Peter Karsten is a professor of history at the University of Pittsburgh, with joint appointments in the sociology department and the Graduate School of Public and International Affairs. He is the author of the prizewinning The Naval Aristocracy: The Golden Age of Annapolis and the Emergence of Modern American Navalism (1972); Law, Soldiers, and Combat (1978); Heart versus Head: Judge-Made Law in Nineteenth-Century America (1997); the prizewinning Between Law and Custom: "High" and "Low" Legal Cultures in the Lands of the British Diaspora, 1600–1900 (2003); and The Magic Mirror: Law in American History (2nd edition, 2009), among other books. He is also editor-in-chief of the prizewinning Encyclopedia of War and American Society (3 volumes, 2005). He has held visiting chairs at University College Dublin, Augsburg Universitat, and The Citadel.
Several legal scholars have criticized five antebellum justices – Joseph Story, John McLean, Benjamin Curtis, Lemuel Shaw, and Joseph Swan –for their having been unable or unwilling to defy the Fugitive Slave Acts. They have argued that a morally “correct” path could and should have been hewn out and followed by these justices to release those claimed by slave-catchers, and to protect from prosecution those aiding fugitives. I disagree with their verdicts with regard to three of these jurists, and partly with the fourth, in that the critics offer insufficient regard for their perspectives from the bench as well as relevant historical evidence that supports the justifications provided by them: Firstly, in that they had sworn to respect and uphold the rule of law. And secondly, in that they maintained that refusing to enforce these fugitive slave statutes could well lead to the dissolution of a Union these jurists regarded as profoundly important, for reasons, again, that their modern critics have insufficiently appreciated or understood.