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How did Justice Abram Smith of Wisconsin challenge the Fugitive Slave Act of 1850?


Caleb O. Brown is the director of multimedia at the Cato Institute, where he has hosted the Cato Daily Podcast since 2007 and CatoAudio since 2008.

Abram Smith caught political fire as a radical Locofoco Democrat, a friend of working people and outsiders. Smith was elected to the Wisconsin Supreme Court in 1852 after he spent some time as a notable defense attorney. Let’s not forget that in 1850 the Fugitive Slave Act was revamped in order to ensure that Northerners were not a hinderance in the capture of slaves who had escaped their southern masters. In fact, Northerners were now required to return any slaves whom they knew to be fugitives. Smith, as a judge, was in utter disagreement with this act and he made that quite apparent when he nullified the Fugitive Slave Act for his state after a slave by the name of Joshua Glover was thrown into the city jail. Sherman Booth had been helping Glover maintain his freedom. Smith decided that Glover should be liberated and Booth should be cleared of any wrongdoing.

Who was Abram Smith? What was the Fugitive Slave Act and did it change during the Compromise of 1850? What did Abram Smith decide about the Fugitive Slave Act?

Further Reading:

Dunley, Ruth. “A.D. Smith: Knight‐​Errant of Radical Democracy,” (PhD Diss.). The University of Ottowa. 2008.

Abram D. Smith: Nullification, from Classics of Liberty

“From President of Canada to Governor of the People”

Music by Kai Engel

The Slave Trade and the Constitution, written by George H. Smith

There’s No Excuse for Slavery, Liberty Chronicles Episode

Why did the Southern States Secede?, written by Anthony Comegna



00:03 Anthony Comegna: When last we left Abram D. Smith, he was giving the most pro‐​Texas of speeches, waxing poetic and fantastical about the possibilities of global republicanism. He saw himself and his dreamy young American contemporaries at the leading edge of history. This was the man after all, who was the first and only president of the republic of Canada. That’s right, you might remember the name now, to this point in the show, Smith’s legacy is ambiguous. On the one hand, he’s a fascinating example of spontaneous and revolutionary Republicanism putting him on par with other complex early libertarian figures like our other friend of the show, Thomas Wilson Dorr. However, like Dorr he was a romantic nationalist, a proponent of armed revolution, which almost never turns out well. And like it or not, he was an agent of early imperialism, along with early libertarianism, but today we build his story through the 1850s when Abram Smith transformed from a romantic frontier rowdy into one of the greatest exemplars of libertarian constitutionalism in all of American history.

01:17 Anthony Comegna: In the end, we will find that Smith is best remembered as the greatest of nullifiers, the worst enemy planters had encountered since Nat Turner and one of the fugitive slaves’ strongest champions. Welcome to Liberty Chronicles, a project of lib​er​tar​i​an​ism​.org. I’m Anthony Comegna. A bit of quick review to get us going. Abram Smith was born in upstate New York in 1811 and read William Leggett as a young man. He moved west in the late 1830s to Cleveland where he was involved in local politics, he practiced law and at least tried to lead a revolution in Canada. He never saw a battle much less execution or transportation to Van Diemen’s Land like the other Americans who actually did fight it out with the British. And Smith remained an unrepentant filibuster for at least another decade when the Texas question arose in the 1844 campaign Smith joined the tide of hopeful young Americans and romantic Locofocos, who craved annexation.

02:26 Anthony Comegna: To him you might recall Texas’ entry into the union represented a grand revolution in human affairs, the peaceful extension of Republicanism by the voluntary agreement of both parties. But like so many of his fellows Smith emerged from the Mexican War apparently scarred by the experience and especially horrified by the rise of planter elites who intended to nationalize the institution of slavery. After the war, and with all that new territory on hand, American politicians and voters had to figure out what to do with it all. We’ve spent a great deal of time on the territorial question, the Wilmot Proviso that proposed banning slavery in the conquered lands. The divisions between the popular sovereignty and the Free Soil Democrats and the compromise of 1850, the one that supposedly solved the dilemma with a series of bones tossed to both sides of the debate. You’ll recall that the new key provision of the compromise was a far more powerful Fugitive Slave Act.

