Learning from History: Resistance in the 1850s and Today
by Jay Moore
April 12, 2017
History never really repeats itself, either as tragedy or farce or something else entirely. Trump may well be both a narcissistic and megalomaniacal fool and a tragedy for the U.S. and the planet. But, although there are some resemblances, he is not a reborn Mussolini or Hitler or some other fascistic demagogue from the past. That said, one compelling reason to study what happened in the past is to see if there might actually be any similar or parallel situations that might be useful to us activists today. A number of recent news commentaries have noted the strong similarities between what happened in the 1850s when the country was heavily divided around the issue of slavery and experiencing a great deal of Northern resistance to the Fugitive Slave Act and what’s happening now between Blue and Red states with resistance to the Trump regime’s racist Executive Orders on immigrants and refugees. It is hoped that a closer study of the resistance narratives and the “repertoire of protest” from that earlier time period will be worthwhile in providing us with inspiration for actions today in coming to the aid of our undocumented brothers and sisters who are under the most immediate threat from the reactionary federal government as fugitive slaves were then. That struggle was eventually won. We can win, too.
Let’s turn back the clock for now to the early morning of September 11, 1851 when a group of seven armed white men stealthily approached a small rented farmhouse on a quiet country road in Lancaster County, Pennsylvania. Acting on a tip, they were looking to catch and return into slavery four young black men who had stolen away from Edward Gorsuch’s Maryland plantation two years earlier and crossed the Mason-Dixon Line to live in a free state. Following the procedures of the newly-passed Fugitive Slave Act, the slave owner had secured the appropriate paperwork making his actions legal and had been able to enlist a deputy U.S. marshal and two policemen from Philadelphia to aid in the operation. They hoped for an easy success. Nevertheless, the word had already spread among African-Americans who had organized an area-wide vigilance network that slave-catchers were on their way. The five men and two women in the house were likewise armed, and they refused an order to surrender Gorsuch’s slaves. Summoned by the loud blowing of a horn from a window on the house’s upper story, a large number of supporters appeared on the scene hastening from around the neighborhood. Many came armed with guns, clubs, and farming tools like corn-cutting knives. Now greatly outnumbered by a large and angry group determined to prevent anyone from being returned into slavery, the marshal decided that the posse should withdraw for its own safety. The Maryland plantation owner, however, was not to be thwarted and robbed, as he saw it, of his human property. Spotting one of his ex-slaves, Gorsuch walked over to demand that he give himself up. Instead, the self-emancipated slave who had tasted freedom knocked his former master to the ground. Then shooting jumped off with the plantation owner left dead and his son badly wounded. The rest of the posse fled while hotly pursued by the mob.
The leader of the “Christiana Riot,” 30-year-old William Parker who had been organizing for just such an eventuality if slave-catchers came to look for them, quickly exited from the area accompanied by two others who also feared being taken up. Traveling north, they reached Rochester, New York within a few days from which, with the help of Frederick Douglass – himself a self-emancipated Maryland slave – they were able to reach safety in Canada. As Parker boarded the ship to cross Lake Ontario, he presented Douglass as a memento of the battle they had fought for liberty a pistol that had fallen from the hands of Edward Gorsuch. Parker’s wife and children were eventually able to join him in Canada. They settled in Buxton, Ontario – a settlement former by a reformed U.S. slave owner for ex- slaves. Parker learned to read and write and became a correspondent for Douglass’s North Star newspaper.
Parker and the others who had courageously resisted the slave-catchers at Christiana became heroes to many northern blacks and to radical abolitionists. Ohio’s abolitionist Congressman Joshua R. Giddings gave a fiery speech in which he praised the resisters for having “stood up manfully in defense of their God-given rights and shot down the miscreants, who had come with the desperate purposes of taking them again to the land of slavery,” Meanwhile, spokesmen and apologists for the Southern slaveocracy and their Northern collaborators screamed bloody murder. In Lancaster County which was home to many Quakers who had long been opposed to slavery on moral grounds, a reign of terror took place as the federal and state authorities seized anybody whom they thought might possibly have had some criminal involvement. A total of 35 black men plus three white men who were Quakers were indicted and imprisoned awaiting trial. Under pressure from President Filmore and his Attorney General (both Northerners) to discourage any further rescue efforts and to placate the South, they were charged with levying war against the government – treason – which carried the death penalty. The first to be tried was a white miller, Castner Hanway, who as a bystander had refused a request from the slave-catchers to come to their aid and had suggested they leave to prevent violence. Ironically, his trial was held at Independence Hall in Philadelphia where the Founding Fathers had debated liberty and independence from Britain. Abolitionists mobilized a star defense team for Hanway that included Thaddeus Stevens, radical congressman from Lancaster County who would go on to become one of the biggest scourges of the southern slaveholders throughout the Civil War and Reconstruction. Donations to support the black and white defendants came from as far away as California, and Lucretia Mott and other Quaker women packed the courtroom to show their support. It took only 15 minutes for the jury to return an innocent verdict. The treason charges against all the other defendants were dropped, and a grand jury sitting in Lancaster declined to bring charges of murder and riot against anyone. In the only other related trial, a free black man accused of tipping off the “rioters” to the slave-catchers’ approach was also acquitted.
