Avenues of Democratic Resistance: Northern Responses to the Fugitive Slave Acts

Abstract

Throughout the first half of the nineteenth century, national political actors generally acknowledged the right of slave owners to recover fugitives from enslavement who had fled to the North, and outlined legal procedures for recovering those fugitives in the Fugitive Slave Acts of 1793 and 1850. At the local level, however, Northern responses to the rendition of fugitives proved much more volatile, and throughout the antebellum era local communities attempted to intervene on behalf of local African-American residents through a variety of means. This session is dedicated to discussing the legal and political strategies adopted by local communities to resist the recovery of fugitives in the North. Lolita Buckner Inniss will discuss the case of James Collins Johnson, in which a local court in New Jersey openly ignored the U.S. Supreme Court decision in Prigg v. Pennsylvania and ordered a jury trial for a local resident sought as a fugitive. This is one of several cases in the 1840s in which local tribunals continued to enforce state personal liberty laws that had been struck down by the Prigg decision. Daniel Farbman, drawing comparisons to the contemporary sanctuary movement, examines moments in which local governments sought to resist renditions by withholding cooperation with federal authorities, issuing statements supportive of fugitives, and enacting local ordinances designed to offer some measure of legal protection. Robert Churchill examines the wave of indignation meetings held to protest the Fugitive Slave Act of 1850, arguing that these protests constituted the broadest popular nullification movement in early American history. These meetings issued resolves that in many cases went beyond calls for repeal to declare the Act void and of no force, and to pledge resistance, even by armed force if necessary. Churchill offers a geographical analysis of the spectrum of public opinion and radical resistance based on the proceedings of over 400 such meetings. Together these papers offer a meditation on the manner in which local communities have acted to expand the boundaries of citizenship and to protect the rights of those residents existing, by necessity, in the shadows. Richard J.M. Blackett will chair the session and Graham Rao Hodges will provide comment.

“An Outrage Upon Our Feelings”: Local Governments’ Resistance to the Fugitive Slave Law of 1850

In the last few decades, local governments across the country have taken steps to protect the undocumented immigrants who live there. By declaring themselves “sanctuaries” city and town governments have staked out a position that is both rhetorical and legal. These sanctuary cities have challenged the federal government (who, now more than ever, would like the help of the local authorities to detain and deport undocumented immigrants) and sometimes state governments as well. There are crucially important open questions coming before the courts about how much power these local governments have to strike out on their own…and how effective their promises of sanctuary can be. This paper engages with those questions by examining a parallel movement in local and state government in the decades before the American Civil War. Then cities and towns faced the difficult question of whether to cooperate with a federal mandate to arrest and deport alleged fugitive slaves. In a number of cases (and increasingly as the sectional crisis intensified) local governments acted to broadcast their opposition to the federal policy and to proclaim themselves safe havens for free blacks. Then, as now, the strategies that local governments employed to construct themselves as sanctuaries were a complex combination of political rhetoric, unofficial actions, and explicit legal acts. And then, as now, the label of “sanctuary” was as much a political statement as it was a concrete policy. By tracing these similarities, this paper examines the extent to which local governments act as vehicles of political expression and resistance in our federal system and how that expression and resistance are manifest (or not) in law.

Presented By
Daniel Farbman, Boston College Law School

Judicial Nullification the 1793 Fugitive Slave Act: The Case of James Collins Johnson

Though the Fugitive Slave Clause of the United States Constitution guaranteed the right to reclaim fugitive slaves, it did not establish a mechanism for executing the law. 
To address this void, on February 12, 1793, the Second Congress passed “An act respecting fugitives from justice, and persons escaping from the service of their masters," better known as the Fugitive Slave Act of 1793. The Act was, according to some, not only a means to address the absence of slave recapture procedures but also a response to the proliferation of anti-slavery societies and the emergence of the Underground Railroad. Many anti-slavery activists objected to the Act, and some Northern states responded by enacting personal liberty laws, legislation that provided increased procedural safeguards for accused fugitive slaves. The New Jersey legislature enacted such a law in 1826 and amended it in 1837. However, the 1837 law effectively became dead letter in 1842 with the United State Supreme Court decision in Prigg v. Pennsylvania. The ruling in Prigg limited states’ power to enact legislation that conflicted with federal law. One New Jersey court responded to Prigg by engaging in judicial nullification: the court ignored the ruling in Prigg and allowed James Collins Johnson, an escaped slave from Maryland, to have a trial by jury. Johnson ultimately lost at trial, though he gained his freedom by other means shortly thereafter. Through a discussion of Johnson’s case I explore the concept of state court judicial nullification of the 1793 Fugitive Slave Act. I consider whether, even given the wrongfulness of slavery, judicial nullification was the most efficacious means of combatting pro-slavery federal law.

Presented By
Lolita Buckner Inniss, Southern Methodist University, Dedman School of Law

The Indignation Meetings of 1850 and the Popular Nullification of the Fugitive Slave Act

In the last three months of 1850, a wave of popular protest swept the North as residents assembled in hundreds of public meetings at the local level to denounce the passage of the Fugitive Slave Act of 1850. This paper follows in the footsteps of Richard Blackett’s discussion of these meetings to offer a comprehensive examination based on a database that incorporates descriptions and published proceedings of over 400 such meetings. Collectively these meetings constitute the broadest movement for the popular nullification of a federal law in early American history. My analysis will explore the geography of this movement, examining where these meetings went beyond calls for repeal to declare the law void and of no force, and where local communities publicly committed themselves to resist its provisions, even by armed force if necessary. It will also discuss the manner in which this campaign breached long-standing efforts by the second party system and the partisan press to ban such “fanaticism” and “agitation” from the public sphere.

