technically before the court). All the justices, except Justice John McLean from Ohio, agreed that the Pennsylvania statute was unconstitutional, but they were badly split on their reasoning.36 Here we focus on Story’s opinion because it was the immediate catalyst for the rise of the radical bar in Massachusetts, and for their legal strategy based on the theory first articulated by James Alvord. Story's essential holding, one argued by counsel for Maryland, was that the entire rendition process belonged exclusively to the federal government.37 No state law, he reasoned, could interfere with rendition, nor could any state be compelled to assist in the process.38 Story did not address the legitimate concern of Pennsylvania to protect free blacks from kidnappers. Before Prigg was decided, it had been generally assumed that some type of state process was available in rendition cases to determine whether a person claimed to be a fugitive was in fact slave or free.39 Neither the rendition clause nor the Fugitive Slave Act of 1793 were necessarily barriers to such procedures, at least not by their express terms. Prigg changed all that, declaring that there would be no state-provided process for either the fugitive, or, significantly, for the slave owner. Wendell Phillips, Samuel Sewall, and other radical lawyers hated Story's opinion not only for what it did, but also for what it failed to do. Story aimed to solidify federal union by preserving the deal with slavery struck in 1787; the radicals accused him of placating southern slaveholders to preserve their business connections with the manufacturing elite of Massachusetts. What Story's opinion failed to do, which was equally objectionable, was to take advantage of the vagueness of the rendition clause and the Fugitive Slave Act of l793 to inject a measure of traditional due process values into the rendition process, a move which might have appeased the free states and saved Margaret Morgan and her children from enslavement. Story's exclusivist ruling, as the radical lawyers came to perceive, preempted the state-based tradition of procedural due process—including trial by jury—that Alvord had set forth in his 1837 Report. That painful reality was driven home in October 1842, only eight months after Prigg was decided, when Chief Justice Lemuel Shaw of the Massachusetts Supreme Judicial Court reaffirmed Prigg in the Latimer case.40 Shaw had ruled in the Slave Med case in 1836 that slavery was illegal in Massachusetts, and indeed in every transit case before him Shaw ruled for freedom.41 In Latimer, however, he not only affirmed Story's exclusivist doctrine but made explicit what Story's opinion implied: that the state personal liberty law of 1837 granting jury trials in rendition cases was unconstitutional, as was any other state law that impeded the operation of the federal rendition process.42 In opinions written by two of the nation's leading jurists over the course of eight months in 1842, the highest courts of the nation and the state of Massachusetts eliminated due process of law for fugitive slaves and for free blacks living in free states. Because of Prigg, southern slave law that considered slaves as chattel property appeared to be on its way to becoming national law that citizens of free states like Massachusetts were constitutionally obliged to accept. Story and Shaw, legal statesmen dedicated to the omniscient power of law, believed that their decisions would settle the issue, stifle opposition to the recapture of fugitive slaves, and silence the abolitionists. Their opinions communicated that the constitutional compromise with slavery on which federal union rested took precedence over due process. If free blacks were put at risk (a possibility the opinion did not consider), if state authority and the state tradition of due process were diminished, then that was the price that had to be paid for the preservation of the Constitution on which republican civilization depended. State Street and the textile moguls of Merrimack Valley rallied behind Story and Shaw because the union was good for business. Southern slave owners had faith that the federal government would now protect their ownership of slaves. It did not occur to Story that his Prigg opinion would be used to undercut rendition in Massachusetts, drive the champions of law and order from the field, and turn nationalist Massachusetts into a bastion of state rights.43 But that is precisely what happened. Several aspects of the Prigg and Latimer decisions played into the ready hands of the radical lawyers who set out to defeat rendition. On the most obvious level, the decisions cut the law away from the moorings of authority by exposing the seeming hypocrisy of Story and Shaw, both of whom had presented themselves as enemies of slavery. Story had opposed the Missouri Compromise because it expanded slave territory; he had taken a forthright stand against slavery in widely circulated charges to the federal grand juries in Rhode Island and Massachusetts in 1819 and 1820. On circuit in La Jeune Eugenie (1822), he extrapolated from existing doctrine to criminalize the international slave trade, and in the Amistad case in 1841, managed to free the captive Africans. As noted above, Shaw similarly stood against slavery in a series of non-rendition decisions.44 These jurists had so far managed to balance their commitments to law and order and constitutional union, on the one hand, with their opposition to slavery, on the other. Now, thanks to Prigg and Latimer, Story and Shaw could no longer convincingly be both anti-slavery and pro-Constitution. In choosing slavery, they diminished the authority of their argument about the morality of constitutional union and made evident the conflict between these judges’ position on the immorality of slavery and their commitment to the morality of the rule of law. Sewall even took Shaw to task in a public meeting, an unheard of audacity that generated an outcry in the conservative press,45 and further publicized the issue. Wendell Phillips did the same in writing.46 The radicals branded Story “Slave-Catcher-In-Chief For The New England States,” a sure sign that deference to the legal establishment was crumbling.47 With the appearance of the Latimer Journal and North Star in November 1842, the personal attack on both Shaw and Story intensified. When the conservative Law Reporter, edited by Story's student Peleg Chandler, counterattacked, and when Story himself urged his students at the Harvard Law School to save the Constitution from abolitionist demagogues,48 the legal arguments about rendition and the constitutional compromise with slavery became a matter of heated public debate. This public defense by conservatives was precisely what the radicals wanted and what the conservatives hoped a clear rule of law would obviate. The line between law and politics, which had been fundamental to conservative jurisprudence, was becoming blurred. In this new environment, law, at least unjust law, was no longer automatically accepted as authoritative. If lawmakers like Story and Shaw could not be believed, if their interpretation of the Constitution no longer reigned supreme, then uncertainty and chaos took the field. For those who wanted to change the old law, chaos was a good thing—the first step toward just law. For the conservative scions of law and order in Massachusetts, this spelled disaster. Beyond diminishing Story and Shaw, Prigg unleashed the very forces of chaos and disorder it was designed to contain in two additional ways. One concerned the way the decision affected the rendition process in the federal courts, the courts of Massachusetts, and on the streets of Boston. The other major source of chaos concerned Story's doctrine of exclusivism. Its support on the Supreme Court was dubious,49 and its disruption of the traditional relationship between federal and state law was nothing short of radical. Prigg and Latimer created chaos in the rendition process because both decisions invited the capture of allegedly fugitive slaves without the minimal legal process that had been traditionally available in Massachusetts. Story held that the federal government had exclusive control over the rendition process, but the fact was that there were too few federal authorities at the state level to make rendition work (a point that Taney and Daniel made in their separate opinions in Prigg).50 Story believed that state officials were morally and constitutionally obliged to aid in rendition but he also said they could not be compelled to do so.51 In Massachusetts, state officials who complied did so without the full sanction of state law. Instead, they operated outside of established state procedure, which further hurt their credibility in the eyes of the public. This problem was compounded by the fact that slave owners and their agents fabricated criminal charges against the fugitives in order to bring them into custody, so that when state officials cooperated with them, they appeared to be subverting the fair administration of justice. As the Liberator observed, Prigg unleashed a series of “violent and lawless seizures.”52 These unlawful seizures in turn led to unlawful efforts to rescue accused slaves. Rather than settling the law, as Story and the Court aimed to do, Prigg unsettled its authority. By overriding state procedural law with national law, Prigg also altered the traditional understanding of federalism that would have allowed states like Massachusetts to apply their own procedural law to rendition cases, as James Alvord's Report claimed they should.53 The Prigg and Latimer opinions transformed the tenor of the debate over rendition. Whereas the legal strategy and the political debate had focused primarily on the cases of individual fugitives, these decisions made clear that the conflict was also a structural one, involving the operation of the federal system and the spheres of authority of state and federal judges. The radical lawyers in Boston were emboldened to argue violations of due process of law and to depict the judges who upheld the rendition laws as agents of federal imperialism whose claims to authority threatened to destroy local, democratic institutions. In short, Prigg and Latimer gave the radical lawyers a legal vocabulary beyond the injustice of rendition and the immorality of slavery with which to argue their position: now the issue was the right to due process of law and trial by jury, as those rights were embodied in Massachusetts law. Radicalism had begun to don the mantle of law and order. Not only could radical lawyers now use state law to challenge federal law, but they also could claim that Story's opinion in Prigg permitted, perhaps even invited, them to do so. The entering wedge was Story's statement that the states could not be required to aid in the enforcement of national rendition law. If rendition was the exclusive business of national law, as Story asserted, then liberty was the exclusive domain of state law. Thus on November 24, 1842, the Liberator denounced Prigg and Latimer for using tyrannous federal law to invade the “Old Cradle of Liberty.” Chaos came full circle when on the following day the Liberator urged “every son of Massachusetts” to come to the defense of “State rights”—that is, to support the use of state due process to defeat national rendition law. Thanks to the combined impact of Prigg, Latimer, and Alvord’s theory of state-based due process, the issue of rendition in Massachusetts assumed not only a moral dimension but a legal and structural one as well. The strategy of the radical lawyers was to use the tools of law (the procedural law of Massachusetts) to nullify federal law (the Fugitive Slave Act of 1850) as the first step toward creating a new and just law. They put this strategy into effect in the l850s with an unprecedented burst of innovative litigation. In the process the radical bar enlisted the citizens of Massachusetts in a campaign of civil disobedience and made themselves into the first civil rights bar in American history. IV. Taking on the Feds, 1850–1855: Litigation as Nullification The defining element of the l850s for the radical bar was the passage of the draconian Fugitive Slave Act of 1850. This act was part of the omnibus Compromise of 1850 that aimed to quiet the