Charge to Grand Jury: Fugitive Slave Law, March 1851

The citation is 30 Fed. Cas. 1015, Case No. 18,263. This charge was from Federal Judge Peleg Sprague, a judge President John Tyler of Virginia had appointed to the Federal Judiciary, taking his position in 1841. This was in the District Court in the District of Massachusetts.

This charge to the grand jury was precipitated by the Shadrach Minkins rescue in Boston in 1851. Minkins, a fugitive slave who had escaped from his Norfolk, Virginia owner, was captured in Boston on February 15, 1851. A crowd of hundreds of antislavery people surrounded the courthouse where he was being held, and a group of men broke in and rescued him. Minkins eventually made his way to Canada and was never recaptured.

Judge Sprague delivered his charge to the grand jury as they were beginning their investigation of the rescue for possible prosecution of those who had participated in it. He begins his charge by stating, “The office you now hold demonstrates that the constitution has established, not a mere confederacy of states, but a government acting directly upon individuals, with a legislature to enact laws, a judiciary to expound them, and an executive to enforce them. Under this government, the people of the United States have enjoyed a greater degree of liberty, prosperity, and happiness, than have been enjoyed by any other people in the history of the world. To preserve this government, it is necessary that its laws should be faithfully executed, and you are now called upon, under the highest sanction, to aid in this indispensable work.” [30 Fed. Cas. 1015]

Sprague then links resistance to the so-called “Fugitive Slave Law” to treason against the United States: “I think it proper, at this time, to call your attention particularly to that part of the Criminal Code, which prohibits and punishes forcible resistance to the laws. Government is so great a blessing, that the highest crime which can be committed, is treason. This is defined by the constitution itself in the following words: ‘Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort’ [Const art. 3, § 3.] What amounts to levying war? This question arose soon after the adoption of the constitution, in the several trials of Mitchell, Vigol, and Fries, for being engaged in the Pennsylvania insurrection, against the law imposing a duty upon distilled spirits, under the administration of Washington, and subsequently, in the trial of Aaron Burr, in the year 1807, and in the case of U. S. v. Hoxie [Case No. 15,407], in the year 1808. These were all trials in the circuit court The only case which has come before the supreme court, was that of Ex parte Bollman, 4 Cranch [8 U. S.] 125. In this case it was decided that, ‘if a body of men be actually assembled for the purpose of effecting’ by force a treasonable purpose,’ this is levying war. What is a treasonable purpose? If the object be entirely to overthrow the government at any one place, by force, as at New Orleans, which is the case mentioned by the supreme court, that is a treasonable purpose. But a conspiracy to do this, and actually enlisting men who never assemble, is not sufficient to constitute the crime of treason. There must be an actual assemblage of men, for the purpose of carrying the conspiracy into effect by force. So also, it is a treasonable purpose, if the object be to prevent, by force, the execution of any one law of the United States, in all cases;—for it is entirely to overthrow the government as to one of its laws. And if there be an actual assemblage of men, for the purpose of carrying such an intention into effect that is, of acting together, and preventing, by force, the execution of the law generally—in all cases it will constitute a levying of war. But the sudden outbreak of a mob, or the assembling of men in order by force to defeat the execution of the law, in a particular instance, and then to disperse, without the intention to continue together, or to re-assemble for the purpose of defeating the law generally, in all cases, is not levying war. If war be actually levied, persons may be guilt, although not present with the force actually assembled. ‘All those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.’ ” [Ibid.]

He next talks about a more believable consequence, that mandated by statute: “There are minor offences created and defined by acts of congress alone. By St. April 30, 1790, c. 9, § 22 [1 Stat 117], it is enacted: ‘That if any person or persons shall knowingly and wilfully obstruct resist, or oppose any officer of the United States, in serving or attempting to serve or execute any mesne process, or warrant, or any rule or order, of any of the courts of the United States, or any other legal or judicial writ or process whatsoever, or shall assault, beat or wound any officer or other person, duly authorized in serving or executing any writ, rule, order, process, or warrant aforesaid, every person so knowingly and wilfully offending in the premises, shall, on conviction thereof,’ be punished by fine and imprisonment.” [Ibid.]

