by Steve Palmer
Introduction
It might be instructive to look at how Pennsylvania dealt with the issue of slavery in our early history. This topic is useful, because in retrospect it is perfectly clear which side was morally right. So, this week I learned a little bit about the history of anti-slavery laws and se
ntiment in early Pennsylvania. I have only scratched the surface, so we will probably revisit this topic in the future. It may be that Pennsylvania’s activities, in support of Liberty for blacks in early America, can contribute to our Tenth Amendment roadmap for the future.
The first ever American resolution against slavery was issued from Pennsylvania in 1688. The University of Houston quotes the Germantown Petition against slavery as saying, “…In Europe there are many oppressed for conscience-sake; and here there are those oppressed which are of a black colour….Pray, what thing in the world can be done worse…”. The Germantown Petition, although largely ineffective, was passed among the Quaker communities in Pennsylvania.
Anti-slavery sentiment in Pennsylvania grew during the following years. Numerous writings against slavery, by various Quaker authors, were published in Ben Franklin’s Philadelphia newspaper. Pennsylvania abolished slavery, using a gradual phase-out starting in 1780, and George Washington commented in 1786 that “once slaves got to the Pennsylvania/West Jersey area, they became nearly impossible to find and retrieve”.
Between the American Revolution and The Civil War, two fugitive slave laws were passed by the federal government in order to attempt to ensure that slavers were able to forcibly return any slaves who had escaped to other states. Pennsylvania met these federal laws with laws of our own, designed to insure liberty for the escaped slaves and to nullify the unjust federal legislation within Pennsylvania’s borders.
Federal Fugitive Slave Act of 1793
In 1793, the first Federal Fugitive Slave Act (FFSA) was issued. Wikipedia says that this act established a legal mechanism by which fugitive slaves could be seized, brought before a magistrate, then forcibly returned to their state of origin.
Pennsylvania’s legislative resistance to this law apparently began in the 1820s. There are conflicting claims about Pennsylvania’s legislation in that decade, but the years 1820 and 1826 are commonly mentioned. The University of Pittsburgh says that in 1820, Pennsylvania passed a law to prevent state officials from enforcing the FFSA.  In 1826, after receiving an appeal from Maryland to implement the FFSA, Pennsylvania responded by passing another law which is variously referred to as a Personal Liberty Act or a state Fugitive Slave Act and “After enactment of the 1826 law, there was virtually no way for a slaveholder to recapture a fugitive slave in Pennsylvania and be safe from prosecution as a kidnapper”.
Prigg v. Pennsylvania
Supreme Court Justice Taney
According to many sites, including TheDish.Org, a Maryland slave named Margaret Morgan escaped to Pennsylvania in 1832. A warrant was received from a Pennsylvania district justice to forcibly return her to Maryland, but the local constable refused to honor it. She and her children were then abducted and taken to Maryland by several Maryland men, including Edward Prigg. Pennsylvania charged the men who abducted her with kidnapping and the dispute made its way to the Supreme Court in 1842.
In the decision, the Supreme Court ruled that the FFSA was constitutional and Pennsylvania could not prevent federal agents from enforcing it. The court also ruled, however, that Pennsylvania state officials could not be compelled to enforce the FFSA.
Personal Liberty Laws and a New FFSA
In 1847, Pennsylvania passed a new Personal Liberty Law.  The University of Pittsburgh says, “This law provided sanctions for purchasing or removing free Blacks with the intention of reducing them to slaves; prohibited state officials from accepting jurisdiction over cases arising under the federal Fugitive Slave Act of 1793; provided penalties for claimants seizing slaves in a violent, tumultuous, and unreasonable manner”.  The AfroLumens Project says that this law was carefully crafted to comply with the Prigg v. Pennsylvania Supreme Court ruling. Around that time, New York, Vermont and Ohio passed similar Personal Liberty Laws.
The federal reaction to the new set of Personal Liberty Laws was to pass the Fugitive Slave Act of 1850. This law provided for the seizure of blacks without any due process at all. As a result, even free blacks were suddenly at risk of capture based on nothing more substantial than an accusation. This, in turn led to more Personal Liberty laws from many of the North Eastern States including Massachusetts in 1855.
