One of the biggest criticisms of nullification is that it was asserted for the purpose of perpetuating slavery.
This is a complete misrepresentation of history. The record is absolutely clear on this issue. Frustration of the federal Fugitive Slave Act was accomplished by nullification efforts all over the North, and because of the success of those efforts, slaves were encouraged to seek their freedom.
Although the concepts of states’ rights and nullification are historically associated with the South, they were employed by northern states to resist the Fugitive Slave Act of 1850. While the southern states defied the federal government by refusing to accept the abominable tariffs, the northern states defied the government by refusing to enforce the Fugitive Slave Act, which they believed was an unconstitutional commandeering of the state and at its core, a repugnant law that offended their conscience. Under this law, stringent measures were imposed to catch runaway slaves. These included:
- Penalizing federal officials that did not enforce the law
- Rewarding federal officials that did enforce law
- Requiring free citizens to help capture runaway slaves
- Fining or imprisoning citizens helping runaways escape
- Prohibiting runaways from testifying on their own behalf in court
- Denying jury trials to runaways
Special federal commissions, not courts, worked with U.S. marshals to handle runaway cases. Commissioners and marshals who failed to hold captured runaways could be sued, thus compelling them to enforce the law. They received $10 for every runaway delivered to a claimant, but only $5 for cases in which the runaway was freed. This provided a financial incentive to send even free black men and women into slavery. The law not only jeopardized the liberty of every black citizen, but it also infringed on the freedom of white citizens by forcing them to hunt for runaways against their will.
State and local governments openly defied the law:
>1). The most northern legislatures passed “personal liberty laws,” making it nearly impossible to enforce the Fugitive Slave Act in those states.
2). The Wisconsin Supreme Court declared that the Tenth Amendment protected states from repugnant federal laws like the Fugitive Slave Act, specifically citing the Virginia and Kentucky Resolutions of 1798 as the basis for its opinion.
3). The Chicago City Council called northern congressmen who supported the act “traitors” like “Benedict Arnold and Judas Iscariot.”
4). When the U.S. Supreme Court ruled that states could not free federal prisoners convicted of helping runaways, the Wisconsin legislature called “this assumption of jurisdiction by the federal judiciary… an act of undelegated power, void, and of no force…” (The Wisconsin Supreme Court nullified the Supreme Court’s decision. See discussion below)
Along with state and local governments, the people themselves took matters into their own hands
1). In Syracuse, New York, in 1851 a jury effectively nullified the law by acquitting all but one of 26 people who had been arrested for freeing William “Jerry” Henry. Among those 26 persons arrested and tried was a US Senator and the former Governor of NY. Jerry ultimately escaped to Canada.
2). When Joshua Glover was captured by U.S. marshals in Milwaukee, Wisconsin, the sheriff supported local opinion by freeing Glover and jailing the marshals; Glover ultimately escaped to Canada.
3). In Pennsylvania, a mob of free blacks killed a slaveholder attempting to capture a runaway.
4). Military force was needed to disperse a mass meeting after a black man was apprehended in Detroit.
5). Throughout Ohio, town meetings branded any northern official who helped enforce the law “an enemy of the human race.”
6). Other cities and states refused to help enforce the law simply because it was too expensive. Returning one runaway to the South cost the city of Boston $5,000. Boston officials never enforced the law again. All of these acts of defiance and nullification were ironically adopted from principles first introduced and later invoked by southerners.
When Wisconsin residents refused to enforce the Fugitive Slave Law and return escaped slave, Glover, an ensuing series of arrests would give the state Supreme Court the opportunity to use nullification to proclaim the law’s unconstitutionality. The case would be known as In re Booth.
What became known as the Booth case was actually a series of decisions from the Wisconsin Supreme Court beginning in 1854, and one from the U.S. Supreme Court, Ableman v. Booth, 62 U.S. 514 (1859), leading to a final published decision by the Wisconsin Supreme Court in Ableman v. Booth, 11 Wis. 501 (1859). These decisions reflect Wisconsin’s attempted nullification of the federal fugitive slave law, the expansion of the state’s rights movement and Wisconsin’s defiance of federal judicial authority. The Wisconsin Supreme Court in Booth unanimously declared the Fugitive Slave Act of 1850 unconstitutional. The U.S. Supreme Court overturned that decision but the Wisconsin Supreme Court refused to file the U.S. Court’s mandate upholding the fugitive slave law. That mandate has never been filed.
When the U.S. Constitution was drafted, slavery existed in this country. Article IV, Section 2 provided that: “No person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”
Based on this provision, Congress passed a law in 1793 that gave slave owners the power to have a runaway slave arrested in any state and returned. The law remained intact until 1850, by which time the moral sentiment of the North against slavery had become aroused; the Liberty Party had been organized, the underground railroad had flourished and many northern men and women refused to act as slave catchers or assist in perpetuating slavery. Because of the increasing difficulty the slave holders faced in reclaiming runaway slaves, Congress passed the Fugitive Slave Act of 1850. The law placed the mechanism for capturing runaway slaves in the hands of federal officers. It provided that these cases would be heard by a federal judge or court commissioner and allowed the slave owner to prove the debt owed by the slave but precluded testimony from the fugitive entirely. The new law also increased the penalties for resistance and for concealment of fugitives.
Although it was intended as a compromise, the new law actually fueled the flames of anti-slavery sentiment and from 1854 to 1861, Wisconsin politics was dominated by the question of whether the state had to defer to the federal government’s efforts to enforce the Fugitive Slave Act.