sectional antagonism that had grown to dangerous proportions as a result of the admission of Texas to the Union in 1845 and of the Mexican War in 1846-48. Both events opened up new territory for slavery and reminded free states of the growing dominance of slave interests in the federal government. The central provision of the new law—one designed specifically to repudiate the Latimer law of 1843 that the legislature had passed to subvert the Prigg and Latimer decisions—was the creation of federal commissioners (appointed by federal circuit court judges) armed with quasi-judicial authority to facilitate the return of fugitive slaves. In the summary proceedings before the commissioners, alleged fugitives were explicitly denied the right to testify on their own behalf, and by implication denied the right to state-based due process procedures, including most importantly the right to a trial by jury.54 The new law also explicitly obligated citizens of free states to assist in the rendition process if called upon, and imposed heavy monetary penalties and jail terms for those who opposed the law or in any way impeded its execution.55 It is not clear if the new law was a deliberate attempt to circumvent Story's holding in Prigg that states could not be legally compelled to support rendition. Whether it was worse to bring states into the rendition process or the citizens of those states is a good question. But the fact was, as the abolitionists and the radical lawyers were quick to point out, the 1850 law made Massachusetts citizens complicit in the enforcement of southern slave law that considered human beings as chattel property. The full import of what the new law required of citizens of Massachusetts came home when slave catchers showed up to reclaim their human property: in the case of William and Ellen Craft in November of 1850; of Fredrick “Shadrach” Minkins in February and Thomas Sims in April of 1851; and, most dramatically of all, of Anthony Burns in 1854-55. The legal proceedings before the federal commissioners growing out of these rendition cases, plus the criminal trials in the federal courts sitting in Massachusetts involving those who attempted to rescue the fugitives, called the radical lawyers into action. From 1850 until 1855 the federal, state, and municipal courts in Boston were awash in rendition-related litigation. The stakes were dangerously high for the fugitives who came north seeking freedom, for the 2,000 blacks living on the north slope of Beacon Hill (many of whom were themselves fugitives from slavery),56 for Daniel Webster who had helped pass the new rendition law and who counted on it to further his presidential ambitions, and for Supreme Court Justice Benjamin Robbins Curtis who assumed the mantle of law and order after Webster's death in 1852. When Curtis faced off against the radical lawyers, as he did in the rescue cases, he carried the banner first raised by his teacher and friend Joseph Story. The reputation of these great men was on the line, which is to say that the rendition wars of the 1850s were highly personal as well as legally explosive. The rendition wars were political as well as legal, because the southern states were watching to see if the free states could be trusted to carry out their original promise in Article IV, Section 2, or whether, as Senator James Mason of Virginia warned, the southern states were to rely “upon our own counsels and our own strength.”57 Massachusetts was about to become a national testing ground for the new compromise with slavery; rendition in Boston had become a national issue.58 Both the radical lawyers and southern politicians understood what Justice Curtis tried to resist and what later legal theorists would rediscover: that law and politics at the highest level were symbiotically intertwined. The turning point in the development of the radical strategy was the five-month period between November 1850 and April 1851, when slave catchers appeared in Boston. Veterans from the l840s like Charles M. Ellis, Charles G. Loring, Ellis G. Loring, Phillips, and Sewall stepped forward once again. Growing sectional antagonisms of the late 1840s called forth new recruits to the cause including Richard H. Dana, John P. Hale, Robert Rantoul, and Charles Sumner. Also on board was Robert Morris, who had been befriended by and apprenticed to Charles G. Loring. When the call came for lawyers to volunteer to help the Crafts in 1850, the Liberator reported that some “thirty or forty” lawyers signed up and were “in constant session, devising every legal method to baffle the pursuing bloodhounds.”59 Although some of these lawyers were well-known anti-slavery activists and politicians, others were socially conscious commercial lawyers who were by no means the legal elite of the Boston bar. The radical lawyers closed ranks, organized, and strategized. The best evidence of this inspired coordination is in the pattern and design of their litigation and law-related actions described in this section. In addition, there is direct evidence of coordinated activity. Almost certainly, as the Liberator and other contemporary sources suggest, planning took place in the newly formed Boston Vigilance Committee, which included several prominent radical lawyers on its Executive Committee.60 It was that Committee which collected funds for the defense of both fugitive slaves and rescuers.61 Strategizing also took place in the Court Street law offices of Ellis, Charles G. Loring, Dana, and Sumner.62 In the rescue cases arising from the Burns rendition in l855, for example, Ellis recalled that all the lawyers involved met in his office to settle on a plan of “attack” and to decide what each lawyer’s role was and what they expected Justice Curtis to do.63 As it turned out, Curtis quashed the indictments on a technicality, but not before, in Ellis’s words, “[t]he judge showed himself out, and the temper of those he stood with.” 64 As in all battles, pushing the enemy into the open was a crucial preliminary to victory. While radical tactics were adjusted on the spot to address the unfolding situation, there were well-understood objectives that gave consistency and unity to the radical program. One immediate goal was to prevent fugitives like the Crafts, Minkins, Sims, and Burns from being returned to slavery. The second goal, one that emerged in direct response to the new rendition law as it operated in the context of sectional politics, was to nullify the fugitive slave law, defying the demands of southern slave-holders and the federal government controlled by the slave interest. The third objective of the radical lawyers, one essential to the accomplishment of these first two goals, was to persuade the citizens of Massachusetts to support the campaign to nullify the rendition law and replace it with a law based on equal justice in the courts. The idea that equality before the law was at the core of the radicals’ legal agenda is evidenced by a companion case that was heard at the same time as the rendition cases, Roberts v. City of Boston.65 In that case, Morris (later joined by Sumner) argued against the segregation of the Boston public schools. Although the Roberts case is rarely discussed in connection with the fugitive slave litigation of the same period, the two overlapped not only in the lawyers working on the cases but also in the underlying theory of law that they espoused, which was grounded in a vision of racial equality both in the courts and in civil society. The Roberts plaintiffs lost in the Massachusetts Supreme Judicial Court, but as we shall see, they were vindicated in the legislature. What must be explained is how a group of radical lawyers, even with augmented numbers and a tighter organization, achieved these objectives in opposition to the conservative legal establishment of Massachusetts that had ruled the state for most of the 19th century, that numbered among its champions the likes of Story, Shaw, Webster and Justice Curtis, that claimed Harvard University and Harvard Law School as its power base, that had the backing of the commercial and financial elite and their political allies in the legislature, and could rightly claim to have brought prosperity to the state. Most puzzling of all: how could this band of lawyers get away with waging a war against established law? How could they convince the citizens of Massachusetts to oppose the law when they had, in the words of Justice Curtis, “an intuitive disposition”66 to obey it? How could they convince those citizens, many of whom were doubtful about racial equality, to defend and liberate the likes of Minkins, Sims, and Burns? They succeeded because they had the help of Robert Morris, who called on the black community of Boston for support,67 because they could count on the support of Garrison’s Liberator and on the activism of a growing number of abolition societies spread across the state. They also exploited the growing fear in Massachusetts that there was a conspiracy abroad in the land, that the slave power had taken control of the federal government (which in fact it had), with an eye to turning the nation into a slave nation. They drew on legal arguments to counter the law-and-order arguments of the conservative jurists, so that the people were not forced to choose between law and lawlessness. In sum, they succeeded because they transformed litigation into a tool for legal reform and social change, and in the process, they turned the courtrooms of Boston into civic forums where ordinary citizens could play a direct role in shaping the laws that governed them. To explain the radical victories in the 1850s—the objective of this and the following section—it is necessary to analyze two basic types of legal actions. The first is the rendition process when alleged fugitives appeared before the federal commissioners as provided by the 1850 rendition law. A second category of cases involved those who were indicted in federal court for attempting to rescue the fugitives from federal custody. These cases appeared in the federal circuit and district courts in Boston and, unlike cases arising under the rendition law, involved jury trials. Both types of cases were connected to the overall objectives of the radical bar and took place simultaneously. For analytical purposes, however, this section addresses the rendition cases alone, leaving the jury issue growing out of the rescue trials to the following section. We shall show that both types of cases involved an innovative use of litigation that transformed and even radicalized traditional legal procedures. The strategy in both rendition and rescue cases was to publicize and politicize the legal issues. The arguments of the lawyers were often printed in full and debated in the newspapers so that law, to a remarkable extent, became the language of public discourse. The message was that the rendition law was inhumane and that it could be changed if the people willed it. Displaying the law of rendition as constantly under assault by legal means was to mire this law in chaos. The creation of uncertainty through a series of apparently chaotic legal actions was the logical first step to reforming the law. Chaos also helped to nullify the existing law of rendition by making it too costly or too dangerous to implement. This was the message of each of the four rendition cases in the l850s, and it is not hard to see why this legal assault was so threatening to the forces of law and order. The conservatives might have correctly understood these legal actions to undermine the judge-made legal regime and the separation of law from politics that they had worked so hard to create. The first of those cases originated in October 1850 when southern slave catchers appeared in Boston to return William and Ellen Craft to slavery. The black community of Boston was prepared to resist rendition by force as they had earlier in the rescue of George Latimer. What proved most effective, prophetically as it turned out, was not militant action but a series of civil legal actions brought by the radical lawyers against the “kidnappers,” as the radicals preferred to call them. The two slave catchers were arrested on defamation charges—for claiming that the Crafts were slaves—and their bail set at $10,000 each.68 After being bailed they were charged again on conspiracy