A Proposed Compromise
In 1860, a Virginia Newspaper carried an editorial proposing a compromise to save the Union. In this editorial, they suggested that Pennsylvania could save the Union by repealing our Personal Liberty Law, saying,
“There will probably be a separation of one or more States from the Union before the obnoxious laws passed by some of the Northern States can possibly be repealed. But the separation will not be final if Pennsylvania, responding to the patriotic suggestions of Virginia, shall set her sister States of the North the example of repealing an act conceived in unreasonable hostility to the South, and beyond all question violative of the just rights of the people of fifteen sovereign States.”
Lessons for Pennsylvania Today
We all know what happened next. A brutal and bloody war was fought and slavery came to an end. We should be careful about reading too much altruism into the federal government’s motives in that conflict though. Ending slavery in America was merely a happy side-effect. President Lincoln, the Great Emancipator, wrote in an 1862 letter to Horace Greely,
“If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union”.
Then, as now, Washington’s primary goal was to maintain political dominance.
From this history, we can learn a few things which may be helpful when we think about nullification in the modern context. First, it is indisputable that Pennsylvania’s Personal Liberty Laws were right and the federal government was wrong. The federal government was attempting to take away the blacks’ inherent right to liberty. Pennsylvania stood on the side of natural law. It is crystal clear that nullification is a valid course of action for a state pursuing a just cause.
As far as tactics, the various states used different tactics in their Personal Liberty Laws. Some of the legislation simply said that state officials need not assist with enforcing the FFSA; Other legislation made it illegal for state officials to assist with enforcement and still other legislation made even Federal action illegal within the state. A variety of tactics like these should be kept in our nullification tool box.
From Prigg v. Pennsylvania, we learn that we can count on the federal government to take the side of the federal government in any particular dispute. From the 1860 VA Newspaper editorial we learn that the Supreme Court does not give the final answer. Regardless of the Supreme Court’s ruling in 1842, Pennsylvania apparently continued to successfully hinder abductions for another 18 years.
Lastly, we see from the 1850 FFSA which followed the 1847 Personal Liberty Law, that the initial response from the federal government will be to escalate when challenged. Only through persistent challenges from numerous states will the federal government eventually wind down. Pennsylvania resisted the federal government on this issue for somewhere around forty years. Successful nullification requires commitment.
Natural Rights
Before wrapping up, I would also like to redirect slightly for a final point about natural rights. Some of today’s writers seem to think that our rights are granted and revoked at the whim of the government. Examining the question of slavery makes the error in that viewpoint clear. Was slavery reprehensible because of the thirteenth amendment or was slavery reprehensible because men’s inherent rights to Liberty were being violated?
Those who say that our rights come to us at the pleasure of government must also believe that if a majority votes to repeal the thirteenth amendment, than slavery could be sanctioned. This is self-evidently wrong to anyone with a functioning conscience. It is clear from this example that our rights are natural possessions which cannot be granted or withdrawn by government edict.
The government’s role is to be a protector of rights, not a giver of them.
Steve Palmer [send him email] is the State Chapter Coordinator for the Pennsylvania Tenth Amendment Center
Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given
I've only scanned this wonderful article, but I wanted to be the FIRST to express my enthusiasm for the topic: The Nullification of slavery and the defense of man's natural rights. Hear, hear!
Very well written to express the issue of states rights.Thanks
I enjoy a well researched article substantiated by facts and expressed by objectivity. Thanks for the insight.
Well written article. Kudos. Too bad Penn isn’t like that now. Now it is a bunch of stasi cops with sound cannons beating up old ladies.
(G20).
Very interesting, well researched and well written. However I would like to take this opportunity to point out that slavery is still just as much in force as it was over 200 years ago. Only the owners have changed. Now days blacks have the option of one of two owners or can embrace both as times and idea's shift. Todays blacks belong to the liberals who will gladly give the poor negro all he needs to live asking for nothing but their support in return. The other masters are conservatives who will provide an opportunity for equality for those bold enough to seek it and again asking only for your support in return. My comments will open a can of worms I have no doubt so I will leave this one last thought. When you hear of a black person flying a small plane into an IRS building in protest then you will know blacks at last are truly seeking freedom. Hopefully this never happens again but think about it and I am sure you will agree with me.
Before I am accused of racism let me say my comments apply more to a "class" of people rather than a color. Slaves come in every color and nationality these days. I used the "black card" because I thought it made the point much better.