In the spring of 1852, a slave named Joshua Glover escaped from a Missouri farm near St. Louis and made his way to Racine, Wisconsin, where he found work at a sawmill. Two years later, his owner tracked him down and had him apprehended by federal marshals under the Fugitive Slave Act. Glover was held in the Milwaukee County Jail pending a hearing. When Sherman M. Booth, editor of the Milwaukee abolitionist newspaper, The Free Democrat, heard of the capture, he is said to have mounted his horse and galloped through the streets of Milwaukee shouting: “Freemen! To the rescue! Slave catchers are in our midst! Be at the courthouse at 2:00!” Booth’s lawyers then persuaded a Milwaukee County Court judge to issue a writ of habeas corpus (a judicial order freeing Booth) directing the U.S. marshal to bring Glover before the county judge and justify his detention
Before the hearing could take place, Booth appointed a committee to prevent the “kidnapping” of Glover by the federal authorities. After Booth made a fiery speech, a mob led by one of the other committeemen, John Ryecraft, battered down the jail doors, freed Glover and spirited him away to Canada. Federal authorities charged Booth with assisting Glover’s escape. Booth was released on bail but two months later, at his own request, he was delivered to the U.S. Marshal. Booth’s surrender was calculated to bring a test case in the state courts challenging the constitutionality of the fugitive slave law. On the day after the surrender, Booth’s attorney, Byron Paine (later a justice of the Wisconsin Supreme Court), successfully applied to Wisconsin Supreme Court Justice Abram D. Smith for a writ of habeas corpus. At that hearing, Smith asked the parties to address the constitutionality of the fugitive slave law. Paine, citing Thomas Jefferson’s writings, said states have the right to impose their authority when their sovereign rights are violated by the federal government. Paine argued that Congress had no authority to make laws based on the fugitive slave clause of the Constitution and that the Act of 1850 was unconstitutional because it denied a trial by jury and vested judicial powers in court commissioners. On June 7, 1854, Smith ordered that Booth be released, finding the warrant of commitment defective and the fugitive slave law unconstitutional.
When the US Attorney General learned of the decision, he appealed it to the US Supreme Court. The case – Ableman v. Booth – was heard in 1859, just one year before slavery would a major issue of the presidential election. In that case, the Supreme Court upheld the constitutionality of the Law and further held that Wisconsin did not have the power to nullify the Fugitive Slave Act. In a decision written by Justice Roger Taney (who also wrote the infamous Dred Scott decision): “No power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws.” [pg. 62]
The justices of the Wisconsin Supreme Court justices were then instructed to file the U.S. Supreme Court’s mandates reversing the judgments and dismissals in the Booth case. Although there had been some changes to the bench in the years since the case was heard, the majority opinion was that the federal court had no power to review the judgments of the state Supreme Court and Wisconsin was well within its right to nullify the Fugitive Slave Law, and so the justices voted not to file the mandates in the Booth cases. The Wisconsin Supreme Court would write: “The Supreme Court said that the States cannot, therefore, be compelled to enforce the Fugitive Slave Act. We regard the action of the Supreme Court of the US, in assuming jurisdiction in the case before mentioned, as an arbitrary act of power, unauthorized by the Constitution. This assumption of jurisdiction by the federal judiciary is an act of undelegated power, and therefore without authority, void, and of no force.”
[Booth was subsequently arrested by federal agents and placed in a state penitentiary. Since Wisconsin did not assert its duty to interpose and prevent federal agents from such conduct, Booth remained in custody. But only a few short months later, on the eve of Lincoln’s inauguration, President Buchanan would pardon him].
Wisconsin successfully nullified the Fugitive Slave Law in its state. It did not back down. It did not reverse the judgment on Booth, as the US Supreme Court instructed. Although the Civil War would start in less than two years and the affections that bound North and South together would be strained, the state of Wisconsin maintained its position on the constitutionality of the Fugitive Slave Law and held to its conviction that it was unenforceable in its borders.
Contrary to the critics’ position that nullification was used to promote and support slavery, the only real time we saw it used with regard to slavery is in an effort to discourage enforcement of laws to return slaves that have successfully escaped and to therefore encourage their escape to the north.
The critics of nullification go even further and try to discredit the doctrine by blaming it for events like Arkansas’ refusal to integrate their schools following the Brown v. Board of Education decision in 1953, which demanded that school segregation be ended immediately. Martin Luther King Jr. himself vilified Nullification in his “I Have a Dream” speech in Washington DC in 1963. He said: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by their character. I have a dream today. I have a dream that one day down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; that one day right down in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.”
To condemn nullification for one bad application would require that we also condemn the Supreme Court because of its Dred Scott decision. Besides, there are many constitutional scholars who don’t wonder if the Brown decision was decided using an interpretation that itself was unconstitutional. While it should be universally agreed that purposeful segregation of the races based on the assumption that blacks are an inferior race had to end. It was a shameful policy that has rocked our moral conscience as a nation. But, to use the very same criteria (race), especially as in the busing cases, to remedy for the past sins of segregation has been challenged as an unconstitutional exercise of judicial power. A violation of the 14th Amendment is a violation of the 14th Amendment, whether it’s used for bad or for good.
Diane was born in New Jersey and lived there most of her life. She attended Seton Hall University School of Law where Judge Andrew Napolitano was her constitutional law professor.She and her family moved to Greenville, NC in 2001.She is married and has 4 children.
Latest posts by Diane Rufino (see all)
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