to kidnap, and then again for smoking in the street, cursing, carrying concealed weapons, and finally for failing to pay bridge tolls (even though they were being pursued by an angry mob).69 These suits, along with the threat of mob action, effectively drove the slaveholders’ agents back to Georgia, by which time the Crafts were on their way to England and freedom.70 The same pattern of calculated harassment and disruption through gutsy lawyering and innovative litigation was also present in the Shadrach and Sims rendition cases in l851, and even more conspicuously and dramatically in the cases arising out of the Anthony Burns rendition in 1854 and 1855. The various and complex legal actions growing out of these cases appear at first glance to be random and ad hoc, but a broader view reveals a purposeful strategy of litigation on all fronts designed to prevent the execution of the hated law. Consider the tactics used by the radical lawyers to postpone (read disrupt) rendition proceedings before the federal commissioners. Doubtless it was true that the defense often needed more time to mobilize, prepare their arguments, or refine their strategy,71 but why instigate habeas proceedings at all or actions under the writ of personal replevin when the outcome of the proceedings was a foregone conclusion? Each delay in proceedings increased the possibility of a forced rescue, which was already being discussed by these same lawyers in the inner circles of the Vigilance Committee.72 Delay gave more time for the press to report on the hearings and for the lawyers to deliver their anti-slavery message to the people of Boston. Delay also increased the cost of rendition to the slave owners, who had to pay for the food and lodging for their agents, for lawyers, witnesses, plus sundry court and jail fees.73 When the total cost of rendition and the risk of a forced rescue were measured against the market value of the fugitive, it was tempting to cut losses and sell the fugitive to those who planned to free him, or perhaps not start the process of rendition at all.74 In the hands of the radical lawyers, the traditional common law writs of habeas corpus and personal replevin were given new meaning. For example, in the Sims rendition trial, Robert Rantoul turned Shaw's refusal to issue the habeas writ into an opportunity to challenge not just the facts of confinement (the traditional usage of habeas) but also the constitutionality of the law on which confinement was based. In keeping with the strategy of publicizing legal arguments, Richard Dana observed that Rantoul’s brilliant oratory was directed more to the people than to the judge.75 Rantoul, we presume, hoped that his argument would persuade the judge, but in any case, the people read all about it in the newspapers.76 The radical bar fully appreciated that arguing even a losing case had its uses because it not only drew out the proceedings and increased the transaction costs of rendition, but it also gave their side yet another opportunity to “show out” the conservative culprits—be they the federal and state judges or lowly marshals, sheriffs, and jailors who kept the rendition machine working. Coverage and praise from Garrison's Liberator and the constant reporting of the Commonwealth, as well as the critique of more conservative papers, kept the issues in the public eye. Law-savvy non-lawyers with large audiences, like the Reverend Theodore Parker, dramatized legal arguments in language ordinary people could understand.77 The lawyers exposed the conflict between the judges’ positions in opposition to slavery and their support of the jury right (at least in principle), with their actions supporting slave catchers and limiting jury power. Another major litigation tactic of the radical bar was to transform what was supposedly an administrative hearing before a federal functionary into the semblance of a genuine trial. The shift was subtle but unmistakable. In the Burns rendition case, for example, Dana argued learnedly for four and a half hours, rebutting witnesses and contesting evidence, to convince Commissioner Edward Loring that in liberty-loving Massachusetts the benefit of any doubt goes to freedom. Dana was also giving Loring a chance to redeem himself and avoid the wrath of Wendell Phillips. Unfortunately for Burns (and for Loring as well), Dana lost. But what he accomplished in losing, in addition to demonstrating the adversarial fire-power of the radical bar, was to convince those who read his arguments, which Dana carefully provided to the newspapers, that law was on the side of those who defied rendition. That was the ultimate goal of the radical bar. Other effective legal tactics employed in the rendition cases included contesting the arrest warrants used by slave catchers, often brought on fabricated charges to hold alleged fugitives for presentation before the commissioner. If the fugitives were held in state jails (which was against Massachusetts law), that was also challenged in court. Filings in different courts was another familiar tactic, one that postponed decisions and conveyed the impression to the public that the rendition law was in limbo, or that it varied from one judge to the next, or maybe that it was collapsing under its own weight. Before the rendition and rescue cases were over, every local, state, and federal judicial venue in Boston was involved. For example, in April 1851 a habeas action was filed in Massachusetts state court for Thomas Sims, warrants for the arrest of the slave catchers were issued, the federal marshal, Tukey, was arrested for assault on a black person in Boston, a petition was filed with the legislature seeking a jury trial for Sims, and a Massachusetts state senate investigation was initiated to investigate the conduct of the Boston Police in the Sims case. Ordinary citizens might well have been mystified and confused, which was not a good message for conservatives who needed to convince the public that law ruled through judges acting with a consistent, fair, and rational hand. Tertiary lawsuits were also part of the overall picture of activism through litigation. Among the most innovative of those were tort actions against officials who were performing their official duties. Such actions were rare if not unprecedented and were almost always doomed to failure, but not before they made the enforcement of rendition personally costly to those officials who were called out for enforcing an immoral and inhumane law. For example, charges were brought against U. S. District Attorney Lunt, federal commissioner George T. Curtis, and deputy U.S. Marshal Patrick Riley for acts performed in the course of their official duties when they erroneously caused the arrest of Alexander Burton, a black Salem resident.78 Those suits made the national news.79 Personal actions like tort, trespass, and slander may seem minor diversions from the main show, but cumulatively they were remarkably effective because they made life difficult for slave catchers and the keepers of law and order. This barrage of actions culminated in the quasi-legal proceedings instigated by Wendell Phillips to remove Commissioner Loring from his position as probate judge. That hearing, which took place before the judicial committee of the state legislature, was covered extensively in the press, and ended with Edward Loring losing his judgeship and, indirectly, his lectureship at Harvard Law School.80 The message from Loring's fall, and from the other legal actions of the radical bar, was, to quote Dana, that “slave-hunting in Massachusetts was a dangerous as well as a costly operation.”81 This summary of the risk and cost held true for southern agents who came north to claim human property. It also held true for northern lawyers like Seth J. Thomas, who sold their services to slave owners and ran the risk of facing Dana across the table or being eviscerated by Phillips’s rhetoric. Indeed, after Phillips’s public humiliation of Loring, it is hard to imagine why anyone would want the job of federal commissioner. At the beginning of this section we argued that the radical bar had three defining goals: to defeat rendition in individual cases, to nullify the rendition law, and to radicalize public opinion. The latter we address more fully in the following section on the trial jury, but what about rendition and the rendition law? At first glance it would appear that for all their innovative lawyering, the radical lawyers failed. No habeas was issued, nor any writ of personal replevin; they never won a formal victory in court that freed a slave. The learned constitutional arguments, like those of Rantoul in the Sims hearing, or Dana in the Burns case, had no impact on the law. When the dust of battle settled, moreover, the hated rendition law remained on the books, and in some northern jurisdictions it continued to be enforced as part of an effort on the part of the Lincoln administration to keep the border states from seceding.82 Yet the salient fact remains that in the great national test cases in Massachusetts in the 1850s, the enforcement of the Fugitive Slave Act failed miserably. Most importantly, those who broke the law were never punished, although President Fillmore, Daniel Webster, and southern politicians demanded it. The law was effectively nullified by jurors and by normally law-abiding lawyers, using traditional tools of law: legal arguments and evidence. Senator Robert C. Winthrop predicted as much shortly after the passage of the 1850 Fugitive Slave Act, observing: “The South … has overreached itself in pressing this bill. They will get few runaways under it, while it will be a constant source of irritation and inflammation … .”83 Estimates as to the number of slaves who annually escaped to freedom vary from 1,000 to 5,000 during the period between 1830 and 1860.84 During the 1850s, when escapes reached their peak, hundreds, it is safe to say, made their way to freedom through Massachusetts.85 Yet there were only three rendition hearings during the entire decade and only in the cases of Sims and Burns did the slave owners succeed—and Burns ultimately found his way to freedom.86 The rendition law did not work in Massachusetts. It failed in no small part because the radical lawyers instilled in the opponents of the law, black and white, the conviction that just law was on their side. We now turn to how these lawyers did it. V. Law as Politics: The Democratic Jury in the Struggle for Hearts and Minds The radical strategy to nullify the rendition law in Massachusetts would not have succeeded had the citizens not supported it, actively or passively. The radical lawyers understood this and from the beginning they used litigation as an instrument of public persuasion. The legal principle they relied on was state-based procedural due process. Of all the procedural rights, only the trial by jury did what the radicals needed, which was to enlist ordinary citizens directly in the law-making process and, thereby, in the cause of justice. The trial by jury was also a contest between judges, who wanted the jury on their side because it enhanced and legitimated their authority, and the radical lawyers, who were determined to weaken judicial authority by persuading jurors to defy it.87 Jury independence was a major theme of radical protest from the beginning, as is demonstrated by the state laws that reaffirmed the right to a jury trial for alleged fugitives in 1837, 1843, and 1855. These legislative affirmations were both measures of public sentiment as well as important intellectual statements. They also show the relationship between courtroom advocacy and reform legislation during this period, an intertwining which was a signal feature of radical strategy. But these personal liberty statutes did not change the law as it operated, nor did they secure jury trials for the fugitives or help them gain their freedom. The reason, as Alvord foresaw in 1837 and as Story affirmed in Prigg, was that rendition law was federal law and, to the extent that it was enforced in federal forums, was beyond the reach of state procedural justice. Jury trials in rendition cases were specifically prohibited by federal law, because in free states like Massachusetts they would put slave property at risk and undermine the intent of the rendition clause