03:28 Anthony Comegna: Article four, Section Two, clause four of the constitution allows Congress to provide for the return of fugitive slaves. The first Act, Congress passed to give force to this clause went into effect in 1793. Thanks to the signature of George Washington. And just a few years after Washington signed the act, he faced his own prickly and interesting situation with a fugitive. Shortly after he left office, a woman slave named Ona Maria Judge, one of Martha Washington’s personal maids fled from what was then the temporary capital Philadelphia, a relatively abolitionist city, given its inordinate number of Quakers. Five decades later speaking with local reporters, Ona said she turned fugitive for two reasons: First, she simply wanted to be free and two, she knew that when the elder Washingtons died she’d become the property of their children, who Ona at least feared more than her current owners. Here is the escape story in her own words. Whilst they were packing up to go to Virginia, I was packing too.

04:31 Anthony Comegna: I didn’t know where for I knew that if I went back to Virginia, I should never get my liberty. I had friends among the colored people of Philadelphia, had my things carried there beforehand and left Washington’s house while they were eating dinner. Washington moved lightly with caution. First, he sent an agent to Portsmouth, New Hampshire, Ona’s eventual home to offer her a deal. If she would return to Mount Vernon to confront her master, he would grant her freedom. Ona, and [chuckle] this really makes me love this woman, Ona replies to the agent, “I am free now and choose to remain so.” So Washington tried the harder tactic next, he sent the same agent back to Portsmouth to attempt a forcible recovery of his slave property. The agent, one Mr. Burwell Bassett Jr. Who was also Washington’s nephew, he even dined with the former governor in an attempt to get greater force behind the president’s claim. But the governor, reportedly John Langdon a founding father who helped to ratify the Constitution made sure she was informed of Bassett’s plan.

05:34 Anthony Comegna: Ona evaded capture in hiding and before long Washington died in 1799. AS Ona said, “They never troubled me any more after he was gone. Ona used her life as a free woman, to make up for lost time as a slave to the Washington family. They had never bothered to teach her a thing of real value, and she even reported, contrary to popular belief, that Washington was a relatively faithless man, who neglected prayer in his own life, and certainly neglected his slaves’ spiritual well‐​being. In fact, she said card‐​playing and wine drinking were the business at his parties. And he had much more of such company on Sundays than on any other day. For the reporter who interviewed Ona though, her case was important, not because she was still personally at risk of re‐​enslavement, she was too old to warrant the cost of recovery.

06:23 Anthony Comegna: Rather our reporter wrote, “This woman is yet a slave. If Washington could have got her and her child, they were constitutionally his. And if Mrs. Washington’s heirs were now to lay claim to her and take her before associate Supreme Court Justice Levi Woodbury, and prove their title, Woodbury would be bound upon his oath to deliver her up to them. Again, Langdon was guilty of a moral violation of the Constitution in giving this woman notice of the agent being after her. It was frustrating the design, the intent of the Constitution and he was equally guilty morally, as those who would overthrow it.” So in walks our hero for the day, Abram D. Smith. After his time in Cleveland, Smith moved to Milwaukee, the sight of his pro‐​Texas speech we heard many episodes ago now. In Wisconsin, only just then transitioning from a territory into a state, Smith caught political fire as a radical Locofoco democrat, a friend of working people and outsiders.

07:24 Anthony Comegna: He was at least sometimes, publicly referred to as the Governor of the People and he was elected to the Wisconsin Supreme Court in 1852, after gaining notoriety as a defense attorney. When President Millard Fillmore signed the Fugitive Slave Act of 1850, the Act’s authors intended to stop the flow of slaves northward thanks to the 1793 Act’s weakness, and the northern states personal liberty laws. These statutes required jury trials for all supposed fugitives, and employed other various state powers to prevent re‐​enslavement, but after the 1850 law the national government mandated that Northerners must assist in slave catching operations, no matter what rights their states recognized for African‐​Americans. In 1852, the year Abram Smith joined the court, a slave named Joshua Glover escaped his owner and successfully made his way to Liberty in Wisconsin. He settled near Racine and lived as a fugitive for the next two years. When Federal Marshals finally tracked him down. On March 10th, 1854, officials captured and beat Glover, placing him in custody at the city jail.