Presented By
Robert H. Churchill, University of Hartford

Chair and Commentator: Graham Russell Hodges, Colgate University
Graham Russell Gao Hodges is the George Dorland Langdon, Jr. Professor of History at Colgate University. He is the author or editor of seventeen books; the most relevant are David Ruggles: A Radical Black Abolitionist and the Underground Railroad in New York City (UNC Press, 2010) and "Pretends to be Free": Runaway Slave Advertisements in Colonial and Revolutionary New York and New Jersey (revised edition, Fordham University Press, 2019). He has directed seven NEH Institutes on Abolitionism and the Underground Railroad.

Presenter: Lolita Buckner Inniss, Southern Methodist University, Dedman School of Law
Lolita Buckner Inniss is the Senior Associate Dean for Academic Affairs, a Professor of Law and is an inaugural Robert G. Storey Distinguished Faculty Fellow at SMU Dedman School of Law. Before coming to SMU she served at Cleveland-Marshall College of Law, Cleveland State University, where she was a Professor of Law and held the Joseph C. Hostetler-Baker and Hostetler Chair in Law. She was also a fellow of the New York University-Centre National de la Recherche Scientifique Memory Project in Paris, France. In addition, Dr. Inniss is a pro bono attorney with the American Bar Association/United Nations Development Program. Dr. Inniss received her undergraduate degree from Princeton University and her J.D. from University of California, Los Angeles. She also holds an LL.M. with Distinction and a Ph.D. in Law from Osgoode Hall, York University in Canada. Her research addresses historic, geographic and visual norms of law, especially in the context of comparative constitutionalism, gender and race. One of her recent writings is a book titled The Princeton Fugitive Slave: The Trials of James Collins Johnson (Fordham University Press, 2019), a microhistory that follows its subject James Collins Johnson from life on the social margins as an enslaved man in Maryland, as a fugitive who undergoes a sensational trial for re-enslavement, and as a nominally free man in a northern college town governed by southern sensibilities.

Presenter: Robert H. Churchill, University of Hartford
Robert H. Churchill is Associate Professor of History at the University of Hartford. He specializes in the history of the United States between the American Revolution and the Civil War, and in the history of political violence. Additional areas of expertise include the history of the Second Amendment and the contemporary militia movement.

Professor Churchill’s first book, Shaking Their Guns in the Tyrant’s Face: Libertarian Political Violence and the Origins of the Militia Movement (Ann Arbor: University of Michigan Press, 2009), compares a series of insurrectionary movements across several centuries of American history, tracing the roots of the militia movement of the 1990s back to the late eighteenth century. He is also author of “When the Slave Catchers Came to Town: Cultures of Violence along the Underground Railroad,” Journal of American History 105 (December, 2018): 514-537; “Fugitive Slave Rescues in the North: Toward a Geography of Antislavery Violence,” Ohio Valley History 14 (Summer 2014); “Gun Regulation, the Police Power, and the Right to Keep Arms in Early America: The Legal Context of the Second Amendment,” Law and History Review, 25 (Spring, 2007); “Gun Ownership in Early America: A Survey of Manuscript Militia Returns,” William and Mary Quarterly, 60 (July, 2003); “Popular Nullification, Fries’ Rebellion, and the Waning of Radical Republicanism, 1798-1801,” Pennsylvania History, 67 (Winter, 2000); and “Guns and the Politics of History: A Review of Michael A. Bellesiles, Arming America,” Reviews in American History, 29 (September, 2001).

Professor Churchill’s latest book, The Underground Railroad and the Geography of Violence in Antebellum America (New York: Cambridge University Press, 2020), tells the story of violent encounters between slave catchers, fugitives, antislavery activists, and Northern communities. It explains how these encounters shaped the operations of the Underground Railroad, contributed to sectional alienation, and ushered forth the Civil War.

Presenter: Daniel Farbman, Boston College Law School
Dan Farbman joined the Boston College Law faculty as an Assistant Professor of Law in 2017. He teaches and writes in the areas of local government law, legal history, constitutional law, the legal profession, civil rights, and property. His work focuses on the legal history of radical reform movements in public law both from an institutional perspective and from the perspective of the practice of cause lawyering.
After he graduated from Amherst College in 2001, Dan spent a few years in New York City trying (and failing) to make it as a professional actor before he enrolled at Harvard Law School. After graduating in 2007, he was a clerk for Judge Margaret Morrow on the Central District of California in Los Angeles before beginning a Skadden Fellowship at Advancement Project in Washington, D.C. At Advancement Project he worked with community organizers around the country on grassroots efforts to fight racial injustice in public education with a particular focus on the school to prison pipeline.
After leaving practice, Dan pursued a Ph.D. in American Studies at Harvard. For three years prior to joining Boston College, he was a Climenko Fellow and Lecturer on Law at Harvard Law School.