and the 1793 and 1850 rendition statutes. All this changed in February 1851 when the U.S. Attorney delivered indictments to James Scott, Lewis Hayden, Robert Morris, Elizur Wright and others under the Fugitive Slave Act of 1850 and the federal Crimes Act of 1790 for participating in the forceful rescue of Minkins while he was in federal custody.88 Following Judge Peleg Sprague's law-and-order charge, the grand jury indicted all the rescuers. The trials (six in all since Robert Morris and Elizur Wright were tried twice due to mistrials) ran from May 1851 through December 1852 and yielded not a single conviction—a fact the slave states were quick to notice. Even more than the rendition cases themselves, the rescue cases of 1851 put Massachusetts in a state of defiance, or “revolution,” as Benjamin Robbins Curtis called it. As Curtis observed to his distress, the revolution occurred because the radical lawyers turned the trial jury into an instrument of democratic governance, the legal counterpart of the political revolution that was democratizing American politics. Justice Curtis, conservative Whig that he was, believed that popular politics and independent juries were a threat to the rule of law, which he conceived to be the foundation of republican civilization itself. The radicals liked jury independence as much as Justice Curtis feared it, and it fit their strategy perfectly, because as Alexis de Tocqueville observed, the trial jury was both a political and a “judicial” (that is legal) institution.89 Trials were public events—courtroom drama for spectators to watch and read about—that pitted ordinary citizens against the legal aristocracy. Denying jury trials, as Story, Curtis, and Shaw were obliged to do in rendition proceedings, dramatized the elitist pretensions of legal conservatives, who praised juries in principle but subverted them in practice.90 Conservative jurists who sought to deny jury trials or curtail jury independence also found themselves at odds with the legal history of Massachusetts reaching back to the decade preceding the American Revolution when patriot lawyers like John Adams rallied against British efforts to limit local juries. Much like the radical lawyers in the l850s, Adams viewed the jury as an instrument of local democratic governance armed with the power to decide both the facts and the law.91 Adams included the right to a trial by jury in the Massachusetts Constitution of l780, stating: “this method of procedure shall be held sacred.”92 When Justice Curtis tried to curtail jury independence in the rescue cases of the l850s, as we shall see shortly, he put himself at odds with a cherished tradition of his own state. This was the tradition that radical lawyers, following James Alvord, reclaimed.93 Because it was one of the most significant local institutions in the American system of government, the trial jury was at the heart of the radicals’ strategy of pitting state and local free institutions against federal (read southern) tyranny. Although twelve jurors could not make law in the conventional sense, by nullifying an unjust law they could strike a blow for justice. Because they expressed the local community’s understanding of what justice was, jury verdicts also stood as a critical alternative to national law.94 Jury reasoning was not a matter of official record and jury verdicts had no official precedential authority. Still, the arguments the juries heard, and their verdicts, were public. Jury verdicts validated the radical bar’s arguments in cases such as the Robert Morris rescue trial, as we shall see shortly. In the Massachusetts rendition rescue cases, jury verdicts also had a cumulative impact, reinforcing community norms almost always on the side of freedom. The radical lawyers’ arguments assumed that jurors had the authority and the will to defy the instructions of conservative judges such as Sprague and Curtis. Accordingly, the radical bar had first to convince jurors of their power, and second to persuade them to use it for freedom and justice. Jury independence did not guarantee fair-handed justice, but if juries did not always work for democracy, it was in their power to do so, providing lawyers did their job—which brings us to the rescue trials of the l850s.95 Because the defendants in these cases were indicted for violating a federal criminal law, they were without question guaranteed a jury trial, so the real issue was whether the conservative judges or the radical lawyers would control the proceedings. The specific point of dispute and the issue on which all else turned was whether jurors were free to judge the law as well as the facts when rendering their verdict, or whether they were adjuncts of the court whose duty was simply to apply the law as laid down by the judge to the facts as they determined them to be.96 The conservative judges affirmed, and even celebrated, the jury’s power to decide the facts while asserting their own power to decide the law and, importantly, to dictate the law to the jury. The problem was that adjudication was (as it remains today) the application of the law to the facts of the case, and since juries deliberate in secret, it was impossible in practice for conservative judges to police the fact/law distinction and maintain control over juror decision-making. The struggle between these conservative judges and the radical lawyers over the jury’s power figured in each of the rescue trials, and the proceedings were covered extensively in the popular press. The most important and revealing of these trials—the high forensic moment of the 1850s in fact—was U.S. v. Morris, tried first on June 17, 1851, and again after a mistrial from October 31 to November 12, 1851. In this trial Hale and Dana undertook to convince their fellow citizens, those on the jury, those who witnessed the proceedings first-hand, and those who followed the trial in the press, that civil disobedience in the cause of just law was both moral and legal. Their clash with Justice Curtis (who spoke for Story, Webster, and Shaw) encapsulated the jurisprudential and substantive differences separating the democratic bar from the law-and-order establishment. The battle began even before the trial got underway when federal attorney Lunt scoured the state for sympathetic jurors and then rigged the voir dire questions to eliminate those who believed the jury had authority to rule on questions of law in their deliberations. In his legal files, Dana noted the loaded questions Lunt asked: “Have you formed an opinion that the law of The United States, known as the Fugitive Slave Law of 1850, is unconstitutional, so that you cannot convict a person under it for that reason, if the facts alleged in the indictment are proved, and the Court holds the statute to be Constitutional?”97 As the trial was beginning, Lunt discovered that one of the jurors, Dana Walker, had spoken out against slavery and the Fugitive Slave Act to some friends, albeit apparently not very good friends, as they were prepared to testify against Walker. On the basis of their testimony, Lunt moved to impeach Walker from the jury and even threatened to indict him for perjury.98 Dana and Hale fought back with a special plea to the court, which, given Curtis’s obvious bias, was doomed to failure. The whole episode made the national news and put Dana and Hale on warning that the judge’s hand was “on the scale,” as the leading scholar of the case put it.99 When the case was tried on the merits in October 1851, Hale (as senior counsel and the radical's most experienced jury-lawyer) and Dana (the radical bar’s gifted “forum lawyer”) were primed for battle.100 Their opening defense of Morris addressed the matter of Shadrach’s status, that is, whether he was really a slave. They also rebutted evidence purporting to show Morris’s part in the rescue, arguing that it failed to prove anything except that he was witness to the escape. On these and other evidentiary issues, Hale and Dana swamped Lunt, who lived up to his reputation as a legal lightweight.101 What Lunt did or did not do was not determinative, however, since on matters of evidence the Court had the final word. The decisive legal (and political) question was whether the jurors considered themselves bound by Curtis’s instructions to them, or alternatively whether they thought themselves free to determine both the law and the facts. In addressing this fundamental, law-changing question, one on which he had already made up his mind, Curtis instructed Hale to direct his remarks to the judge only, not to the jurors. When Hale continued to urge the jurors to vote their conscience on the Fugitive Slave Act of 1850, that is, to nullify the law as unjust and illegal, Curtis stopped him. When Hale continued to argue for jury independence directly to the judge, the jurors heard him anyway. So did the people of Massachusetts who followed the trial in the press.102 Hale’s argument for jury power was a brilliant show of forensic skill that turned on American authorities who had long agreed that criminal juries had the authority to rule on the law as well as the facts.103 He was a naturally gifted jury-lawyer and an astute politician who understood that law and human emotions were inseparable. Capitalizing on the imprecision of the law/fact distinction, Hale emphasized that the jury decides the facts and interprets the law. He also reminded the jurors that the rendition law was inseparable in its application from southern slave law. To uphold the former made them complicit in the latter, even if they presumed to be dealing only with the facts and not the law: “In the Providence of God, some good will come out of this fugitive slave law. It will bring slavery home to the people of Massachusetts. It comes here into your Court House to-day, with brazen face, and asks you to declare that a human being is a slave. And this you have got to do.” 104 Unless, of course, the jurors used their law-judging authority to vote their conscience. During Hale’s impassioned oration to the jury, there was a murmuring of approval in the courtroom. The Marshal demanded silence and Hale used the moment to drive home his message to the jury: “Yes! silence in this Court! silence the beating of your hearts when you hear such things.” The lawyers appealed to the juror’s conscience, but they also had a legal message for the jury, one calculated to establish the legality of resistance to slavery. Describing Morris’s actions on the day Minkins was rescued, Hale said: “He goes to the Chief Justice to ask a writ of habeas corpus and personal replevin—those two writs which cannot exist side by side with slavery—dear to all—odious only to Tyrants. That is what he does.” Here is the crisp articulation of the lawfulness of the radical position: due process (as symbolized by the writs of liberty) against the arbitrariness of the slave-law commissioner. As Tocqueville said they would be, law and politics were conjoined when Hale closed his argument and the audience reacted (as reported in the Commonwealth): A loud burst of applause came from the audience at the close of Mr. Hale’s eloquent speech, of which we regret to be able to present such a meager sketch; and the Court instructed the Marshal to have such a force of officers as should detect and bring to the bar any who should commit such a breach of decorum again.105Curtis made no effort to answer Hale’s argument. His main concern was to police the boundaries of scientific law, specifically the uniformity of property law as provided for in Article VI of the Constitution, the purpose of which, according to Curtis, was to “secure a uniform and consistent interpretation of the laws and unvarying enforcement of them.”106 Here the common law’s overriding concern for property rights merged with the Constitutional compromise with slavery. Curtis echoed both Story’s opinion in Prigg and the emerging understanding of law that Story championed: a Baconian science that in the hands of expert judges would provide uniform, business-friendly law for the growing national market as it extended its reach across a heterogeneous country.107 Jurors—honest though they might be, and essential as they were to the process of adjudication—were not legal scientists. To allow them to be judges of law would defeat uniformity, because it would allow