The Fugitive Slave Act had been demanded by the Southern states for them to stay in the Union as part of a legislative compromise package in 1850 admitting California to the Union as a free state, making the future status of the new western territories of Utah and New Mexico – whether they were to be free or slave – subject to the principle of popular sovereignty, and abolishing the slave trade in the District of Columbia. The background of the Compromise of 1850 was a North-South political crisis over the territories newly-acquired from the 1845 annexation of Texas and taken from Mexico in the 1846-48 war fought against that country to expand slavery. The Fugitive Slave Law was intended to expedite the return of fugitive slaves to their masters who were not being returned by northern states under the original Fugitive Slave Act of 1793. The new law had many odious features. The accused, who might be a free person of color living in the North, was not allowed to testify on his or her own behalf or to cross-examine witnesses against them, and the decision made by the federal commissioner in charge of the hearing could not be appealed. Moreover, the commissioner received a fee of $10 for each person remanded into slavery and $5 for each person freed. Those members of the public who aided escaped slaves or any law enforcement officers who failed to do their duty under the law could be prosecuted, jailed and fined. Neutrality was impossible. Bystanders like Hanway at Christiana could be prosecuted if they did not help when asked to assist those who said they were trying to apprehend a fugitive slave.
Not every instance of resistance to the Fugitive Slave Act had a similarly happy conclusion for those involved on the right side of history. Self-emancipated slaves were caught in the North and returned into slavery – an estimated several hundred under the Act during the 1850s — and not all of their black and white supporters were pronounced innocent of lawbreaking by sympathetic juries. Those willing to take the risk of jail time and fines in the name of a higher moral law continued to be a small minority of Northern society. Urban businessmen with economic connections to the South held mass meetings of their own welcoming the law, some ministers gave sermons urging that it be obeyed and many if not all northern newspapers editorialized in its favor. The argument put forward was the usual one that the failure to abide by any law, however unjust it might be, would lead inevitably to social breakdown and anarchy and that any changes should be sought through democratic elections for representatives and established legislative procedures (which was a very remote possibility indeed given that the South and its Northern collaborators dominated the federal government throughout the antebellum period until the congressional and presidential Republican victories in 1860). However, as resistance mounted, the law became widely unenforceable in many parts of the North, where it was regarded not only as supporting an immoral institution in the South but also as violating rights constitutionally-guaranteed for everyone.
Resistance took a wide variety of forms. The direct fightback was led by free persons of color living in long-established communities in northern cities and self-emancipated slaves who had the most to lose using black churches as organizing centers. Vigilance committees that already existed in some places watched out for slave catchers and, if spotted, mobbed them and chased them out of town. New York’s black community mobilized in late September 1850 when, scarcely a week after the Fugitive Slave Act had gone into effect, James Hamlet a store porter in the city who lived in Brooklyn with his wife and three children was grabbed off the street and, after a brief hearing before a commissioner, taken away to Baltimore for sale to the Deep South. (Hamlet’s mother had been a free woman which meant that he himself was free, but he was not allowed to testify to that fact because of the terms of the Act.) Over 1,500 persons packed a mass meeting at the Mother AME Zion Church where speakers denounced the kidnapping and the crowd raised the $800 needed to purchase Hamlet’s freedom. One of the speakers was William Powell, a seaman and proprietor of the Colored Sailors’ Home where fugitives were often hidden. He argued to loud cheers that the new law was a “covenant with death and an agreement with hell [that] must be trampled underfoot, resisted, disobeyed and violated at all hazards” An even larger crowd of both blacks and whites gathered in New York’s City Hall Park several days later to welcome Hamlet upon his return. New York’s mayor addressed the crowd and promised that the police would not help catch fugitives. These and other early actions of resistance in New York to the Fugitive Slave Act were guided by a clandestine Committee of Thirteen comprised of leaders of the black community.
