The Antislavery Judge Reconsidered

29 Law & History Review 797 (2011)

38 Pages Posted: 14 Nov 2010 Last revised: 31 Aug 2017

See all articles by Jeffrey M. Schmitt

Jeffrey M. Schmitt

University of Dayton - School of Law

Date Written: November 13, 2010


According to the conventional view, prominent antislavery judges who upheld proslavery legislation were forced to sacrifice their moral convictions in order to remain faithful to their judicial role. The conventional assumption that legal considerations required prominent antislavery judges to uphold proslavery legislation, however, should be reconsidered. Focusing on the Fugitive Slave Act of 1850, this Article argues that antislavery judges had ample discretion to rule against proslavery law using accepted legal principles. The most prominent antislavery judges to rule on the Fugitive Slave Act, however, had no desire to rule against it. During the turbulent 1850s, these judges feared that a ruling against the Act would disrupt a fragile political compromise that had only recently averted a possible sectional conflict. Rather than limit their discretion, the judicial role thus forced antislavery judges to balance their legal obligations, moral opposition to slavery, and commitment to sectional peace within the Union. The way in which antislavery judges responded to these competing influences becomes apparent when the judges’ fugitive slave decisions are viewed in light of their other slavery jurisprudence. While prominent antislavery judges were willing to adopt moderate antislavery positions that, though controversial, were not perceived to threaten sectional stability, they were not were not inclined to accept those legal arguments that they believed could threaten the Union.

Keywords: Fugitive Slave Act, Slavery and Law, John McLean, Lemuel Shaw, Prigg v. Pennsylvania, Miller v. McQuerry, Norris v. Newton, Sims’ Case

Suggested Citation

Schmitt, Jeffrey M., The Antislavery Judge Reconsidered (November 13, 2010). 29 Law & History Review 797 (2011) , Available at SSRN:

Jeffrey M. Schmitt (Contact Author)

University of Dayton - School of Law ( email )

300 College Park
Dayton, OH 45469
United States

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