Following some more discussion about the law regarding fugitives from slavery, Judge Sprague then addresses the question of whether resistance to what is considered an immoral law is a moral requirement: “In this part of the country, the convictions of our understanding, our moral sentiments, and our religious opinions, are adverse to the institution of slavery. Hence some are ready to conclude, in the first place, that the provision of the constitution for delivering up fugitive slaves must be morally wrong; and, in the next place, that laws made to carry it into effect are to be disobeyed and resisted. Neither of these propositions legitimately follows from the premises. As to the first. The states, without the constitution, would be to each other foreign nations. The first duty of every nation is the preservation and protection of its own citizens. It is for this, primarily, that political societies are formed and their restraints submitted to. If, then, any nation finds that hospitality to foreign fugitives is inconsistent with its own peace and safety, it has a right to refuse such hospitality, and to say, to all such foreigners, we cannot receive you amongst us, and if you come, we must deliver you up to the dominion of your own government; and it may rightfully make a compact with such government for such delivery. Whether the peace and safety of the nation do, in fact, require or authorize such compact it is for the nation itself to decide, and its decision is to be submitted to and its engagements faithfully performed. Those, therefore, who have the strongest convictions of the immorality of the institution of slavery are not thereby authorized to conclude that the provision for delivering up fugitives slaves is morally wrong, or that our fathers in Massachusetts did not act wisely, justly, humanely, in acceding to the compacts of the constitution. But, secondly, even those who go to the extreme of condemning the constitution and the laws made under it as unjust and immoral, cannot even upon such an assumption, justify resistance. In their views, such laws are inconsistent with the justice and benevolence, and against the will, of the Supreme Law-Giver, and they emphatically ask, which shall we obey, the law of man, or the will of God? I answer, obey both. The incompatibility, which the question assumes, does not exist. Unjust and oppressive laws may, indeed, be passed by human governments. But if Infinite and Inscrutable Wisdom permit political society having the power of human legislation to establish such laws, may not the same Infinite and Inscrutable Wisdom permit and require the individual, who has no such power, to obey them? Can you say that it is His will that we shall rise up in forcible resistance, overthrow the power of the government, and, instead of the peace and security of organized society, introduce the dominion of anarchy and violence? Are such the appointed means for their abrogation? Unjust laws have always existed. Until a recent period, poor and honest debtors were, even here, oppressively imprisoned; and, in England, stealing, to the value of more than a shilling, was punishable with death, and the Code numbered more than one hundred and fifty capital offences. The wise and the good saw that these laws were cruel and unnecessary. They did not rush to arms, or counsel disobedience. But, by the diffusion of knowledge, by reason and persuasion, they changed the public mind, and the laws were peaceably ameliorated. The fruits of justice and benevolence, like the fruits of the natural world, are to be matured by mild and genial influences. The punishment of death is still inflicted by our laws. Many good men firmly believe that society has no right to take the life of one of its members. With them capital punishment is the highest injustice and the greatest wrong that can be inflicted. But they do not counsel resistance, to convulse society and overthrow the government, but quietly and conscientiously submit to the peaceful execution of the laws.” [30 Fed. Cas. 1015, 1016-1017]

In addressing the concerns that those people who act out of conscience to resist the law, Judge Sprague says that while conscience is to be respected, it can also be wrong. He then says, “Submission is a moral duty. This is as certain as that the Creator made man a social being, and designed that he should live, not in perpetual anarchy, but in peace and security; for human government is the only’ means which Infinite Goodness has provided, for preserving us from unceasing conflict and violence. To submit to the law of the land-is, then, to obey the will of God. It may be asked, is resistance never justifiable? Is there no exception? I answer, yes! When oppression present and prospective is so great as to justify a resort to the ultimate right of revolution. But this is not to be done from impulse or feeling, but from the calm and careful consideration of the dangers and difficulties of the proposed remedy. A wise man will reflect that evils, great evils, must exist under every human government; that a perfect fabric cannot be made of imperfect materials, and that, whatever he may attempt, he must still work by and with fallible man, with all his blindness, weakness and passion. If, after a deliberate contemplation of the convulsions and miseries attending the overthrow of the existing government, and the hazards and uncertainties of establishing a better on its ruins, he firmly believes the permanent happiness of the community requires the attempt, he may conscientiously make it. Under a despotism, such a case may occur not unfrequently, but we can hardly suppose it to-exist in a republic, where the laws are made by the people themselves, through agents freely appointed for short periods, by frequent elections.” [30 Fed. Cas. 1015, 1017]

Today we can look back and see that perhaps those who resisted the laws demanding return of fugitives from enslavement were morally right to do so, but if we’re to try to understand the people and events of the past, we have to take them on their terms, not on our terms. Serious men and women were concerned about avoiding anarchy and supporting a government of laws, and their belief was that putting the morality of slavery aside, jettisoning the rule of law was far worse. It’s a function of the evil of slavery itself, not of the people of the time, that what we can regard as bad laws were enacted by otherwise good people. We should seek to understand why the laws existed, how they were enforced, how and why they were resisted, and what happened as a result. We shouldn’t try to judge the people charged with enforcing the law because they enforced a law with which we may not agree. I think Judge Sprague’s charge, along with the other charges considered earlier, reveals what was going through their minds. That’s what makes these charges and cases important.

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