Throughout the 1850s, thousands of fearful African-Americans fled to Canada — an estimated fifteen to twenty thousand additional refugees including several hundred waiters from Pittsburgh’s hotels which made it hard for them to operate. New York’s black community, the largest in the North, lost over 2,000 residents. Notwithstanding these losses, many African-Americans were determined to defend their liberty in their northern U.S. home or to die trying, and they commonly armed themselves for that purpose. The large crowd that turned out for a mass meeting held at Boston’s African Meeting House shortly after the law went into effect passed a resolution urging their fellow community members not to flee but to stay in Boston and resist. In New York, Boston, Pittsburgh and a number of other northern cities, uniformed black militia companies formed and drilled under arms – some of them indicating their continuing loyalty to the land of their birth “regardless of its iniquities” by taking on the name of the early black martyr of the American Revolution, Crispus Attucks, who fell in the Boston Massacre.
Some 80 attempts were made during the decade to release people from the hands of the slave-catchers and help them to freedom. Another confrontation with slave-catchers and federal authorities trying to enforce the Act occurred in Detroit in early October 1850. Hundreds of armed blacks, including some who had crossed over the river from Canada, mobilized when Giles Rose, a laborer on the farm of the former Michigan governor, was arrested and jailed by slave-catchers claiming that he was a fugitive “held to service and labor” in Tennessee. The intense popular indignation against enforcement of the law kept Rose from being taken away to the South following the summary hearing held in front of the federal commissioner (who argued that the law prevented him from looking at any rebutting evidence that Rose was a freeman who had been manumitted and had the papers to prove it). Money was raised to satisfy the demands of the slave-catchers, who narrowly avoided a beating before departing the city.
Mass meetings were held throughout the North including town meetings, the basic institution of self-government in New England which had been used to arouse resistance to British tyranny during the American Revolution, that passed resolutions denouncing the Fugitive Slave Act. A resolution from a meeting in Dedham, Massachusetts branded it as “anti-Christian” and recommended treating anyone defending or counseling obedience to the law as a “moral leper” making them unfit for any position of public trust. Prominent northern intellectuals and literary figures Ralph Waldo Emerson, William Cullen Bryant, and others joined their voices to the calls for noncompliance with the law regardless of the possible consequences to themselves in jailing and fines. Rev. Charles Beecher, the brother of Harriet Beecher Stowe, urged his congregation in Newark, New Jersey to “Disobey this law. . . If you have ever dreamed of obeying it, repent before God and ask his forgiveness.” During the 1830s and 40s, anti-slavery activists had tirelessly flooded Congress with thousands of signatures on petitions for such partial objectives as ending the slave trade in the District of Columbia and preventing slavery’s expansion into the western territories. Now they circulated thousands more petitions, including ones that could be clipped out of an anti-slavery newspaper, for repeal of the Fugitive Slave Act. Sixteen hundred people signed a pledge circulated by the American and Foreign Anti-Slavery Society not to obey a patently unjust law. Quakers and other non-resisters who recoiled from the use of violence even in self-defense defied the law by helping to hide and transport fugitives on the Underground Railroad until they reached safety in Canada. Even more courageously, Harriet Tubman took the struggle to the enemy by making repeated forays below the Mason-Dixon Line to lead slaves northward to freedom.
Boston was a hotbed of anti-slavery sentiment, and Southerners with their Northern collaborators were determined to see the new law enforced there. Activists were equally determined to prevent that from happening. Their opportunity came in February 1851 when Shadrach Minkins who had escaped from slavery in Virginia was taken prisoner by slavecatchers posing as customers as he was serving breakfast in the Boston coffee house where he worked as a waiter. The Boston lawyer Richard Henry Dana, Jr., best remembered today for his youthful autobiographical adventure story, Two Years Before the Mast, volunteered his services and tried to obtain a writ of habeus corpus on Minkins’s behalf from the Chief Justice of the state’s Supreme Court. When that effort came to naught, black rescuers from the League of Freedom led by Lewis Hayden (who had fled slavery in Kentucky with his family in 1844) joined by other rescuers from the mostly-white Committee of Vigilance and Safety burst into the court house where Minkins was being held and carried him outside. After being concealed in an attic by the black community on Beacon Hill, Minkins was helped to get away overland to Montreal. Theodore Parker, a leader of the Boston Vigilance Committee and whose grandfather had been the captain of the local militia that had exchanged fire with the British redcoats on Lexington Green at the start the American Revolution in April 1775, observed in his diary that the rescue of Minkins was the “most noble deed” to have taken place in the city since the famous dumping of the British tea in Boston harbor in 1773.
