(This is part three in a series of posts on the Boston Marathon bombings, the government response, and Boston unique historical perspective on militarism and civil liberties. See the introduction here, and part two here.)
The second historically significant incident involving Boston and a government-ordered lockdown came during the fugitive slave hearing of Anthony Burns in 1854. The hearing was the product of the Fugitive Slave Act, an odious law passed as part of the Compromise of 1850, a package of bills negotiated between northern and southern interests in Congress aimed at staving off a civil war.
Congress had already passed a law called the Fugitive Slave Act in 1793 as the means to enforce Article IV, Section 2 of the U.S. Constitution, which prohibited citizens from aiding the escape of slaves and mandated their return to their masters. But as slavery fell out of favor in the north, free states found ways around the law, and many cities and towns became places of refuge for freed slaves. A few northern state legislatures, for example, passed laws making it easier for escaped slaves to win their freedom. This included granting them jury trials, where northern juries often engaged in the doctrine of jury nullification, by refusing to convict either escaped slaves or the citizens who aided them. Other states passed statutes making it illegal for state employees to help enforce the federal law, a practice the U.S. Supreme Court ruled constitutional in 1843.
The Fugitive Slave Act of 1850 sought to plug these holes in the original. Under the new law, any black person in a free state could be claimed as an escaped slave on little more than the word of a southerner who'd could say he'd come to claim him. The accused would then be arrested and given a hearing in front of a specially appointed commissioner. Anyone aiding a slave's escape, including offering food or water, was guilty of a federal felony, punishable by a $1,000 fine and six months in prison. The law called for federal marshals to be paid bonuses for capturing escaped slaves, and fined them $1,000 if they refused to arrest any black person a white person claimed as a slave. The commissioners themselves were paid $10 if they ruled in favor of the slave owner, but only $5 if they ruled in favor of the accused.
In the next decade, defenders of the Confederacy would embrace a perverted notion of federalism to defend slavery, but in the 1850s the strongest challenges to federal supremacy came from northern states challenging the Fugitive Slave Act, either by passively refusing to enforce it, or directly acting to nullify it.
The two American presidents of the era -- Millard Fillmore and Franklin pierce--struggled to determine at what point such conscientious objections crossed over into insurrection, which would then permit them to send in troops to enforce federal law.
Just months after the act became law, for example, Vermont passed legislation requiring state officials to assist escaped slaves. That of course compelled Vermont authorities to resist the federal authorities charged with capturing those same slaves. The law was an open act of nullification. Fillmore threatened to send the U.S. Army into Vermont in response, but ultimately decided against it.
Before Burns' hearing in 1854, there had been other rebellions against the Fugitive Slave Act in Boston. In fact, Boston had acquired a reputation as a sanctuary for escaped slaves. Several years earlier William and Ellen Craft, a married slave couple, had escaped to Boston from a plantation in Macon, Georgia, with the help of the Boston Committee of Vigilance and Safety, an abolitionist group. The couple was then able to flee to England before a team of federal and southern slave catchers could apprehend them. Once safely in Britain, the two became minor celebrities. They wrote articles and gave speeches denouncing and ridiculing the U.S. and the south for still defending the practice of slavery.
The Vigilance Committee also staged a daring rescue of Shadrach Minkins, an escaped slave from Norfolk who had been captured in Boston by federal marshals. Abolitionists stormed the courtroom during Minkins' hearing, overpowered the federal guards, spirited Minkins away to Beacon Hill, and then eventually moved him to Canada. President Filmore ordered the prosecution of the nine abolitionists who aided the rescue. Those prosecutions were led by then-Secretary of State Daniel Webster, who had previously represented Boston in the U.S. House of Representatives, and Massachusetts in the U.S. Senate. Webster had also made a famous speech in support of the Fugitive Slave Act and the larger Compromise of 1850 on the floor of the Senate, and his political reputation was staked to its success. He was embarrassed by how difficult it had become to enforce the law he championed in his own state. The embarrassment must have only compounded for him when every abolitionist he put on trial for conspiring to free Minkins was acquitted.
Fillmore initially responded with a public condemnation of Minkins' rescue, which Webster co-signed. But Webster wanted more. He wanted the rescuers tried for treason, and had urged Fillmore to send federal troops into Boston to reinforce the slave catchers and provide security during deportations. After meeting with his cabinet, Filmore ultimately decided federal marshals had the power to summon military troops to help them catch escaped slaves, but that they should first get authorization from a district court judge.