08:36 Anthony Comegna: Local abolitionists alerted Sherman Booth, editor of the Milwaukee Daily Free Democrat and the same abolitionist who had helped the Amistad rebels learn English, during their own unjust stint of imprisonment. Booth led a crowd 5,000 strong in assaulting the jail on March 13th. They liberated Joshua Glover and paraded their victory around the town. Having been foiled by numbers, the slave catchers turned as they always do, to the law to extract their claims. Officials charged Sherman Booth with aiding a fugitive, arrested him and Booth appealed to the court. Our own Abram D. Smith used the opportunity to do the unthinkable. Not only did he declare Glover a free man and clear Booth of any wrong doing, Smith outright nullified the Fugitive Slave Act for his state in his capacity as an independent agent of Wisconsin’s Sovereign Citizens, a man bound by a most solemn oath to guard the rights and liberties of all under his protection. His remarks came in both written and oral form, and we give you now, his speech before the court.

09:53 Speaker 2: I am willing that the decision of the Supreme Court of the United States in every case determined by them within the scope of their jurisdiction should be regarded as full and binding authority as the law of the particular case, so determined. But when it is strenuously contended that I am compelled to adopt their interpretation of the constitution and laws of the United States and of their own powers and the powers of Congress without thought or inquiry; to take, “what is written is written” as the end of the law, simply because it is written, that my own conscience and oath must be tamely subjected to the prescriptions of another tribunal governed by the same laws and bound by the same oath not withstanding the high respect approaching even to veneration which I have for that high tribunal, I must be permitted to say that no man or body of men is made by the constitution, the keeper of my conscience, nor does it impose upon any man or body of men.

10:56 Speaker 2: The fulfillment of my official oath and obligations or the power of releasing me there from. When duty and obligation require a steady and undeviating adherence to authority and precedent, no one will be more firm and anxious in insisting upon such adherence, but when the like duty and obligation require a departure from such precedent and authority in obedience to a paramount law, the fundamental law to which each and all are equally bound, I hope to be found just as firm in my adherents to the latter. The Constitution of the United States is in its more essential and fundamental character, a tripartite instrument. The parties to it are the states, the people and the United States. The latter is indeed a resulting party brought into existence by it, but when thus created bound in all respects by its provisions. It is practically represented by its several departments deriving their power directly and severally through its respective grants. It is derivative not original.

12:06 Speaker 2: Previous to the operative vitality of the Constitution, this third party to the instrument was nonexistent, and of course, powerless. The other two parties, the states and the people were preexistent, endowed with all the essential elements of sovereignty. One great and fundamental mistake has been made in respect to the second party to the Constitution, namely the people. This party here spoken of cannot be considered as the people inhabiting the whole territory embraced within the boundaries of the original 13 states, as operating in mass as one undivided an indivisible community. Previous to the formation of the government of the United States, there was no such political existence. The people mentioned in the preamble to the Constitution and often referred to in judicial discussions, must, it seems to me, necessarily mean the people of the United States, that is the people of the several states united.

13:06 Speaker 2: So many uniting as were deemed a sufficient number to warrant the institution of the new government and render safe the delegation of certain powers before possessed by the respective states. The state government’s preexisted as the people of the respective states, did they adopt the Constitution. By the authority of the states were the people called upon to adopt or reject the Constitution. By the people of the respective states was it adopted? And when ratified by nine states not a majority of the people of the union to be formed, was it to become operative. The states as such, were distinctly recognized through every stage of progress, from the inception of the consummation of the Plan of Union and through the state organizations only could the first step be taken.