Anti-slavery activists were divided into a number of different, sometimes competing groups. Those influenced by Boston-based William Lloyd Garrison, editor of the Liberator which since the 1830s had been putting forward an uncompromising demand for the immediate abolition of slavery, believed the U. S. political system was irredeemably pro-slavery and that moral suasion was the solution. Others such as the wealthy upstate New York landowner Gerrit Smith believed in the need to contest slavery in the existing political arena and had founded the Liberty Party in 1840 and joined the Free Soil Party in the 1850s. However, some white abolitionists concluded that only direct action could save fugitives from being grabbed off the street, given no more than a perfunctory hearing, and returned into bondage. In January 1851, the wool merchant John Brown with black friends and acquaintances organized a meeting in Springfield, Massachusetts – which was a major hub of the Underground Railroad – to form the United League of the Gileadites. A secret armed group which included both men and women, it vowed to defend fugitives to the death if necessary. (The name referred to the Biblical story of Gideon who had assembled a small select band at Mount Gilead to fight for the freedom of the Israelites.) The members of the League held a variety of working class occupations, and many belonged to the black Zion Methodist Church that Brown also attended. In 1854, when the black community and their white supporters feared that slave-catchers were on their way to Springfield, the League stationed watchers “armed to the teeth” on street corners and prepared boiling pots of lye to throw on any who might dare to show up. The word was out, and no fugitive slave was ever seized in Springfield. In Boston during this same time period, the Unitarian minister Theodore Parker, who would later provide behind-the-scenes support to John Brown’s raid on the federal arsenal at Harper’s Ferry, Virginia in a bold attempt to spark a southern slave insurrection, told his congregation that he would do everything in his power to rescue fugitive slaves. Parker kept a loaded pistol in a drawer of the office desk on which he wrote his Sunday sermons in case slave-catchers showed up in search of the several hundred fugitives belonging to his own congregation. When Parker married two self-emancipated persons whom he had helped to protect before they sailed for safety in England, he gave them as wedding gifts a sword and a Bible.
In April 1851, Boston restaurant waiter Thomas Sims was seized and remanded to Georgia before anti-slavery activists could make an attempt to save him as they had with Minkins. The federal court house this time around had been wrapped in a chain to obstruct a rescue and guarded by dozens of armed police. Back in Georgia, Sims was publicly whipped and then sold to a Mississippi slave owner from whom he managed to escape during the Civil War and return to Boston. (The demand for slave labor on the burgeoning cotton plantations of the Deep South drove attempts to seize even free northern blacks.) Sims then became a recruiter for other blacks to join the Union Army to fight against slavery.
Activists were determined not to let the same thing happen to clothing store worker Anthony Burns who fell victim to southern slave-catchers in May 1854. To prevent Burns from being returned into slavery, a multi-racial crowd led by the Rev. Thomas Wentworth Higginson emerged from a large protest meeting and tried to break into the court house where Burns was being held and guarded by street thugs deputized by the federal marshal. This effort failed, although one thug was stabbed in the melee. Even so, Burns could only be taken to the ship to be returned into slavery while guarded by U.S. Marines and a company of artillery with a loaded cannon. Thousands watched, hissed and shouted “shame.” Many of the buildings on the route from the court house to the wharf were draped with black in mourning. Resistance did make a difference. Being able to secure the return of Burns to his master in Virginia had cost the U.S. government $100,000. After that, no other person was seized as a fugitive slave in Boston or anywhere in New England. Money was raised by a black congregation in Boston to purchase Burns’s freedom. Once back North, Burns attended Oberlin College and became a minister.