Your final comments regarding natural rights are the best. So many people think the Government grants us rights. Carefully read the first ten amendments of the Constitution, and find me one phrase which grants you or me a right of any kind. Our rights are presupposed to be inherent in our nature as human beings. They come from God. Even each of our enemies has the same rights as we do.
Rights are "negative", not "positive". Consider: If one had the right to pick another's pocket, that would be a positive right; if one has the right not to have his pocket picked, that is a negative right. Which makes more sense? Keep these thoughts in mind when you consider our proper relationship with the Government. You can be sure almost all of our politicans take the position that "positive" rights are inherent in our rights as citizens.
Politically (because of the slave topic), the article is good. But it over simplifies the property issue. We have to take our Constitution for what it was/is. If you want to retreat back to its original intent, then consider that the original intent clearly was to permit slave states to continue the practice of slavery and to have a proportionate share of their slave populations counted in terms of seating representatives in Washington.
I am 100% behind the abolition of slavery, but what the article misses is that we are in the "now" and not the "then." Then, slaves were property – no if's, and's or but's. That was fact.
Now, let's talk about property. To do this, you need to pretend that there was a world in which vast populations did not think blacks should be given freedoms but should be held, duty-bound to work for their owners. It's repulsive, but think that way for this limited purpose.
If I had a cow on a ranch, and it wandered out and crossed state lines, do I not have a right to recover my stray cow? What if the neighboring state was full of people in the GreenPeace movement (or whatever they call themselves) and they believed veganism was to be the natural law of God?
There is a concept in the Constitution called "comity." Every state is required under the Constitution to respect the property rights and practices of citizens of other states (at least to some extent).
Here is Art. IV, Sec. 2: "No Person held to Service or Labour 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 Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."
In response to the previous post, "due" did not connote consideration – meaning the exchange of promises. Due meant "to whom it belonged."
Art. IV, Sec. 1 also sets outs principles of comity: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof. "
So, if I go to court in my state, and the court proclaims the cow belongs to me, your state is supposed to honor my right to retrieve it.
Now, who here thinks that if their cow wanders off their farm and into a neighboring state that his ownership is forfeited at the utter [ not udder
] whim of the state next door? What if it's not a cow? What if someone steals your car and drives it across state lines? You can think of many examples.
The Fugitive Slave Acts were designed to preserve comity among states who disagreed about slavery. The idea was that even states who disagreed were duty-bound to understand that, being part of a union of states, they should be required to accept divergent practices of sister states and to respect their property rights – not hinder them.
So, IMO, the article sets forth a "politically correct" reason why Pennsylvania's nullification efforts in this regard are to be championed, but if you stay true to the Constitution, it is clear that its efforts were against the grain of comity and property rights.
Did the breaches of the Constitution in regards to property rights vs. freedom prevail on the right side? Sure. But if you agree, then, you must admit the Constitution was ill-equipped to deal with the issue in the first place.
Jeff
Your analysis is initially persuasive from a purely legal perspective in an era when people were treated as property in the eyes of the law of many states.
To me, the main mistake the Founders made was in not dealing with slavery, then and there. They KNEW it was a huge issue and they kicked the can down the road by compromising.
I'm sure they felt they had to do that in order to get a document that had any chance of ratification but, the hypocrisy of writing that 'all men are created equal' while counting slaves as 3/5 of a person is hard to ignore. (It gives people like Obama the opening to treat the entire Constitution as if it were merely toilet paper and the Founders were racist scumbags.)
That compromise left a ticking time bomb that caused untold damage to the nation down the road. Even today, long after the war between the states, we all suffer from the effects of that compromise.
The lesson to me is that compromise of your basic principles for short-term results is not a wise solution. If you have to do that to get something done, then you're part of the problem.
This leaves the principled, uncompromising person with very little room to maneuver in a world filled with people who are only too eager to do whatever it takes to 'get ahead.' It's a very tough row to hoe and I can only speculate on what might have happened if the anti-slavery Founders had adhered to their ideals that all men are created equal.
That's why I admire someone like Gandhi who, as far as I can tell from my admittedly-biased public education, had the courage to refuse to compromise. Although his mortal life was terminated early, his ideals are immortal.
Some things you can compromise on, like where to eat dinner tonight. Some things you cannot compromise on, like who owns Chicken George. (Answer: Chicken George.)
