Charge to Grand Jury – Fugitive Slave Law, April, 1851

At the beginning of the April, 1851 term, Justice Samuel Nelson, the Circuit Justice for the District of New York, delivered these directions to the Grand Jury in anticipation of cases arising from the 1850 law popularly known as the “Fugitive Slave Law.”

The citation for this is 30 Fed. Cas. 1007, Case No. 18,261.

Justice Nelson begins by discussing Article IV, Section 2 of the US Constitution, a clause popularly known as the “Fugitive Slave Clause:” “At the time of the adoption of the constitution by the convention, on the 17th of September, 1787, slavery existed, I believe, to an extent more or less in each of the states then composing the Confederacy. About one-fifteenth of the population of New York were slaves; the proportion in the New England states and Pennsylvania was much less; and in New Jersey about the same as in New York. All the original states, therefore, were interested, more or less, in the adoption of this provision into the constitution, but more especially the Southern states, where, speaking generally and without strict accuracy, about half the population consisted of this class. It was, however, anticipated that, in the progress of time, slavery, while it would increase in the South, would diminish and finally become extinguished in the North. So just was this provision regarded at the time by the members of the convention, and so necessary for the security of this species of labor, and the existence of friendly relations between the different members of the Union, that it was adopted without opposition, and by a unanimous vote. It was of the deepest interest to the Southern states, as, without the provision, every nonslaveholding state in the Union would have been at liberty, according to the general law of nations, to have declared free all runaway slaves coming within its limits, and to have given them harbor and protection against the claims of their masters. I need not say at this day, that such a state of things would have led inevitably to the bitterest animosities, especially between border states, and have been the source of perpetual strife, and of the fiercest passions, between the Northern and Southern portions of the Union. The evil was felt at the time by the Southern portion, as the articles of confederation contained no such provision; and it was to guard against that evil, and to lay a foundation that would afford future security, and preserve the friendly relations and intercourse of the states, that the provision was incorporated into the fundamental law. No one conversant with the history of the convention, and particularly with the difficulties that surrounded this subject in almost every stage of its proceedings, can doubt for a moment, that without this, or some equivalent provision, the constitution would never have been formed. It was of the last importance to the Southern portion of the Union, and could not have been surrendered without endangering their whole interest in this species of property. It is not surprising, therefore, that it is still adhered to with unyielding resolution, and is made the groundwork of a question upon which the continued existence of a Union thus formed is made to depend. The clause in the constitution is general, and simply declares that the slave escaping into another state shall not thereby be discharged, by any law or regulation of the state to which he has fled; but shall be delivered up on claim of the person to whom the service is due. The mode of delivering up to the claimant is not prescribed, and, until regulated by law, continued to be the source of embarrassment to the master, and of disturbance and disquietude among the states.” [30 Fed. Cas. 1007, 1008]

Justice Nelson follows that with a short discussion of the first so-called “Fugitive Slave Act,” passed 12 Feb 1793. He discussed the various parts of the act and then wrote about how it had been found constitutional in the case of Prigg v. Pennsylvania [41 US 539]. “Doubts had been expressed, and, in some instances, decided opinions given by state judges, that it was not competent for congress to confer upon state magistrates the power to carry into execution a law of congress, inasmuch as the judicial power of the federal government was vested by the constitution in a supreme court, and in such inferior courts as congress might ordain and establish. It was also argued with much force, that if congress possessed this power, it might burden the state judiciary and magistrates with duties that would be incompatible with, or embarrass the faithful discharge of those which concerned the state. Influenced by these views, or some others, the legislatures of some of the states passed laws forbidding their own magistrates from acting under the law in the surrender of fugitives, and enforced the prohibition with heavy penalties. It is not doubted that it was entirely competent for the states to prohibit their own magistrates from assuming the duty of executing the law; but it was held in Prigg v. Pennsylvania, to be clear, that if not so forbidden, it was competent for them to act, and that the exercise of the authority under the law would be valid and binding upon all the parties concerned. This interference of the state legislatures greatly paralyzed the execution of the law; and, indeed, had the effect, for the time being, to abrogate virtually the provision of the constitution. It left but one, or at most two officers in a state, competent to execute it, as the power was thereby restricted to the circuit and district judges of the United States. Our own state, as early as 1830, forbade her magistrates from acting, under the penalty of fine and imprisonment.” [30 Fed. Cas. 1007, 1008-1009]