During the 1851 fugitive slave hearing of Thomas Sims, the abolitionists again threatened a rescue. Secretary of War C.M. Conrad told the commander of U.S. troops in Boston Harbor not only to be ready for such an authorization, but to be willing to send troops to Boston on the request of a single U.S. Marshal alone if a judge wasn't available. Ultimately, the abolitionists failed in their attempt at a rescue, and Sims was found guilty and sent back to Georgia. Fillmore wrote Webster to congratulate him on his native city's successful deportation of Sims back into slavery without need for the aid of soldiers.
But the slave hearing of Anthony Burns went down very differently. Burns, 19, had escaped to Boston from his master's estate in Richmond, Virginia. He was working for a clothier when he was apprehended by slave catcher. On the morning of his hearing, the Vigilance Committee used a battering ram to force their way into the courthouse, then stormed the building with pickaxes, clubs, and revolvers. A federal marshal was killed in the fracas. The rescue was unsuccessful, and the rescuers were arrested, although none of them were ever convicted of a crime.
By the time of Burns' hearing, Bostonians had come to hate the Fugitive Slave Act, a sentiment increasingly common across much of the north, particularly after the more slavery-friendly Franklin Pierce was elected president in 1852. When Burns' hearing resumed the day after the abolitionists had stormed the courthouse, thousands of Bostonians turned out in protest. Alarmed by the the actions of the abolitionists and the apparently broad support they had in his city, Boston Mayor J.V.C. Smith called up two companies of the Massachusetts militia to guard the courthouse. Finding those forces inadequate, he then called President Pierce directly, and requested that two U.S. Army battalions and a group of Marines be sent to the city.
Though from New Hampshire, Pierce sympathized with the slave states (he would later pledge support for the Confederacy during the Civil War), and campaigned on more stringent enforcement of the Fugitive Slave Act. So when Smith asked for troops, Pierce was happy to oblige. He also put hundreds more troops on standby to descend on Boston if needed.
By the end of the week, the Burns hearing still hadn't concluded. Because he'd be kept in a jail over the weekend, the federal troops would remain in the city. Finally, at 9am on June 2, Slave Commissioner Edward G. Loring ordered Anthony Burns back to his shackles in Virginia. An estimated 50,000 Bostonians took to the streets and to rooftops to protest. They flew American flags upside down, and screamed “Kidnappers!” at the police and soldiers. One group hoisted a coffin with a banner that read, “The Funeral of Liberty.” The city was angry, not just at the law itself, but at the amount of force their own state officials had brought to bear to enforce it. Once Loring issued his decision, Boston went into lockdown. The historian Robert C. Coakley sets the scene.
At 0800 the 1st Brigade of the Massachusetts Militia began assembling on Boston Common; troops involved included two cavalry companies of hte 1st Battalion of Light Dragoons, eight companies of the 5th Regiment of Artillery, eight companies of the 5th Regiment of Light Infantry, and three companies of the 3d Battalion of Light Infantry, plus the Independent Company of Cadets--a total of twenty-two companies and about 1,000 men. At 0730 the three companies of regulars (Army and Marine Corps) took their position on the courthouse square. Following the 0900 decision to render Burns, he remained under heavy guard in the courthouse while preparations were made to escort him to the harbor. At 0930 when Loring's decision was made known to the crowd outside, the Boston police cleared the square and posted a force at each of the avenues leading into it. At 1000 a detachment of regular artillery went through “dry run” practice of loading and firing the cannon in the square. At about the same time, Mayor Smith issued a proclamation that was posted throughout the city, declaring that General [Thomas F.] Edmands and the chief of police had full discretionary power to uphold the laws and woul station their troops for this purpose. In effect the directive put the city under martial law. Its legality was later seriously questioned.
It took hours for the soldiers to clear the streets. On a number of occasions, the troops nearly opened fire on the crowd. In one instance, some troops mistook a crowd surge for an assault and charged Bostonians with bayonets. There were scores of serious injuries, but somewhat miraculously, there were no fatalities.
Once the streets were cleared, troops marched Anthony Burns from the courthouse to a ship waiting for him at the docks. It hadn't yet been a century since English troops fired on protesting Bostonians, an act that moved the country toward revolution. On the morning of June 2, 1854, American soldiers lined Boston's streets, fired shots from a cannon positioned in the town square as a warning to their fellow Americans, and threatened further military force in an effort to intimidate citizens who were angry that their government was about to force another human being back into slavery.