People have a moral duty to refuse to obey grossly or obviously immoral laws or orders from TPTB. Even soldiers are expected to do it as Lt. Calley learned. The Nazis who were "just following orders" were guilty. If your CO orders you to murder a subdued prisoner, you're expected to refuse. I'm not saying it's easy or that I've demonstrated the 'sack' it takes, but it's no excuse to say "I was just following orders."
So, the principle of comity must give way in this case because the Fugitive Slave Acts were based on a gross violation of the natural rights of all men.
Guest, you and I don't disagree. My conclusion is that if you think Pennsylvania went the right course by NOT following the Constitution, then, you have to admit the Constitution is not the "end all" in terms of what is "right" vs. "wrong." I think your reply seems to admit that as well when you say the founders compromised and kicked the can down the road.
I am just saying that, properly, nullification is not just a Constitutional concept. In this case, it is clear that nullification was used to DEFEAT the Constitution.
So, in considering the concept of nullification, it is VERY clear that we don't just go back to the Constitution to question the process of nullification in order to support nullification or argue against it. Nullification is a FAR simpler concept. It is basically "disobedience." The answer, when you go down that road, has nothing to do with the Constitution, except to the extent people want to point TO the Constitution to justify their actions. But for each of those, there are many examples of nullification where people refuse to follow the rules, which have nothing to do with retreating to Constitutional principles.
We are having a new discussion about "Natural Law," for example. Now, in reality, there is no such recognition of any so-called "Natural Law" in our Constitution or in any statute or regulation anywhere. "Natural Law" is a fall back position for people who don't want to recognize written law. "Natural Law" is infinitely malleable; people can say it is whatever they want it to be. It is anarchy whitewashed. It means whatever people of common understanding want it to mean.
There is nothing wrong with that. The reality of a person's or group's concept of Natural Law is that if it varies from written law too greatly, then it boils down to "might makes right." That was what the Declaration of Independence was all about. If we had lost the rebellion, our founders would have been jailed and perhaps executed.
For example, it is not too absurd to realize that people might argue that "Natural Law" means there should be a greater sharing of our abundance among the People, rather than having vast proportions concentrated among a small cross-section of elites. Others may argue, as was the culture of Native Americans, that individual ownership of lands was against "Natural Law" and that lands were to be freely traveled and worked by whoever wanted to do so whenever they wanted to do so. This is not an outlandish concept, and it was actually in practice for millenia before the New World was discovered and settled by Europeans. As history has shown, the Native Americans' concept of Natural Law was not exactly the same as that of the new settlers.
Natural Law is beyond grasp, infinitely malleable and almost of no real use to law-abiding societies. It leads to the ultimate "Natural Law," which is "might makes right."
Jeff
My use of the term 'Natural Law' is not intended to refer you to some fixed objective standard but is a term of art that indicates a concept much higher than its name would imply, ie, the law of nature. As you say, the law of nature is the law of the jungle. That's not what I was talking about since the term is 'Natural Law' and not the "law of the jungle."
Most societies have agreed on some fundamental rules. The fact that there are variations on some issues such as sharing the wealth or private property rights does not obliterate ALL areas of agreement such as "life, liberty and the pursuit of happiness."
"Natural law" is really the opposite of the law of the jungle in this context and I'll quit using that term since it is apparently too likely to be misinterpreted.
I suspect the term evolved from people such as I who didn't want to get into arguments about "God" and religion and were hoping to not have to write a treatise on the nature and origins of good vs. evil every time they wanted to refer to an aspiration of some "higher" philosophy than 'might makes right.'
The concept is that humans can aspire to a higher standard than 'might makes right' and that aspiration is evidenced in much of the Constitution. To the extent the Constitution is flawed, people of good will can try to rectify it by amendment.
As I said, they dropped the ball on the slavery issue and it was a BIG mistake.
"Nullification" is not "disobedience" if there is no duty to obey in the first place. The term 'nullification' refers to the concept that the 'law' in question was not valid ab initio and will thus not be followed. Again, I already tried to say that in my previous comment about soldiers and Lt. Calley, etc.
In the end, the pessimists of the world will always be able to forcefully argue that there is no hope for humanity to rise above the law of the jungle and we might as well all give up and kill ourselves and each other in anarchy.
I cling to the possibility (though not probability) that humanity has the ability to make progress toward peace and mutual prosperity, albeit slowly. The Constitution is, on balance, progress and I therefore support it on the whole as the best hope I can see for me and my kids at the moment.