That brings him to a fairly lengthy discussion of the 1850 law, including each of the sections and how they differed from the previous law. Once finished with that discussion, Justice Nelson proceeded to a discussion of whether a state could interpose its own judicial authority by issuing a writ of habeas corpus for the accused fugitive slave. “It seems to be supposed, however, in some quarters, that the state power exercised by its tribunals under the writ of habeas corpus, forms an exception to this generally admitted doctrine; and that, through the agency of this writ, the fugitive may be taken out of the hands of the federal officers, and the authority or propriety of the arrest or detainer be inquired into, and the person be discharged or remanded, according to the judgment of the state magistrate. This is the exception claimed to the exclusive power of the federal officers designated in the act. It is apparent, if this exception can be maintained, that there is an end to the complete execution of the law; or, indeed, of any law of the general government by which the party is subject to an arrest. It is not claimed that the state magistrate can, under this writ, administer the act and enforce its provisions, as that authority, as we have seen, is confined to the tribunals appointed by the act for the purpose. The fugitive must therefore be taken, if taken at all, out of the hands of the federal officers by force of some other law; and the question whether he or she shall be discharged or remanded, will depend upon the application of that law to the particular case. What that law is, or may be, must necessarily depend upon state regulation; and the rights of the claimant under the constitution and laws of the Union will thus be determined by a law of the state. The effectual abrogation of the act by the interposition of this writ, if admitted, will be still more apparent, when we reflect that the power exercised under it is such as the state legislatures may choose to prescribe; and that the state tribunals are not only invested with that power, but, if they act at all, are bound to act in obedience to and in conformity with it. There is no limit, therefore, to the extent of the powers that may be exercised under this proceeding, in respect to the arrest and detainer of the fugitive, but the discretion of the state legislatures. They may confer jurisdiction upon their magistrates to re-examine and revise the acts and decisions of the federal tribunals out of whose hands the fugitive is taken, and the state magistrate would be bound to execute the power accordingly. It is manifest that it would be impossible to uphold the due execution of the law with the admission of any such authority. Conceding, however, the soundness of this general view, and the inability of the state tribunals to interfere with the federal authorities when they are acting upon cases arising under the constitution, laws of congress, or treaties, still, it is argued that they possess the power, under this writ, to inquire into the legality of the authority under which the prisoner is held, and which may involve the constitutionality of the law and the jurisdiction of the court or officer. But, it is obvious that the existence of either power, on the part of the state tribunals, would be fatal to the authority of the constitution, laws, and treaties of the general government. No government could maintain the administration or the execution of its laws, civil or criminal, if their constitutionality, or the jurisdiction of its judicial tribunals, were subject to the determination of another. I need not stop, however, to discuss this question, as it arose and was settled in the case of U. S. v. Peters, 5 Cranch [9 U. S.] 115, more familiarly known as Olmstead’s Case. The legislature of Pennsylvania had passed an act declaring that the jurisdiction claimed by the district court of the United States was unconstitutional, and empowered the governor to resist the execution of its judgment Chief Justice Marshall, in delivering the opinion of the court, observed, that ‘if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.’ He further remarked that ‘if the ultimate right to determine the jurisdiction of the courts of the Union is placed by the constitution in the several state legislatures, then this act concludes the subject; but, if that power necessarily resides in the supreme judicial tribunal of the nation, then the jurisdiction of the district court of Pennsylvania over the case in which that jurisdiction was exercised, ought to be most deliberately examined; and the act of Pennsylvania, with whatever respect it may be considered, cannot be permitted to prejudice the question.’ I need not add that the judgment was regularly enforced, notwithstanding the state act.” [30 Fed. Cas. 1007, 1010] A state, therefore, cannot effect the release of the accused fugitive slave through the use of habeas corpus.

Justice Nelson anticipates the objection that this means there can never be a writ of habeas corpus issued in these cases. “It is proper to say, in order to guard against misconstruction, that I do not claim that the mere fact of the commitment or detainer of a prisoner by an officer of the federal government, bars the issuing of this writ, or the exercise of power under it Far from that. Those officers may be guilty of illegal restraints of the liberty of the citizen, the same as others. The right of the state authorities to enquire into such restraints is not doubted; and it is the duty of the officer to obey the authority, by making a return. All that is claimed or contended for is, that when it is shown that the commitment or detainer is under the constitution, or a law of the United States, or a treaty, the power of the state authority is at an end; and any further proceeding under the writ is coram non judice, and void. In such a case, that is, when the prisoner is in fact held under process issued from a federal tribunal under the constitution, or a law of the United States, or a treaty, it is the duty of the officer not to give him up, or allow him to pass from his hands in any stage of the proceedings. He should stand upon his process and authority, and, if resisted, maintain them with all the powers conferred upon him for that purpose. I certainly do not anticipate any such exigency. Far from it The habitual respect of the judiciary, state and national, for the law of the land, and legal authority, forbid it But it is proper that the officers should know their rights and their duties, if, unfortunately, by possibility, any such exigency should arise. These views of the paramount authority of the laws of the federal government in no way endanger the liberty of the citizen. The writ of habeas corpus secured to him under that government, affords the appropriate and effectual remedy for any illegality in the process or want of jurisdiction in the court, or for any unconstitutionality of the law. The remedy is as prompt and summary, as when administered by the state judiciary: and, in this way, by conceding to each government the free and unobstructed execution of its own laws and exercise of its own authority, harmony is maintained and perpetuated in the working of our most complex system of government.” [30 Fed. Cas. 1007, 1011] The accused fugitive, then, has the opportunity to ask for a federal writ of habeas corpus, according to Justice Nelson.