The Fugitive Slave Act also proved a dead letter in Chicago where black residents formed overnight street patrols throughout the city to provide an early warning system if slave-catchers dared to show their faces. Illinois already had a well-developed anti-slavery movement and an Underground Railroad system with Chicago as one of its terminuses which had been assisting fugitive slaves since the 1830s. When some slave-catchers did appear, they left hurriedly after being told that they might be tarred-and-feathered. Chicago’s city fathers in the Common Council passed a bold resolution against the new law:
Whereas, the Fugitive Slave Act recently passed by Congress is revolting to our moral sense and an outrage upon our feelings of justice and humanity, because it disregards all the securities which the Constitution and laws have thrown around personal liberty, and its direct tendency is to alienate the people from their love and reverence for the Government and institutions of our country; therefore,
Resolved, That as the Supreme Court of the United States has solemnly adjudged that State officers are under no obligations to fulfill duties imposed upon them as such officers by an Act of Congress, we do not, therefore, consider it our duty, or the duty of the city officers of the City of Chicago, to aid or assist in the arrest of fugitives from oppression; and by withholding such aid or assistance we do not believe that our harbor appropriations will be withheld, our railroads injured, our commerce destroyed, or that treason would be committed against the Government.
When Illinois Senator Stephen A. Douglas tried to defend the Act at a public meeting in Chicago and impugned the Council’s resolutions, he was roundly booed. U.S. Secretary of State Daniel Webster, a northerner like Douglas who hoped to become President by appeasing the South, came to Syracuse in May 1851 where he proclaimed the Fugitive Slave Law would be enforced even in that abolitionist city whenever the next anti-slavery convention took place there. Taking up Webster’s arrogant challenge, the Liberty Party’s New York state convention that was meeting at Syracuse in October, after receiving an alarm from the local Vigilance Committee, proceeded to the courthouse where they rescued William “Jerry” Henry who had been taken while working at a barrel-making shop, hid him and then helped him to escape to Canada. The Liberty Party then threw this defiant resolution back in Webster’s face:
WHEREAS, Daniel Webster, That base and infamous enemy of the human race, did in a speech of which he delivered himself, in Syracuse last Spring, exultingly and insultingly predict that fugitive slaves would yet be taken away from Syracuse and even from anti-slavery conventions in Syracuse, and whereas the attempt to fulfill this prediction was delayed until the first day of October, 1851, when the Liberty party of the State of New York were holding their annual convention in Syracuse; and whereas the attempt was defeated by the mighty uprising of 2,500 brave men, before whom the half-dozen kidnappers were ‘as tow’, therefore,
Resolved, That we rejoice that the City of Syracuse- the anti-slavery city of Syracuse- the city of anti-slavery conventions, our beloved and glorious city of Syracuse- still remains undisgraced by the fulfillment of the satanic prediction of the satanic Daniel Webster.
Webster, who had previously been counted on as a major politician who would speak out against slavery, was widely excoriated in the North as a traitor to the cause. Whittier wrote a bitter poem denominating him an “Ichabod”: “So fallen! so lost! the light withdrawn /Which once he wore!/ The glory from his gray hairs gone/ Forevermore!” The biggest blow to Webster may have come when a town meeting in his own hometown of Marshfield, Massachusetts overwhelmingly passed a set of angry resolutions decrying the Fugitive Slave Act as “morally repugnant” and counter to true American values. Invoking Patrick Henry’s revolutionary cry of “Give me Liberty or Give me Death,” the resolutions called upon townspeople to follow the Golden Rule and throw open their house doors to welcome hunted fugitives. Other national office holders including the set of Northern Presidents during the 1850s, Fillmore, Pierce and Buchanan, who went along with the South or who tried have it both ways were commonly derogated as “doughfaces” and “hunkers.”
Probably the most radical and militant statement of all against the Fugitive Slave Act was made by Frederick Douglass speaking to the National Free Soil Convention held in Pittsburgh in August 1852. He advised his listeners that “nothing is to be gained by a timid policy. The more closely we adhere to principle, the more certainly will we command respect.” Douglass did not mince words about what might need to be done to resist the law, although what he said was shocking to some in the audience:
The only way to make the Fugitive Slave Law a dead letter is to make half a dozen or more dead kidnappers. A half dozen more dead kidnappers carried down South would cool the ardor of Southern gentlemen, and keep their rapacity in check. That is perfectly right as long as the colored man has no protection. The colored men’s rights are less than those of a jackass. No man can take away a jackass without submitting the matter to twelve men in any part of this country. A black man may be carried away without any reference to a jury. It is only necessary to claim him, and that some villain should swear to his identity. There is more protection there for a horse, for a donkey, or anything, rather than a colored man—who is, therefore, justified in the eye of God, in maintaining his right with his arm. The man who takes the office of a bloodhound ought to be treated as a bloodhound; and I believe that the lines of eternal justice are sometimes so obliterated by a course of long continued oppression that it is necessary to revive them by deepening their traces with the blood of a tyrant.