A month later, in a speech to an anti-slavery group he gave on the Fourth of July, Henry David Thoreau reflected on the scene in Boston.
The whole military force of the State is at the service of a Mr. Suttle, a slaveholder from Virginia, to enable him to catch a man whom he calls his property; but not a soldier is offered to save a citizen of Massachusetts from being kidnapped! Is this what all these soldiers, all this training, have been for these seventy-nine years past? Have they been trained merely to rob Mexico and carry back fugitive slaves to their masters?
These very nights I heard the sound of a drum in our streets. There were men training still; and for what? I could with an effort pardon the cockerels of Concord for crowing still, for they, perchance, had not been beaten that morning; but I could not excuse this rub-a-dub of the "trainers." The slave was carried back by exactly such as these; i.e., by the soldier, of whom the best you can say in this connection is that he is a fool made conspicuous by a painted coat.
Three years ago, also, just a week after the authorities of Boston assembled to carry back a perfectly innocent man, and one whom they knew to be innocent, into slavery, the inhabitants of Concord caused the bells to be rung and the cannons to be fired, to celebrate their liberty -- and the courage and love of liberty of their ancestors who fought at the bridge. As if those three millions had fought for the right to be free themselves, but to hold in slavery three million others . . . So some of my townsmen took the liberty to ring and fire. That was the extent of their freedom; and when the sound of the bells died away, their liberty died away also; when the powder was all expended, their liberty went off with the smoke.
In response to what the Pierce administration saw as open rebellion in Boston, Attorney General Caleb Cushing issued what became known as the Cushing Doctrine. The new policy, which was far more revolutionary than the subtle way it was enacted may have suggested, allowed any U.S. Marshall in the country to enlist the aid of federal troops to help enforce federal law. The policy was unquestionably a response to the Burns hearing, and was intended to enlist federal soldiers in the practice of rounding up blacks in the north who had been accused of escaping slavery.
Ironically, in ten years the policy would be used primarily to help federal prosecutors and U.S. Marshals enforce Reconstruction in the former Confederate states. The Cushing Doctrine was finally repealed in 1878 by an amendment to an Army appropriations bill sponsored by Kentucky Rep. J. Proctor Knott. The amendment read:
From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress.
Knott's amendment was an explicit repeal of Cushing's directive. It prohibited any use of the U.S. military for domestic law enforcement purposes unless first authorized by the president or a preempted by a law passed by Congress. It became known as the Posse Comitatus Act, and it's still in effect today. The law is often misunderstood to prohibit any use of military troops for domestic law enforcement. This is incorrect. It only requires authorization from the president (under a number of other laws that lay out the criteria for such deployments) or the passage of a subsequent law. Since then, Congress has passed a number of laws authorizing military involvement in domestic law enforcement, particularly with respect to the drug war.
But more significantly, the term Posse Comitatus has come to symbolize the American principle of keeping the military separate and distinct from law enforcement. It's a term often invoked when U.S. troops or National Guardsmen are deployed during riots or after natural disasters, or to criticize the use of military tactics, weapons, and rhetoric by domestic police agencies. Consquently, the term Posse Comitatus has been invoked fairly frequently in these last two weeks since the massive show of government force in response to the marathon bombings. It's a term that carries some unique historical significance to Boston.
Tomorrow: The drug war occupation of Boston.
Radley Balko is author of the forthcoming book Rise of the Warrior Cop: The Militarization of America's Police Forces.
Sources: Jacqueline Jones, Saving Savannah, The City and the Civil War, Random House (2008); Stanley W. Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860, University of North Carolina Press, (1970); Gary L. Collison, Shadrach Minkins: From Fugitive Slave to Citizen, Harvard University Press (1998); Charles Emery Stevens, Anthony Burns: A History, John P. Jewett and Company (1856); Albert J. Von Frank, The Trial of Anthony Burns: Freedom and Slavery in Emerson's Boston, Harvard University Press (1998); Chuck Leddy, “Boston Combusts: The Fugitive Slave Case of Anthony Burns,” Civil War Times, May 2007; Stephen Puleo, A City So Grand: The Rise of an American Metropolis: Boston 1850-1900, Beacon Press (20120); Henry David Thoreau, “Slavery in Massachusetts,” speech delivered in Framingham, Massachusetts on July 4, 1854; Clayton Laurie and Ronald Cole, The Role of Federal Military Forces in Domestic Disputes, 1877-1945, Center for Military History, United States Army (1997).