Justice Nelson also discussed the slave power states’ objections to Personal Liberty Laws passed by northern states. He discussed this within the context of the threat to the integrity of the Union posed by slave power state threats in response to Personal Liberty Laws. “It is not to be disguised, that the legislation of most if not all of the Northern states, tending to embarrass, and, in some instances, to annul the provisions of the act of 1793, has strongly impressed our Southern brethren with the conviction, that these states have resolved to throw off this constitutional obligation. They take it for granted, and it is difficult to deny the inference, that the acts reflect the general sentiment of the people on the subject; and that that must have become deep and abiding, to be sufficiently powerful to mould the legislation of the states. It is this legislation, more than occasional riotous assemblies in resistance of the law, that has forced them to the question, whether the Union, with this provision of the fundamental law rejected and contemned—a provision vital to the rights and interests of that portion, and without which the Union would never have been formed—is to them a blessing or a curse. A question raised, not by disaffected and tumultuous assemblages, often very equivocal evidence of the real sentiment of the public mind, but by the people of the states, through their organized governments; a question examined and discussed in the mode and through the agencies that examined and discussed that of entering into the Union at the adoption of the constitution. This question has been raised by fifteen states of the Confederacy, six of whom were original parties to the compact. It has been examined and considered over and over again, by the governors in their public messages, by the representatives in their legislative halls, by the people in their primary assemblies, and by the press; and they have come to the resolution, one and all, that if this hostile legislation is carried into effect, and the constitutional obligation is no longer adhered to by their Northern brethren, but thrown off, disregarded, and contemned, the Union is no longer a blessing, and should be dissolved—that the abrogation of one material provision of the fundamental law is destructive of the compact—and that the portion of the Union for whose benefit it was adopted, and whose rights and interests are thereby endangered, is absolved from its allegiance. This I believe to be the settled conviction and sentiment of fifteen states of this Union, and it presents an issue of the gravest aspect, and one that can neither be evaded nor suppressed. It is an issue which the Northern states must determine for themselves. That laws exist on the statute books of most, if not all of them, in conflict with the act of congress, and repugnant to this provision of the constitution, is matter of history. That the enforcement of these laws would be a virtual abrogation of the provision, is not to be denied. It remains for these states to determine whether any attempt shall be made to enforce them—whether they are to remain on the statute book a dead letter, or be repealed. These are questions of transcendent import; for the determination of them, in my humble judgment, involves the perpetuity of the Union.” [30 Fed. Cas. 1007, 1012]

This led Justice Nelson into making the case for appeasing the slave power states: “I am aware that opinions are entertained, and doubtless honestly entertained, that the Union has not been at any time in danger, and is not now. I wish these opinions were well founded. My deep conviction and belief are, that it depends, at this moment, upon the confidence inspired by the late proceedings in congress, and by the indications of public sentiment in the free states that this constitutional obligation will be hereafter executed in the faith and spirit with which it was entered into; that the friends of the Union in the slaveholding states now maintain their ascendency, and the allegiance of their states, by the confidence thus inspired; and that in case of any action on the part of the Northern states, destructive of that confidence, and of all hope of the execution of the obligation, it would not be in their power to maintain their position—and, I may add, they would not, if they could. If any one supposes that this Union can be preserved, after a material provision of the fundamental law upon which it rests is broken and thrown to the wind by one section of it—a provision in which nearly one-half of the states composing it are deeply and seriously interested—he is laboring under a delusion which the sooner he gets rid of the better. If it is preserved, which I do not doubt, it will be by a stern adherence to this fundamental law, and to every part and parcel of, it; neither section can throw off the obligation of a part in which it has no interest, and expect to preserve the Union. The very supposition implies degradation and dishonor, broken faith on the one side, and abject submission on the other. Neither can the motive for breaking the compact afford any apology or justification. If one article may be set aside by one portion, because it is repugnant to their sense of right and justice, another may be by another, because it is against their interest.” [Ibid.]

This shows, I think, how much the Federal Government was willing to bend over backwards to appease the slave power states in their desire to protect the institution of slavery. It shows the government accepted and defended a law widely regarded as an atrocity because it was required to keep the slave power states happy. Subsequent events would show the appreciation these states had for the Federal Government’s support.


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