Direct actions to stop the slave-catchers were matched by resolute efforts on the legal front. Lawyers stepped forward to file writs of habeus corpus on behalf of fugitive slaves and suits challenging the constitutionality of the Act. Richard Henry Dana, Jr. who represented Shadrack Minkins and Anthony Burns said later that he regarded his defense of fugitive slaves as the “one great act” of his life. Some Northern states tried to use their own state laws to thwart the Slave Power that was currently in control of the government in Washington. Massachusetts, Vermont, Connecticut, New Hampshire, Rhode Island, and Pennsylvania already had laws on their books from the 1840s when northern anti-slavery sentiments had first grown stronger – laws that prohibited state officers from aiding in the recapture of fugitives and forbidding the use of state jails to hold them. In the aftermath of the Fugitive Slave Law, Vermont (which had been the first state to abolish slavery in 1777) enacted a new Personal Liberty Law extending to fugitive slaves in their state the basic constitutional rights of habeus corpus and a trial by jury along with financial coverage for a defense lawyer and any legal fees. In response to the popular furor from the passage of the Kansas-Nebraska Act opening territories to slavery that were supposed to have been closed to it by the Missouri Compromise of 1820, other northern and midwestern legislatures quickly passed new Personal Liberty Laws of their own. Massachusetts’s new law went the furthest in challenging federal authority by empowering its state judges to issue writs of habeus corpus releasing accused fugitive slaves from federal custody and transferring their cases to hearings in friendlier state courts. Meanwhile, the Southern slaveocracy, showing that their vocal advocacy of States Rights was not a matter of political principle but only applied when it was of benefit to themselves, railed against these laws. Southern fire-eaters threatened even more loudly to secede from the Union if their property rights in human flesh were not protected by stronger federal enforcement of the Fugitive Slave Act. To further agitate opposition to the Act and against slavery in general in state legislatures and the court of public opinion, Wendell Philips, William Lloyd Garrison and other northern abolitionists responded by circulating petitions and giving speeches urging that even stronger Personal Liberty Laws be passed.
The most consequential episode of legal resistance to the Fugitive Slave Act – a case that ran for seven years in the courts – involved an outspoken Milwaukee abolitionist newspaper editor, Sherman Booth (who also became one of the founders of the Republican Party when the GOP was on the progressive side of history). In March 1854, Joshua Glover, a self-emancipated slave from Missouri who was working as a mill hand, was seized in his home while playing cards with friends at his home in Racine, Wisconsin. After being beaten by slave-catchers who included his former master and a federal marshal, Glover was taken to the county jail in Milwaukee. Upon receiving word by telegraph of what had happened in Racine and that Glover was now under detention in Milwaukee, Booth printed handbills and rode through the streets on his horse like Paul Revere urging “Freemen, to the rescue!” No fewer than five thousand people, including 100 people who had come by steamboat from Racine, responded by gathering outside the jail. After an effort to adhere to the legal route with a writ of habeus corpus to secure Glover’s freedom proved fruitless, some members of the crowd but not Booth himself employed pickaxes and a heavy timber that was used as a battering ram to break down the jail door. Glover was spirited away on the Underground Railroad and gotten away safely to Canada. A few days later, Booth and another vocal anti-slavery activist, John Rycraft, were arrested and brought up on federal charges for violating the Fugitive Slave Act through aiding and abetting in Glover’s escape. Booth was defiant, declaring that his only regret was not having taken a more direct part in the jailbreak and, moreover, that rather than see any fugitives returned from Wisconsin into slavery, he would see every federal officer in the state tarred-and-feathered or hanged. “If the time has come when we are called on to yield these sacred rights [of habeus corpus and trial by jury], then the time has come for revolution.”