13:58 Speaker 2: And through those organizations only can the people of the union now impress their will upon the measures or action of the government. Indeed, the federal constitution provides no mode by which in any case can the people of the union affect the federal government, by through the state organizations and by the instrumentalities furnished by the governments of the respective states. The states derive not one single attribute of power or sovereignty from the Constitution of the United States on their separation from Great Britain. They were each sovereign and independent as completely so as the government from which they had revolted. They retain all the attributes of sovereignty which they have not delegated or relinquished, nor does the Constitution address itself in a single instance to the people of the whole Union as one indivisible community, but always to the people or to the constituted authorities of the respective states.

15:01 Speaker 2: But the new entity brought into existence by the Constitution does derive every jot and tittle of its power from that instrument. Without it the state existed and performed all the functions of government. Without it the federal government had not a shadow of existence. If that instrument ceased to operate the states would move on performing their present functions, and probably resuming the powers before delegated. But the government of the union would cease altogether.

15:35 Anthony Comegna: Smith’s nullifying fury came from a life of Locofocoism, revolutionary radicalism and a deep conviction that beneath all of the political structures, only individuals are truly sovereign. And even then we are each sovereign over ourselves. To him the Constitution was a bargain between the American people about how to govern themselves altogether. At no point did the new entity created in the convention supersede the rights of its prior parties; the states and the people. Individual rights were always supreme. Those were the laws of nature herself, and states rights arose directly from the powers sovereign citizens delegated and not a jot more. Meanwhile, justices like himself existed specifically to intercede between the people of a state and the national government, along with more basic duties at the state level.

16:35 Anthony Comegna: He was a justice of the State Supreme Court and ultimately it was his personal duty to make sure that the laws of Wisconsin were carried into effect, according to the terms of justice, to protect the citizens and their rights statewide. And if necessary, to strike down national laws that would violate those rights within his state, and strike them down he did. So let’s continue listening.

17:05 Speaker 2: I make these remarks because persons in their zeal for federal supremacy seem to have lost sight of the true relations subsisting between the Confederacy and its members. The rights and sovereignty of the latter would seem to be sacrificed to the exaltation and glory of the former. But returning to elementary principles it will not be difficult to determine the just rights and limitations of both. Test the third clause of the second section of the fourth article of the Constitution by this rule, “No person held to service or labor 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 labor that shall be delivered upon claim of the party to whom such service or labor may be due.” What power or authority did the states relinquish by this clause? At most, the right and power if you will, to enact any law or regulation by which such escaping fugitive shall be discharged from such service or labor.

18:18 Speaker 2: They also covenanted that the fugitive should be delivered up. But did they delegate to the federal government the right to enter their territory and seize him? Did they authorize that government to organize a police establishment, either permanently or temporarily armed or unarmed to invade their territory at will, in search of fugitives from labor ranging throughout their whole extent subject to no state law but enjoying a defiant immunity from all state authority or process while executing their mission? Did the States relinquished the rights or power to prescribe the mode by which they would execute their own solemn compact in delivering up the fugitive? Every just regard to dignity and self respect on the part of the states forbids it. Every sentiment of delicacy, not to say justice on the part of the National functionaries should revolt at it. In Virginia he may be indeed a chattel but in Wisconsin, he is a man.

19:22 Speaker 2: The laws of Virginia make him a chattel there, but the constitution of the United States and the laws of Wisconsin regard him as a person here. Under the Constitution, the fugitive leaves the attribute of the chattel behind him in the state from which he flees and goes forth as a person. The law which makes him property in Virginia, does not go with him beyond the limits of that state. On his escape from such limits, he ceases to be property, but as a person liable to be reclaimed. The person may escape, but the property cannot. The states are no more bound to recognize the fugitive slave as property than a fugitive apprentice as property. The relation of master and servant is recognized, so far, and so far only, as the obligation of service is implied from such relation. Even such obligation is not recognized as full, complete, present and operative, but as attaching to that relation in another state.