Since I have kids, I also cling to the hope that they can benefit from my efforts to spread that ideal.
Right. I did not misunderstand you. When people disagree on written law, they sometimes turn to Natural Law. What happens when they don't agree on Natural Law? Where to from there?
On some more modern issues of concern, maybe we could take up some of these points in the comments to the recently-posted Napolitano article. I already left two comments there.
In what was my grandfather's house (28 Prospect Ave, Wakefield RI) there was a slave closet behind the north wall of the central chimney, a very small hidding place for slaves – part of the slave railroad. A lot of now forgotten people risked their welfare to help the cause against slavery.
This is an outstanding article. The point is well made, but we need to remember, this nation took up arms against itself for this and many other reasons during that time, and not much different from many of the issues we are facing today. We need to act today before it comes to that. It will come to pass, that if we don't reign in this socialist monster now, while we still can, America blood will be spilled on our soil once again. I’m just saying.
Hey, I like this a lot. And, I don’t want to sound picky now, but I think it can be improved in a few places.
For the author… One citation is entirely unreliable, Wikipedia. For example, on April 8th, 2008, I could have said the definition of “bungalow” included “[WHO LOVES PANKAKES >? WE LOVE PANKCAAAKKEKEESSSSSS,” “according to” Wikipedia. See: http://en.wikipedia.org/w/index.php?title=Bungalo… . To properly use Wikipedia in a search for authoritative information, find the relevant information on it, then follow the citations, check them to ensure both that they are reliable and that they say what you think they do, then cite only the sources. Also, the Dish site looks unprofessional, thus is likely unreliable, and adding “many sites” to your sources is vague. The only source I have found that is likely to support your Prigg v. Pennsylvania argument is this: Paul Finkelman, “Prigg v. Pennsylvania and Northern State Courts: Anti-Slavery Use of a Pro-Slavery Decision,” in 25 _Civil_War_History_ 6–8, 21 n. (1979). Have you tried it? Sorry, but I am not able to get it myself to be sure.
For the editor… A (Virginia) newspaper is an “it” not a “they,” “escalate” is transitive only, and one space only (not two) belongs after each period.
But overall, this article is very good, accurate in its arguments, and an asset to all the states.
Now, can anyone tell me how Justice Story in Prigg v. Pennsylvania could deduce that “such service or labor” as slavery could “be due” from a slave to an owner? What was it meant to be due in exchange for?
Beautiful article.
I've heard alot of argument from some seriously misguided and poorly educated people about how nullification is illegal,or how it was the legal principle behind the Slave States' argument to keep other Americans as slaves.
A History Lesson is in order.I found this article to be most instructive to the point.
My own feeling is that States need to make legislative findings and declarations of fact as to the meaning and intent of the 9th, 10th, and 14th Amendments, and the Commerce Clause. These findings need to be scrupulously researched and supported so that the States are on solid indisputable Constitutional groudn when they say that the federal government (congress/judiciary) have exceeded their legal authority in any given act.
The Firearms Freedom Acts of Montana does essentially this. It makes a legislative declaration of fact that local incidents of firearms are beyond federal regulatory power under the Commerce clause.
This sort of thing needs to be expanded to EPA, OSHA, and ten thousand other criminal usurpations of the federal government.
I think you're right.
To me, it's like the Declaration of Independence where the authors laid out a careful case for their actions before acting.
This gives you at least some cover from the inevitable charges that you're just a bunch of gun-loving, green-toothed, illiterate, radicals who want to shoot the place up with your "assault" rifles.
Great article, Mr. Palmer! Bravo!!!
Whether it is the individual or a state, may the argument for just treatment be such that God Himself might approve.
Well done, Sir.
Legal protection of rights are revoked…
Only by illegal means too.
I believe the problem is referred to as treason…
Accountable with your life would sure straighten all these things out real quick like.
Irrespective, it is slated to come unglued in the next few months…so hope ya-all is ready.
April/May is the expected time area.
Obama has requested 20K foreign troops to help win the coming civil war…
Gettin ta be fun yet?
And you thought you had had a far out ride at some other time in your life, hmmm?
Then there is the fact of Homeland Security Act automatically instituting a 'Constitution Free Zone'… oooeee!!!
Martial Law has been silently put in place- 100 miles inland from our nations international borders…!
Check that ACLU web site, it's listed on there with maps an cases pending…
Welcome to the real nightmare…already started…