Hat tip: Tenth Amendment Center
by Steve Palmer
22. Feb, 2010
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 sentiment 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.
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.