20:25 Speaker 2: So much of the law of the state from which he fled as required of him service to his master there, is to be regarded and from that obligation of service imposed by that law, the state may not discharge him. The law of Virginia which requires of this slave service to his master is recognized as the law there, not here. We may not discharge a fugitive from the service, which by law, he owes in Virginia, but by that law, he owes no service here. The master may capture him in Wisconsin, we must deliver him up to his master on the establishment of his claim. But his master has no right to command his service in Wisconsin. He must not beat him. He may take him back to Virginia, but he cannot command his service here. When he gets to Virginia he will owe service by the law of that state, but not till then. By the law of that state he owes the service, and by that law only. That is the law of Virginia, but not the law of Wisconsin.

21:33 Speaker 2: If the master demand service here of his fugitive and beat him for disobedience, he is punishable by our laws. Nor could the master having captured the fugitive in this state sell or hire him to another. He is just the control over him requisite to his extradition, and no more. If the free states are bound by the fugitive slave clause of the Constitution to recognize the full and complete rights in the owner of the Fugitive slave as property to the same extent as they were recognized in the state from which he escaped, then it will soon be claimed that the free states may be made a highway for slaveholders traveling with their slaves. A thoroughfare for internal slave traders over which to transport their living chattels from state to state, and state sovereignty itself must succumb to the slave-holder’s authority.

22:29 Speaker 2: The simple answer to this that the Constitution does not guarantee the right, it guarantees no right. No power is granted in the Constitution to the federal government to enforce or guarantee any right in regard to fugitive slaves or any other slaves. Every day’s experience ought to satisfy all that the states will never quietly submit to be disrobed of their sovereignty, submit to the humiliation of having the execution of this compact forced upon them or rather taken out of their hands by National functionaries. And that too on the avowed ground that they are so utterly wanting in integrity and good faith that it can be executed in no other way. On the contrary, if the federal government would abstain from interference, the states would adequately fulfill all their duties in the premises, and peace and order would be restored.

23:27 Speaker 2: That they will never consent that a slave owner, his agent or an officer of the United States, armed with process to arrest a fugitive from service is clothed with entire immunity from state authority. To commit whatever crime or outrage against the laws of the state that their own high prerogative writ of habeas corpus shall be annulled, their authority defied, their officers resisted, the process of their own courts treated with contempt, their territory invaded by federal force, the houses of their citizens searched, the sanctuary of their homes invaded, their streets and public places made the scene of tumultuous and armed violence, and state sovereignty succumb; paralyzed and aghast before the process of an officer unknown to the Constitution and irresponsible to its sanctions.

24:29 Anthony Comegna: After his decision, Smith rocketed to political stardom in Wisconsin, and some papers even floated his name as a possible veep candidate for Lincoln in 1860, but tragedy and scandal had him in a vice grip. Tragedy when Chief Justice Roger Taney and a unanimous court overruled Smith’s decision in Ableman V. Booth, 1859. And scandal when Smith was accused of accepting $10,000 in bribes from a railroad. He did admit to taking the bonds, but he said it never impacted his decision making. Democratic support for Smith dropped precipitously in 1859, and he became a man without a party; once again returned to private life. And unfortunately for now, that is where we will have to leave the story, but I think you’ll agree with me that Abram D. Smith is an early libertarian worth remembering.

25:23 Anthony Comegna: We are generally speaking, great proponents of state nullification. And many of us today are well aware that this political tactic was used far more often in defence of individual liberty than it was to protect slave‐​holding interests. From the beginning, slavery has depended entirely on the state in virtually every respect, and Smith’s purpose was to stand directly in the way, obstruct the state’s vision, deflect it’s grasp and leave the fugitive slave a free man with rights and privileges recognized by the people of Wisconsin. So it’s high time we elevate this man to a position of renown and respect in libertarian history. Abram Smith, the greatest of nullifiers.

26:19 Anthony Comegna: Liberty Chronicles is a project of lib​er​tar​i​an​ism​.org. It is produced by Tess Terrible. If you’ve enjoyed this episode of Liberty Chronicles, please rate, review and subscribe to us on iTunes. For more information on Liberty Chronicles, visit lib​er​tar​i​an​ism​.org.