multiple decision-makers “chosen by lot … out of the body of the people, with no reference to their qualifications to decide questions of law” to stand in judgment of laws passed by the legislature and expounded by the court.108 The bottom line, although it was never spoken by Curtis, was that jury independence in a free state like Massachusetts inevitably put slave property at risk. Legal science, the policy of doctrinal uniformity, and the acceptance of southern property rights in human beings all combined in one seamless argument capped by Curtis’s belief that the continuation of the Union mandated sending human beings back into slavery. To no one’s surprise, then, Curtis rejected Hale’s scholarly argument and charged the jury accordingly. In support of his view, Curtis cited a Massachusetts decision for the proposition that juries are confined to determinations of fact. But that decision, Commonwealth v. Porter, in fact, held that lawyers were entitled to argue law to the jury. The decision proved to be a way station to jury suppression, but it also recognized the important fact that the jury, in rendering a general verdict, unavoidably applies the facts to the law and thereby must interpret the law. As Shaw wrote in that decision: “Address to the jury, upon questions of law embraced by the issue, by the defendant or his counsel, is warranted by the long practice of the courts in this Commonwealth in criminal cases, in which it is within the established authority of a jury, if they see fit, to return a general verdict, embracing the entire issue of law and fact.”109 Even if the jurors did not fully understand why Curtis was wrong on the law, they must have understood from Dana and Hale’s arguments that what was at stake in the trial was the validity of the constitutional compromise with slavery. Significantly, they voted to acquit Morris. What persuaded them to do so? Possibly the evidence against Morris, which was strongly rebutted at trial, was simply lacking. It is equally possible that the jurors, even while deciding according to the evidence, also expressed a commitment to Hale’s argument and their own right to stand in judgment of the law. Hale’s legal arguments were authoritative and compelling, and likely more in line with the juror’s own conception of their role than Curtis’s argument for judicial authority, which it should be remembered, was not yet established law. Also to be considered was the unavoidable obligation in rendering a general verdict to see the case as a whole, despite Curtis’s attempt to draw a bright line between fact and law. In short, it is likely the jurors were doing right by Morris based both on the evidence and their law-judging authority. In so doing they took a stand against the rendition law, defying Justice Curtis along with the slave owners who sought to impose slave law on Massachusetts with the backing of federal force of arms. In the long battle against the conservative legal order in Massachusetts, it was the jury and the legislature—the people, in other words—who had the final word. There were other factors in the transformation, not least of which was the courage and dignity of the fugitives themselves, but the salient factor was the radical lawyers’ use of law to pierce the armor of judicial authority. In 1843, the radicals had lost the criminal trials arising out of the rescue of George Latimer. By 1851, the political landscape had changed. Thanks to Hale and Dana’s arguments in U.S. v. Morris and the other rescue cases, the radicals persuaded the conservative law-abiding citizens of Massachusetts to join the battle for justice, and if not to disobey an unjust law themselves, then to support those who did. Judging by the fact that the government lost all six rescue trials, despite Lunt’s effort to pack the jury and rig voir dire, the radicals had effectively convinced the public that the law was on their side, even in the face of Article IV, Prigg, Latimer, and the Fugitive Slave Act of 1850. The outcomes of the rescue trials were not only defiant but also revolutionary. On this point—perhaps only on this point—Curtis and Phillips agreed.110 The radical lawyers continued to rally around jury independence and jury democracy in the bitter sectional politics of the 1850s. The revolution in print culture spread the word.111 Abolition papers such as Elizur Wright's Commonwealth published Hale’s argument.112 Lysander Spooner, who saw the jury as the voice of the whole country as against the government, began writing his magnum opus on the jury in 1851 during the Sims rescue trials and completed it in 1852.113 By tracing jury authority to the Magna Carta, Spooner put a scholarly foundation under the argument for jury power. Numerous publications and newspaper articles kept the subject alive, as did Hale, Phillips, Dana, Spooner and others who went on the Lyceum circuit to praise the jury.114 Rantoul joined the chorus of praise in his speech to the Democratic Convention in Lynn on April 3, 1851, which linked juries to the general tradition of due process embedded in Massachusetts law.115 In July of 1851, at an event to celebrate Justice Story, Dana’s oration provided yet another paean to the jury.116 And those who were indicted but ultimately not tried, such as Theodore Parker, published descriptions of their jury trials that might have been.117 Legal and political discourse in Massachusetts converged around the jury issue, which was the segue to a larger discussion about the right of free speech, freedom of assembly and petition, equality, and the nature and sources of law.118 Whatever else they accomplished, the radical lawyers launched an unprecedented campaign of civic education about the way law worked and the way it ought to work. No one drove home the message of jury democracy with its political and jurisprudential implications more persuasively than Theodore Parker, whose book The Trial of Theodore Parker hit the press in 1855.119 The book grew out of Parker’s participation in the failed attempt to rescue Anthony Burns. Indeed, the Burns trial, the unsuccessful litigation efforts of the radical bar to forestall rendition, and Burns’s heart-wrenching march in chains through Boston and back to slavery, were all grist for the popular press and constituted a turning point in public opinion against the law-and-order citadel. Parker’s rambling narrative was a fictionalized version of his trial that never happened framed as his address to the jury that was never summoned. Very much like one of his fire-breathing sermons, Parker’s book was a story of good and evil, fusing learned discourse about law and legal history with passionate, highly personal invective. Parker also did something that the radical lawyers, as officers of the court, could not do: he judged the judge. He traced the history of the Curtis family’s involvement in the slave trade, including Charles P. Curtis, the justice’s uncle, who sent a young boy back to slavery, and young Benjamin R. Curtis, who joined his uncle in arguing (in the Slave Med case) that comity required Massachusetts to recognize slave law, an argument summarily rejected by Chief Justice Shaw.120 George Ticknor Curtis was also exposed as one of the “kidnapping commissioners,” along with Edward G. Loring, who was married to Charles P. Curtis’s sister. Parker denounced the whole Curtis family, and especially Justice Curtis as the leader of the tribe, as a “family of man stealers.”121 Parker expounded on the authority of the jury to decide the law as well as facts and, like the radical lawyers since Alvord and Rantoul, he related the jury to due process, and both of these institutions to the law-abiding, freedom-affirming history of Massachusetts dating back to the Revolution.122 Indeed, Parker traced the tradition all the way back to Lexington Green, where his grandfather and the local militia stood down British regulars, warning “if they want to have a war, let it begin here.”123 Whether or not Captain Parker ever said those words, his grandson claimed them and made them his ultimatum to Curtis and his friends on State Street, who once again wanted to destroy American liberty. Parker died in 1860, before he could witness the war he was certain would come, but he and his comrades in the radical bar—he dedicated his book to John P. Hale and Charles M. Ellis, “Magnanimous Lawyers … in a Noble Profession”—helped prepare the people of Massachusetts for the revolution in law and politics that was to come. This revolution was embodied legally in the radically egalitarian Personal Liberty Law of 1855, which included all the procedural rights the radicals had championed for the previous two decades, which is not surprising since in all likelihood Dana and Sumner drafted the bill.124 The writ of habeas corpus was made available to all persons being held in restraint of their liberty and the writ could be issued not only by the state supreme court but by the court of common pleas, or by any justice of the peace, or any police court of any town or city. The right to a jury trial was guaranteed in all such cases, specifically in cases involving fugitive slaves. The full burden of proof in rendition cases rested with the prosecution and was almost impossibly strict, requiring “at least two credible witnesses, or other legal evidence equivalent thereto.” It did not permit the claimant to testify and prohibited testimony of the alleged fugitive against himself.125 State officials were barred from participating in rendition proceedings, lawyers representing slave owners were barred from appearing before courts in the future, and citizens who served as federal commissioners under the rendition law were prohibited from holding state office. Alleged fugitives were entitled to counsel with fees paid by the state. The law also created a tort cause of action for injuries to alleged fugitives caused by rendition proceedings.126 On top of these procedural guarantees—indeed, reflecting the egalitarian premise of due process—another new law passed at the same time reversed Shaw's decision in the Roberts case by guaranteeing that no child be barred from the public schools of Massachusetts on account of “race, color, or religious opinions.” Actions in tort were made available to any child whose rights under the new law were abridged.127 Sumner and Morris, who argued the Roberts case in 1850, were vindicated at last. So too were the band of lawyers who for two decades had championed equality before the law as a core principle of government. No one articulated that principle more eloquently or more in consonance with the strategy of the radical bar than Sumner who, after stating the moral argument for equality, rested his case squarely on state law, specifically the provision in the Massachusetts Constitution of 1780 that “all men, without distinction of color or race, are equal before the law.”128 Morris integrated the Suffolk bar association, and his appearance as joint counsel with Sumner in Roberts was the first example in America of an integrated bar in action. Morris was a tireless champion of Boston's black community, but he was also the favorite of Boston's working class Irish, and a constant friend to the poor and humble of both races. Ellis G. Loring and Dana were also noted for their willingness to represent those who needed assistance, regardless of class.129 Equality before the law for the radical bar was more than an intellectual concept. Due process with its egalitarian underpinnings was the proposition the radicals took to the people in their arguments before the federal commissioners in the many rescue trials and in the speeches that filled the Lyceum halls and newspapers in the 1850s. In doing so, they rejected the conservative view of Story and Curtis, who insisted that the duty of the bench and bar was to curb the popular will, not liberate it. The radicals did not deny the importance of stable law or the role of learned lawyers and judges, but they denied that the legal elite had a monopoly on law. To them, a just law was more important than doctrinal uniformity and stability and to this end they proposed an alternative vision grounded in procedural due process and equality before the law. VI. A Due Process Moment Following Story’s Prigg opinion in 1842 and Shaw’s supporting decision in the Latimer case the