Now the struggle moved to the courts and gained a national audience. Booth’s lawyer appealed to the Wisconsin Supreme Court arguing that the Fugitive Slave Act was unconstitutional because it did not provide for due process and a trial by jury for the accused fugitives and asserted that the states had the obligation to intercede to ensure civil liberties for their citizens if the federal government undermined them. The precedents he invoked were the Virginia and Kentucky Resolutions authored by Jefferson and Madison to nullify the Adams administration’s repressive Alien and Sedition Acts in the 1790s. In what was hailed as a great victory for the anti-slavery cause, the Wisconsin Supreme Court concurred. It declared the Fugitive Slave Act unconstitutional and issued a writ of habeus corpus freeing Booth. However, the federal District Court had the men arrested again, and they were tried and convicted the following January with Booth being sentenced to a month in jail and ordered to pay a $1000 fine plus costs with Rycraft being inflicted with somewhat lesser penalties. Once more, the Wisconsin Supreme Court intervened by issuing a writ of habeus corpus and overturned the convictions. More legal wrangling ensued between federal and state authorities with Booth using every opportunity with the focus on his case to raise not only the constitutional arguments but also the broader moral arguments against slavery. At one point, Booth himself was broken out of federal detention by a rescue operation. When the federal authorities tried to put a lien on Booth’s printing equipment to pay his fine, the Wisconsin legislature passed a bill which ordered that no liens under the Fugitive Slave Act would be executable in the state and those being prosecuted in this way could take their cases to state court.
In 1859, just prior to the outbreak of the Civil War, the same southern-dominated U.S. Supreme Court that had issued the notorious Dred Scott Decision in 1857 declaring that people of color were not U.S. citizens regardless of their status, overruled Wisconsin’s Supreme Court ruling in the case of Abelman v. Booth. In affirming federal court supremacy, it ruled specifically that writs of habeus corpus could not be used to remove cases under the Fugitive Slave Act from federal courts to state courts. (To end the long legal saga, Booth himself received a pardon from outgoing President Buchanan in early 1861.) Nevertheless, the Wisconsin court’s actions combined with other actions in the legal arena and in the streets helped to sharpen the contradictions between right and wrong that led to Southern secession, the outbreak of the Civil War and, as a consequence, the ending of slavery. The Fugitive Slave Act, which by that time had little or no utility after what W.E.B. DuBois described as a General Strike of the slaves occurred in the South, their flight en masse to Union lines seeking their freedom, and the Emancipation Proclamation which Lincoln declared in response to their actions, was repealed by Congress in 1864.
Let’s come back now to the present-day situation. What can we learn from this history? In a striking parallel with the 1850s, some states like California and cities and municipalities like San Francisco and New York have tried to interpose themselves and protect their residents by declaring themselves as sanctuaries and by commanding that their employees and police department not cooperate with the Feds in the detention of the undocumented. Town meetings in Vermont like mine here in Marshfield with its 1,588 residents passed resolutions during the annual first Tuesday-in-March meetings declaring themselves sanctuary towns. The federal kidnappers have been stepping up their activities waylaying immigrants when they responded to orders to show up at local courts or offices for some run-of-the-mill matter. While we have not yet seen any forcible rescues of victims from the dirty hands of federal kidnappers, activists have put their bodies in front of vehicles to try to prevent ICE agents from hauling people away. ICE should be made to worry that things might well escalate further unless they lay off. Every ICE outrage should be used to speak out like our anti-slavery forebearers and call for resistance.
Certainly, one thing for us to emulate would be to establish our own clandestine Vigilance Committees that could watch out for ICE and make them persona non grata in immigrant communities and rally the kinds of rapid responses — now making use of social media — that we have already seen at the airports with Trump’s Executive Order in January. Safe houses could be established for those persons who might need hiding from the authorities. Churches could again serve the sanctuary role as they did in sheltering refugees from Central America during the 1980s. ACLU lawyers with a conscience will no doubt continue to challenge the constitutionality of the Executive Orders as their counterparts did with the Fugitive Slave Act in the 1850s. On the national level, things are once again in political motion. Under pressure around the slavery issue, one of the two main political parties, the Whigs, fell apart in the 1850s and out of its wreckage emerged a more progressive party that took power in 1861 and made major reforms. The Democratic Party, then a reactionary party, split into Northern and Southern wings.
Whether the present situation can be resolved short of a full-scale Civil War leading to a revolutionary transformation of political, economic, social and cultural relations in this country, only time will tell . . .
Jay Moore is a radical historian who lives and teaches (when he can find the work) in rural Vermont.