following year, the radical lawyers of Boston confronted a seemingly impregnable legal citadel commanded by the most respected legal thinkers of the age and backed by the dominant social, political, and economic establishment of Massachusetts. In the rendition wars that followed, the radicals won the field because they won the support of the people of Massachusetts. They did so for several reasons. The first is that they out-lawyered their opponents. The radical bar was multi-talented, with gifted jury lawyers like Dana and Hale, and brilliant wordsmiths such as Phillips, Sumner, and Parker. Robert Morris provided leadership and an essential connection to the black community of Boston. Alvord and Rantoul were legal theorists who contributed the structural framework for the radicals' litigation and legislative efforts. The radical lawyers also prevailed because they harnessed the democratic potential of litigation as a way to expose judges and their mistaken views of the law, to bring people into the process of governance, and as a means of nullifying unjust law as a necessary first step to the creation of a more just law. Their arguments in the courtroom and in the press exposed the artificial distinction between law and politics championed by conservatives to justify their monopoly on law-making and interpretation. While some scholars have characterized the radical bar’s tactics and arguments as simply obstructionist or even cynical, we see them as rooted in personal idealism and a deep devotion to the legal principles of due process and equality before the law.130 Acknowledging the innovative lawyering of the radical bar suggests that the traditional narrative should be modified. The story of the rendition wars has generally been presented as a battle between positive law and natural justice, a choice between the law-and-order unionism of Story, Webster, and Curtis, on the one hand, and the Christian perfectionism of Garrison and Phillips, on the other.131 We have endeavored to show that without ignoring the moral issues involved in the debate over rendition, the radical bar proposed a third alternative: a substantive and structural legal argument built on due process and equality and rooted in free local institutions.132 This argument demonstrated to the people of Massachusetts that the law was on their side even when they were rebelling against established law and defying the likes of Story, Shaw, and Curtis to do so. Simply stated, the radicals put a legal foundation under civil disobedience—or “revolution,” as Curtis called the campaign against the rendition law. In the process, the radical lawyers challenged the conservative monopoly on jurisprudential thinking and, as Emerson observed, asserted their right to participate in the intellectual debate about “the foundations of law.” Conservative legal science came from the top down and aimed at stability and social control. Doctrinal formalism and textual finality133 were the instruments used by conservatives to shut down radical dissent. The work of judges in their quarters and scholars in their studies was then directed to other lawyers and judges who were expected to spread the word.134 Whig jurists like Curtis, Shaw, and Story believed it was the duty of the aristocratic bench and bar to check the tide of popular democracy that had already transformed American politics. Boston's radical lawyers now threatened to democratize the judicial system as well. The work of the radical bar was “popular constitutionalism,” to use modern terminology.135 Radical jurisprudence originated in the give-and-take of actual litigation and operated on the premise that law could be changed if justice and community sentiment required it. The truth of law was judged not by its “scientific” correctness but pragmatically by the impact it had on real people. Popular law-making was a cooperative venture between lawyers and clients whose grievances educated the lawyers about what the community needed and wanted. In the civic space provided by the courtroom, lawyers could educate the people as to their legal rights. In turn, the people as represented by the jury could—and in the rendition rescue cases did—validate the lawyers' arguments, giving these arguments political legitimacy. Working in tandem, lawyers and juries armed the people of Massachusetts with arguments ordered around the core principle that due process should be available to all members of society regardless of race or class. These ideals of community justice were embodied in the due process and equal rights legislation of 1855, which was a stunning victory for the radical bar and a fit conclusion of their two decades of dedicated labor. As it turned out, this community-based vision of just law disappeared before it could be fully realized. Although Sumner and Phillips continued the good fight—Sumner in his campaign for the 13th Amendment and Phillips in his battle for racial justice and equal rights for women and labor—the accomplishments of the radical lawyers and their allies were soon forgotten. What the brutal necessities of war did not kill, the post-Reconstruction resurgence of racism did.136 Even so, the radical lawyers left an important mark on their own age and a relevant legacy for our own by exposing the vulnerability of entrenched power to democratic lawyering. The radicals were cause-lawyers before modern scholars coined the phrase, and as pioneering advocates for civil rights, they anticipated twentieth-century organizations such as the National Lawyers Guild and the Legal Defense Fund of the NAACP. Indeed, the story of the radical bar extends the tradition of social-justice lawyering in the United States as far back as 1840. The broad-based campaign of civic education they waged in the courts, the legislature, and the press was unique in the history of the young republic, proving that law, politics, and public opinion are inseparably intertwined. The story we have told illustrates that lawyers need not always be a conservative force, as Tocqueville (following Story) suggested, but can be an engine of social change. Theodore Parker made this point in the dedication of his book when he described the radical lawyers as members of a “noble profession” for “their eloquent and fearless defence (sic) of truth, right, and love.”137 Footnotes 1 Story’s speech of December 21st, 1843, was “directed to the abolitionists” and in it he refers directly to the rendition clause and his opinion in Prigg. The speech is recalled by Rutherford B. Hayes, then a student at the Harvard Law School. See 1 Charles Richard Williams, The Life of Rutherford Birchard Hayes 36–38 (1914). 2 Henry Steele Commager, Theodore Parker 211–12 (1936) (quoting Parker). 3 Albert J. von Frank, The Trials of Anthony Burns: Freedom and Slavery in Emerson’s Boston 325 (1998). 4 U.S. Const. art. IV, § 2, para. 1. 5 For a good description of this understanding, see H. Robert Baker, The Fugitive Slave Clause and the Antebellum Constitution, 30 L. & Hist. Rev. 1133 (2012). 6 Don Fehrenbacher refers to the rendition clause as the “one unambiguously proslavery provision of the Constitution.” Don E. Fehrenbacher, The Slave Holding Republic: An Account of the United States Government’s Relations to Slavery 44 (2001). 7 See Leonard W. Levy, Law of the Commonwealth and Chief Justice Shaw 72–78 (1957) (discussing the episode, including the newspaper coverage). 8 Prigg v. Pennsylvania, 41 U.S. 539 (1842); Commonwealth v. Tracy, 46 Mass. 536 (1843). 9 Robert Cover was among the first to treat the abolition lawyers of Boston as a collective force. See Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 159–62, 175–81, 212–23 (1975) (discussing what Cover called the “ideological bar” in the legal battles of the 1850s). While Cover’s book focused on the moral dilemma of anti-slavery judges, his brief treatment of the ideological bar is keenly insightful. He viewed the Boston anti-slavery lawyers’ use of litigation as “cynical.” Looked at over time and in all of its dimensions (which Cover never attempted to do), we view it as strategic, uniquely innovative, and morally purposeful. Cover's later scholarship sets forth a more nuanced view of law's authority, one that understands the possibilities for constructing rival constitutional narratives, which we argue the radical lawyers both produced in the realm of public discourse and brought to bear in legal and political arenas. See Robert M. Cover, The Supreme Court 1982 Term – Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983). We show how the dominant legal order set out to repress the rival legal order espoused by the radicals and how they fought back. 10 There are exceptions to the tendency to treat these episodes as isolated events. See John D. Gordan III, The Fugitive Slave Rescue Trial of Robert Morris: Benjamin Robbins Curtis on the Road to Dred Scott (2013); Steven Lubet, Fugitive Justice: Runaways, Rescuers, and Slavery on Trial (2010); von Frank, supra note 3. While homing in on one case, H. Robert Baker does an admirable job of contextualizing. See H. Robert Baker, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War (2006). Despite the somewhat different time frame and the differing legal traditions of Massachusetts and Wisconsin, the tactics of Glover’s lawyers resemble those of the Boston radicals in important ways, including the reliance on state rights arguments. 11 See Baker, supra note 10 (operating on this premise); see also Baker, supra note 5, at 1147. In this sense, this paper contributes to scholarship by looking with a broader lens at who makes and shapes law. For a discussion of the relevant scholarship, see Douglas NeJaime, Constitutional Change, Courts, and Social Movements, 111 Mich. L. Rev. 877, 877–80 (2013) (book review). See also William E. Forbath, Law and the Shaping of the American Labor Movement (1991); Joel F. Handler, Social Movements and the Legal System (1978); William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062 (2002); Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution, 94 B.U. L. Rev. 669, 671 (2014); Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373 (2007); Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297 (2001). 12 In this regard, see Paul Finkelman, Legal Ethics and Fugitive Slaves: The Anthony Burns Case, Judge Loring, and Abolitionist Attorneys, 17 Cardozo L. Rev. 1793 (1996). 13 For an argument on the importance of common law rights in the thinking of Whig lawyers in America during the founding period, see 1 John Phillip Reid, Constitutional History of the American Revolution 87-95 (1986). 14 For an account of codification in Massachusetts and Story’s role in it, see R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 272–81 (1985). See also Joseph Story et al., Codification of the Common Law: A Report of the Commissioners Appointed to Consider and Report Upon the Practicability and Expediency of Reducing to a Written and Systematic Code the Common Law of Massachusetts, or Any Part Thereof; Made to His Excellency the Governor, January, 1837, in The Miscellaneous Writings of Joseph Story 698–734 (William W. Story ed., 1852). 15 Commonwealth of Mass. H.R., Report on the Trial by Jury in Questions of Personal Freedom, H.R. 51 (1837). 16 See Thomas D. Morris, Free Men All: Personal Liberty Laws of the North, 1780–1861, at 76–78 (1974); 1 Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America 484–85 (1908). 17 Conn. J., June 30, 1829, at 3. 18 For Justice Curtis’s memorial, which contains a brief account of Alvord’s life and career, see 1 Benjamin Robbins Curtis, A Memoir of Benjamin Robbins Curtis 90–94 (Benjamin R. Curtis ed., Bos., Little, Brown & Co. 1879). The Alvord letters in the Sumner correspondence—housed in Houghton Library, Harvard University—are also enlightening. 19 1 Curtis, supra note 18, at 94–95. 20 See Morris, supra note 16, at 77–79 (discussing briefly Alvord’s legal strategy). 21 “If Judge Story be in the commission, & of course at its head,—the work must be substantially his work, whatever aid other commissioners bring … .” Theophilus Parsons to Charles Sumner (Apr. 1836), in Charles Sumner Correspondence (on file with Houghton Library, Harvard University) [hereinafter referred to as Charles Sumner Correspondence] (emphasis in original). 22 U.S. v Battiste, 24 F. Cas. 1042 (C.C.D. Mass. 1835). The Battiste case involved a capital charge brought against the first mate on a slave ship, and it presented Story with an opportunity to declare, “it is the duty of the jury to follow the law, as it is laid down by the court,” and to describe the danger of jury power to the rule of law. For discussion of the case, see Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine 65–69 (1998). See also Barbara Holden-Smith, Lords of Lash, Loom, and Law: Justice Story, Slavery, and Prigg v. Pennsylvania, 78 Cornell L. Rev. 1086, 1109–11 (1993). 23 Letter from James C. Alvord to Charles Sumner (May 3, 1836) (Charles Sumner Correspondence, Houghton Library, Harvard University). The writ of personal replevin figured in some of the earliest freedom-suit cases. In Margaret v. Muzzy—a 1768 case in the Middlesex Inferior Court—the plaintiff replevined herself and won her freedom. See 2 Legal Papers of John Adams 58 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965). 24 Report, supra note 15, at 14. 25 Id. at 9. 26 Id. at 14. 27 Id. at 7. 28 Id. at 20. 29 Id. at 18. 30 Id. at 32. 31 See Levy, supra note 7, at 73–78 (discussing the Chickasaw escape and Sewall’s caning). 32 An Act Further to Protect Personal Liberty, 1843 Mass. Acts 33. For further discussion of northern personal liberty laws, see Morris, supra note 16, 130-48. 33 Commonwealth v. Tracy, 46 Mass. 536 (1843). 34 Liberator (Bos.), Aug. 17, 1849, at 2. 35 See Paul Finkelman, Sorting Out Prigg v. Pennsylvania, 24 Rutgers L.J. 605, 605–65 (1993). 36 See id. (analyzing the divisions on the Prigg Court); see also Leslie Friedman Goldstein, A “Triumph of Freedom” After All? Prigg v. Pennsylvania Re-examined, 29 L. & Hist. Rev. 763, 763–96, 776–81 (2011). 37 Ironically, the southern lawyer, who ordinarily would have been arguing from a state rights point of view, was arguing the nationalist position that the federal government had exclusive control over rendition proceedings. 38 Prigg v. Pennsylvania, 41 U.S. 539, 616 (1842). 39 See Baker, supra note 5, at 1142 (addressing the local understanding of who decides status questions). 40 Commonwealth v. Tracy, 46 Mass. 536 (1843). 41 Commonwealth v. Aves, 35 Mass. 193 (1836). On the transit cases, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (1981). 42 See Levy, supra note 7, at 78–85. For a contemporary account, see The Latimer Case, 5 L. Rep. 481, 481–98 (1843). 43 In the Latimer case, Sewall and Amos Merrill used Story’s exclusivism doctrine to argue that all the proceedings against Latimer were unconstitutional. See Levy, supra note 7, at 79. 44 See U.S. v. Amistad, 40 U.S. 518 (1841); U.S. v. La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Mass. 1822); Joseph Story, A Charge, Delivered to the Grand Juries of the Circuit Court, at October Term, 1819, in Boston, and at November Term, 1819, in Providence, and Published at Their Unanimous Request (1819). Barbara Holden-Smith contends that Story’s anti-slavery reputation is exaggerated. See Holden-Smith, supra note 22, at 1086–1151. 45 For Sewall’s attack on Shaw, see Levy, supra note 7, at 82. See also Liberator (Bos.), Nov. 4, l842 (quoting the Boston Daily Bee on the conservative outcry). 46 Liberator (Bos.), May 19, 1843, at 2. Phillips (in attacking Shaw) said: “I was educated to, and have practiced at the bar; but I must confess that I was astonished to hear a Judge in Massachusetts say, that this decision of the Supreme Court was binding upon the citizens of that state. With all the Saxon notions of freedom that they had inherited, and with all the American principles of liberty which they had wrought out, that there should be a law forbidding them to rescue a brother from slavery! Yet so it is.” 47 The Latimer Case, supra note 42, at 486. 48 See Newmyer, supra note 14, at 356 (discussing Story’s speech to the students of Harvard Law School). 49 Carl B. Swisher, The Taney Period 1836–64, at 541 (1974). 50 See Prigg v. Pennsylvania, 41 U.S. 539, 632 (1842) (Taney, C.J., concurring); id. at 656 (Daniel, J., concurring). 51 “The states cannot, therefore, be compelled to enforce [the provisions of the fugitive slave clause]; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist, that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted [sic] to them by the constitution.” Prigg, 41 U.S. at 615–16. 52 Liberator (Bos.), Nov. 4, 1842. 53 On how Prigg upended the previous Constitutional “settlement” (as he calls it), see Baker, supra note 5, at 1158–60. 54 Story proposed the creation of federal commissioners in fugitive slave cases to Sen. John M. Berrien of Georgia, Chairman of the Senate Judiciary Committee, and this proposal was ultimately implemented in the Act. See Gordan, supra note 10, at 7–8. 55 Act of September 18, 1850, 9 Stat. 462 § 7 (1850). 56 R.J.M. Blackett, Beating Against the Barriers: Biographical Essays in Nineteenth Century Afro-American History 91 (1986). For a general discussion of black life in Boston, see Stephen Kendrick & Paul Kendrick, Sarah’s Long Walk: The Free Blacks of Boston and How Their Struggle for Equality Changed America 21-95 (2004) (discussing “The Slopes of Beacon Hill”). 57 Morris, supra note 16, at 132. 58 See, e.g., Charleston Courier, Feb. 20, 1851 (reporting on the rescue of Shadrach as “by a mob”); Charleston Courier, Mar. 3, 1851 (reporting on indictments in the rescue cases); Charleston Courier, Oct. 13, 1851 (reporting on the appointment of Judge Curtis in the “Shadrach Rescue Cases”); Charleston Courier, June 21, 1851 (reporting on the hung jury in the case of Hayden); Charleston Courier, Feb. 22, 1851 (reporting on the arrest of Wright and Davis); Daily Picayune (New Orleans), Nov. 16, 1851 (reporting on Morris trial, including the jury questioning by Judge Curtis); Miss. Free Trader, Dec. 10, 1851 (reporting on the verdict in the Morris case and the indictment against Wright); Alexandria Gazette (Alexandria, Va), Nov. 14, 1851 (reporting on the “Shadrach rescue riot” and trial of Robert Morris); Alexandria Gazette (Alexandria, Va.), Nov. 7, 1851 (reporting on the Morris trial, noting that the jurors were questioned regarding the constitutionality of the fugitive slave act, and stating, “No one was empaneled who did not give a satisfactory answer”); Sun (Baltimore), Nov. 6, 1851 (reporting on jury questions in Morris trial); Alexandria Gazette, Nov. 3, 1851 (reporting on Morris trial); Ark. Whig, July 27, 1851 (reporting on the Morris trial and the dismissal of the juror Walker for opposing the fugitive slave law). 59 Liberator (Bos.), Nov. 1, 1850, at 2 60 See Austin Bearse, Reminiscences of Fugitive-Slave Law Days in Boston (Arno Press 1969) (1880) (listing Wendell Phillips, Ellis G. Loring, Robert Morris, Charles Ellis, Richard H. Dana, Lewis Hayden, George Merrill, Theodore Parker, Samuel Sewall, and Lysander Spooner as members of the Vigilance Committee; Charles Ellis, Lewis Hayden, and Wendell Phillips on the executive committee; and Samuel Sewall, Ellis G. Loring, and Robert Morris on the Finance Committee); Liberator (Bos.), June 16, 1854 (listing executive committee of Vigilance Committee: Theodore Parker, Samuel G. Howe, C.K. Whipple, Lewis Hayden, Edmond Jackson, Charles M. Ellis, J. R. Smith, Francis Jackson, Wendell Phillips). 61 Bearse, supra note 60, at 21 (discussing letter from Samuel Sewall dated October 19, 1851, stating that more money was needed to fund the defense in the rescue cases). 62 Id. at 25 (describing legal strategizing by Sumner, Rantoul, C. Loring, and Sewall in the Sims case). 63 2 John Weiss, Life and Correspondence of Theodore Parker 147–48 (1864) (observations of Charles M. Ellis). 64 Id. 65 Roberts v. Boston, 59 Mass. (5 Cush.) 198 (1850). 66 Curtis, supra note 18, at 122 (undated letter to a friend estimated to have been written around 1850). 67 Liberator (Bos.), Oct. 11, 1850, at 2 (“Declaration of Sentiments of the Colored Citizens of Boston on the Fugitive Slave Bill” on the motion of Robert Morris). 68 Liberator Bos.), Nov. 1, 1850, at 2. 69 See 2 The Journal of Richard Henry Dana, Jr. 413 (Robert F. Lucid ed., 1968); Liberator (Bos.), Nov. 1, l850; Blackett, supra note 56, at 91–94. 70 The story of the Crafts is told in Blackett’s book. See Blackett, supra note 56, at ch. 2; see also id. at 91–94 (discussing the legal activities of the Vigilance Committee). 71 Liberator (Bos.), Apr. 11, 1851, at 2 (describing the Sims case: “Mr. Sewall, for defense, asked for delay of examination on account of the inability of counsel to prepare a defense on so short a notice. The defendant declared he was a free man, and counsel believed, if time was allowed, that he could not only be proved a free man under the laws of Massachusetts, but under the laws of Georgia also”). 72 See Bearse, supra note 60, at 25–26; see also Liberator (Bos.), Apr. 11, 1851 (advertisement from the Vigilance Committee: “Friend of Slave, throughout the Commonwealth, to report himself in Boston on Friday morning, the 11th instant, to witness the last sad scene of the state’s disgrace, if it shall be found impossible to avert it. Come By The Thousands!”). 73 See Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850–1860, at 185 (1970). 74 Id. 75 1 Charles Francis Adams, Richard Henry Dana: A Biography 186 (1891) (quoting the Apr. 7, 1851, entry in Dana’s Journal). 76 Liberator (Bos.), Apr. 11, 1851 (reprinting Rantoul’s argument); see also Trial of Thomas Sims, on an Issue of Personal Liberty, on the Claim of James Potter, of Georgia, Against Him, as an Alleged Fugitive from Service: Arguments of Robert Rantoul, Jr. and Charles G. Loring, with the Decision of George T. Curtis (1851) (pamphlet). 77 Theodore Parker, The Trial of Theodore Parker, for the “Misdemeanor” of a Speech in Faneuil Hall Against Kidnapping, Before the Circuit Court of the United States, at Boston, April 3, 1855 (Bos., 1855). 78 Liberator (Bos.), Mar. 7, l851, at 3; Salem Reg., Mar. 3, 1851. 79 Alexandria Gazette (Alexandria, Va.), Mar. 1, 1851 (describing Burton’s suit and stating that he sought 10,000 dollars in damages, but misstating the plaintiff’s name as “Benton”). 80 Dana defended his old friend who, after all, did him as many favors as the rendition law allowed, and a few that it did not. Dana’s argument was that removing Loring from his position was not legitimate because the law, which Loring was alleged to have violated, was being applied retroactively. Liberator (Bos.), Mar. 16, 1855. Conscientious lawyer that he was, Dana was consistent in his commitment to rule-of-law principles. On the removal of Loring from office and his lectureship, see Daniel R. Coquillette & Bruce Kimball, On the Battlefield of Merit: Harvard Law School, the First Century 234–35 (2015). See also Lubet, supra note 10, at ch. 11. 81 Adams, supra note 75, at 264. 82 See Campbell, supra note 73, at ch. 9 (discussing the operation of the fugitive slave law during the war). Campbell notes that when 500 contraband black families were sent to Massachusetts during the war, they were denied admission. Id. at 194. This may have been a calculated political or propaganda statement on the part of the south. As the Boston papers reported: “As a part of the systematic attempt to excite fear of a competition of negro labor in the free States, the Post yesterday gave currency to a report that a proposition had been made by General Dix to send five hundred negro families to this state, implying that Gov. Andrew agreed to this scheme.” Bos.Daily Advertiser, Oct. 30, 1862. On November 3, the Advertiser reported that Andrews did not agree to the proposal, stating that because of the weather, “the Northern States are, of all places, the worst possible to select for an asylum.” Boston Daily Advertiser, Nov. 3, 1862. 83 A Memoir of Robert C. Winthrop 136 (Robert C. Winthrop, Jr. ed., Bos., Little, Brown & Co. 2d ed. 1897). 84 Eric Foner, Gateway to Freedom: The Hidden History of the Underground Railroad 4 (2015). 85 According to their records, the Boston Vigilance Committee alone helped forty-nine fugitives to freedom in 1850, and this is not to count the dozens of others who successfully escaped on their own or with the help of others. Lois E. Horton, Kidnapping and Resistance: Antislavery Direct Action in the 1850s, in Passages to Freedom: The Underground Railroad in History and Memory 166–67 (David W. Blight ed., 2004.). 86 Thanks to the efforts of black and white abolitionists, Burns got his freedom, studied religion at Oberlin, and lived and preached in Canada until his death in 1862 at the age of 28. von Frank, supra note 3, at 305. 87 As Tocqueville observed, “The jury … serves to communicate the … spirit of the judges to the minds of all the citizens, and this spirit, with the habits which attend it, is the soundest preparation for free institutions.” 1 Alexis de Tocqueville, Democracy in America 284 (Phillips Bradley ed., 1976). “The jury only sanctions the decision of the judge … by the authority of society which they represent, and he by that reason and of the law.” Id. at 286. 88 See Gordan, supra note 10, at 32–34 (concerning the indictments). 89 Id. at 280–87. 90 For conservative praise of juries, seede Tocqueville, supra note 87, at 280–87. Tocqueville speaks of the jury “as the most energetic means of making the people rule” and at the same time “the most efficacious means of teaching it how to rule well.” Id. at 28; see also The Unsigned Essays of Supreme Court Justice Joseph Story: Early American Views of Law 165–89 (Valerie L. Horowitz ed., 2015) (Story’s essay on the jury). Story, as the anonymous author of the article in Francis Lieber’s Encyclopedia Americana, refers to the jury as “the bulwark of public liberty, and the best safeguard of private rights under our forms of free government.” 91 William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830, at 9, 21 (1994). 92 Mass. Const. pt. 1, art. XV. 93 For a lucid discussion of the pre-Revolution tradition of jury right, in which the colony of Massachusetts figures prominently, see 1 Reid, supra note 13, at 47-59. Nelson’s Americanization of the Common Law contains a masterful analysis of jury authority in Massachusetts, including the jury’s right to rule on both law and fact. Nelson also discusses conservative efforts to curb jury democracy beginning in the early decades of the nineteenth century. 94 Jenny E. Carroll, The Jury’s Second Coming, 100 Geo. L.J. 657, 675–79 (2012). 95 For example, The Liberator editorialized about a fugitive slave case: “Had this case been investigated before a proper tribunal; had a jury sat upon the case, it is not at all probable that Adam Gibson would have been sent back into slavery.” Liberator (Bos.), Jan. 21, 1851, at 2 (discussing the case of Adam Gibson first reported in the conservative Boston Atlas). The Liberator also reported on a bill introduced in the Massachusetts legislature to apply the 1843 Personal Liberty Law to the 1850 federal Fugitive Slave Act, with special reference to the trial by jury. Liberator (Bos.), Apr. 4, 1851. 96 In his charge to the Grand Jury in the Shadrach rescue cases, Judge Sprague explained the conservative duty of juries—why the jury should indict even if it thought the law unjust. When there is a conflict between the morality of the people and the law, he explained the “arbiter must be society, organized society, pronouncing its decision through its regularly constituted agents. This is the moral judgment, the embodied conscience of the political community.” This charge was reprinted in the newspapers, both in and beyond Massachusetts, and was featured on the front page of The Liberator. As if to illustrate the federal-state clash in real time, that same week the Massachusetts Senate called before it the U.S. Marshal Tukey, the Mayor of Boston, and Commissioner George T. Curtis to testify regarding their conduct in the Sims case. 97 Richard Henry Dana Legal Papers, Folder 1068, U.S. v. Morris (on file with American Antiquarian Society, Worcester, Mass.); see also Liberator (Bos.), May 30, 1852 & June 13, 1852 (reporting that in the Scott and Hayden trials the prosecution wanted to ask the jury questions about whether they would follow the law, and Hale opposed on grounds that it would “insult” and “pack the jury”—the judge permitted the questions). 98 Commonwealth (Bos.), July 11, 1851. 99 Gordan, supra note 10, at xviii. Dana’s argument about the government’s illegal attempt to control the jury pool was quoted in the Boston Traveller and reported in the Albany Evening Journal. The coverage followed sectional lines, with the Southern papers like the Alexandria Gazette reporting approvingly that “no one was empaneled who did not give a satisfactory answer.” Alexandria Gazette (Alexandria, Va.), Nov. 7, 1851. The Pennsylvania Freeman, by contrast, noted that the trial was unfair from the start: “When it is considered that such questions were put to each juryman before entering the box, it is hardly possible that any of them could be otherwise than prejudiced against the accused.” Pa. Freeman (Phila.), Nov. 20, 1851. The paper quipped: “The only men whom Massachusetts has thus far tried and condemned of their course in the respect of the Fugitive Slave Law are Daniel Webster and his confederates. In their case the people have recorded a verdict from which there is no hope of appeal.” Id. 100 For a description of Dana as a trial lawyer, see 2 Adams, supra note 75, at 133. The Dana legal papers also reveal a careful and rigorous lawyerly mind. 101 For Webster’s low opinion of Lunt and Lunt’s performance in the rescue trials, see Gary L. Collison, Shadrach Minkins: From Fugitive Slave to Citizen 192–95 (1998). 102 Nat’l Intelligencer (D.C.), Dec. 19, 1851, at 1. 103 For the best scholarly analysis of Curtis’s position on this point, see Gordan, supra note 10, at 62–70. See also Nelson, supra note 91, at 21 (establishing beyond doubt that the early Massachusetts juries “had vast power to find both law and facts”). It was this law-finding function of the jury that explains John Adams’s assumption that the trial jury was an instrument of democratic governance. See 1 Reid, supra note 13, at 50–51. 104 Commonwealth (Bos.), Nov. 14, 1851, at 1. 105 Id. 106 U.S. v. Morris, 26 F. Cas. 1323, 1332 (C.C.D. Mass. 1851). 107 William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education 34–39 (1994), 34–39. 108 Morris, 26 F. Cas. at 1332. 109 Commonwealth v. Porter, 51 Mass. 263, 287 (1845). 110 For Curtis’s view that radical opposition to the Fugitive Slave Act of l850 was a revolutionary act, and for his backhanded praise of Phillips for admitting as much, see Curtis, supra note 18, at 122 (an undated letter to a friend). 111 Jeanine Marie DeLombard, Slavery on Trial: Law, Abolitionism, and Print Culture 7–12 (2007). 112 Commonwealth (Bos.), Nov. 14, 1851, at 1. 113 2 Collected Works of Lysander Spooner 4 (Charles Shively ed., 1971). A book review of Spooner’s The Trial by Jury was published in the The Liberator. See Liberator (Bos.), Dec. 17, 1852. 114 For Hale’s Lyceum appearance, see Richard H. Sewall, John P. Hale and the Politics of Abolition 153 (1965). Even today, Spooner’s scholarship is praised. See Conrad, supra note 22, at 75–88. 115 Robert Rantoul, Jr., Memoirs, Speeches and Writings of Robert Rantoul, Jr. 734, 748–49 (1854). 116 Commonwealth (Bos.), July 25, 1851. 117 See Lawrence B. Goodheart, Abolitionist, Actuary, Atheist: Elizur Wright and the Reform Impulse 135–36 (1990) (noting that Wright published his statement to the jury in The Commonwealth on Dec. 13, 1851, before his trial). 118 Liberator (Bos.), May 24, 1850, at 2. The article describes speech suppression of abolitionists and argues that “[i]t was not an offence against the abolitionists that the mob committed when they broke up Garrison’s meeting, but an offense against the Constitution, against the Union, against the people, against popular rights and against the great cause of human freedom.” 119 Parker, supra note 77. 120 For a discussion of Shaw’s opinion, see Levy, supra note 7, at 64–68. For Parker’s account of Benjamin Robbins Curtis and his uncle in the Slave Med case, see Parker, supra note 77, at 156–62. 121 Levy, supra note 7, at 65. Parker’s bitter critique of Justice Curtis and his family appears at various places throughout the book. For example, he wrote: “When Mr. Webster prostituted himself to the Slave Power this family went out and pimped for him in the streets … .” Parker, supra note 77, at 218. 122 On the jury at this time, see Parker, supra note 77, at 76–81; on the jury’s right to decide law as well as facts, including Justice Curtis’s view, see id. at 89–95. 123 Id. at 220. 124 Dana and Sumner joined in drafting the legislative response to the Fugitive Slave Act of l850. See 2 The Journal of Richard Henry Dana, Jr., supra note 69, at 416 (recounting that: “The last week, Sumner & I have been drawing up laws to meet the dangers & outrages of the Fugitive Slave Bill, at the request of the Legislature.”). It seems very likely they were similarly involved in drafting the 1855 law. 125 An Act to Protect the Rights and Liberties of the People of the Commonwealth of Massachusetts, 1855 Mass. Acts 924. 126 For a contemporary view of just how radical the 1855 legislation seemed to conservatives, see Joel Parker, Personal Liberty Laws (Statutes of Massachusetts) and Slavery in the Territories (Case of Dred Scott) 40 (1861). 127 An Act in Amendment of “An Act Concerning Public Schools,” Passed March Twenty-fifth, Eighteen Hundred and Forty-five, 1855 Mass. Acts 674. It is very probable that Sumner had a hand in drafting this statute, but whether he did, it tracked closely his argument in the 1850 Roberts case. 128 2 Charles Sumner, The Works of Charles Sumner 327–76 (1870); id. at 330 (quoting the Massachusetts Constitution of 1780) (emphasis in original). In the Burns rendition case, Dana argued that the law required “strict adherence to the rule that this man is free until he is proved a slave … after rigid compliance with every form of law which statute, usage, precedent has thrown about the accused as protection.” Seevon Frank, supra note 3, at 179. 129 For Morris’s place of honor in the Suffolk County Bar, see In Memoriam: Robert Morris, Sr. (1883). Ellis G. Loring is praised for his democratic lawyering. Id. at 21. Dana also had a reputation for representing common seamen in their struggles with ship owners. See Richard Henry Dana, Jr., The Seaman’s Friend (Bos., Thomas Groom &Co., 6th ed., rev. & corrected 1851) (discussing Dana’s work in this regard); see also Adams, supra note 75, at 27 (discussing the democratic nature of Dana’s early practice when his office was crowded with “unkempt, roughly dressed seamen,” and smelled “much like a forecastle”). 130 Cover, for example, states “the suspicion, well founded in some instances, was always present that the attorneys … cynically use the courtroom for delay, obstruction, or publicity regardless of the legal merits.” Cover, supra note 9, at 212. 131 See, e.g., id. at 192 (describing the power of positive approaches to law among the radical bar, utopians, and judges); Lubet, supra note 10, at 8 (describing the radical lawyers as focused on technicalities); von Frank, supra note 3, at 180 (describing Dana’s argument in the Burns case as based on “rhetorical address to conscience”). 132 This legal approach is consistent with a tradition in Massachusetts, running back to the revolution, of prioritizing constitutional and common law arguments over natural law arguments. See 1 Reid, supra note 13, at 87-95 (especially the sub-section “The Irrelevancy of Natural Rights”). 133 “The Constitution is to have a fixed, uniform, permanent construction … the same yesterday, today, and forever.” 1 Joseph Story, Commentaries on the Constitution of the United States § 426 (Bos., Hilliard, Gray & Co. 1833). 134 Cover, supra note 9, at 192–93. 135 See, e.g., Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Mark V. Tushnet, Popular Constitutionalism as Political Law, 81 Chi.-Kent L. Rev. 991, 994 (2006). 136 See Gordon S. Barker, The Imperfect Revolution: Anthony Burns and the Landscape of Race in Antebellum America (2010) (looking at the complex social landscape of Massachusetts in the 1850s, focusing on Burns, and offering sobering evidence of racism in Boston). There is evidence that preserving the Union was the primary motivator for Northerners in the Civil War. See Gary W. Gallagher, The Union War (2011). 137 See Parker, supra note 77 (the dedication). © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Published: May 2, 2018

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