The Tenth Amendment Center

By TJ Martinell

29 June 2015

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Critics of nullification are fond of bringing up the Nullification Crisis of 1832 involving John C. Calhoun’s misguided and warped interpretation of what the doctrine meant as advocated by James Madison and Thomas Jefferson.

Many, however, are unfamiliar with another nullification crisis involving – gasp! – not one of those wicked Southern states, but the dye-in-the-wool New England state of Vermont, which drew the ire of President Millard Filmore and actually brought the threat of military intervention.

The crisis is described by Horace K. Houston Jr., a Ph. D. student in history at the University of Memphis, in a paper appropriately titled “Another Nullification Crisis: Vermont’s 1850 Habeas Corpus Law.”

So just what dastardly thing were the people of Vermont trying to do that would cause such outrage by the federal government?

The issue, Houston writes, concerned the much-hated Fugitive Slave Act of 1850. The law, passed as part of the famous Compromise of 1850, required that all citizens, North or South, assist federal marshals in finding and capturing escaped slaves so they could be returned to their slave masters below the Mason Dixon line.

In protest against the legislation forcing private citizens to assist in maintaining an immoral system, the Vermont state legislator passed the Habeas Corpus Law.

Houston’s article explains how the concept of states’ rights, in which states had ultimate authority over the federal government outside of powers granted by the Constitution, was commonly associated with the South. But in 1850, the “tables had turned, and Vermont seized upon nullification-nullification in fact if not in name-to strike blow against slavery.”

As Houston wryly notes, while nullification by Southern states are well known, the use of the doctrine by abolitionist states prior to the Civil War is glossed over by the history books (bold emphasis added).

Whereas the South Carolina crisis is well known to most historians, the significance of the crisis in Vermont has been largely overlooked. Vermont was unique b tween 1850 and 1853 in passing new and effective personal liberty law. That state’s courageous pursuit of racial justice and human freedom emphatically deserves rescue from historical oblivion. Vermont’s actions, moreover, was not as isolated as it may appear. While no other state legislators “nullified the law” “as Vermont did, talk of nullification was very much in the air in the fall of 1850.

Not only did the origin of nullification have nothing to do with defending the institution of chattel slavery in the South, but those who advocated its use weren’t confined to the South, either, and when one considers the political scene in 1850 this makes sense. Not only did slave owners have the Fugitive Slave Clause in the Constitution, but now they had an additional federal law that required private citizens to assist in hunting down people whom these slave owners considered to be their property.

It isn’t hard to see why nullification was never used to defend slavery; all federal laws prior to 1865, as well as the Constitution itself, protected the interest of slave owners.

Instead, abolitionists like poet John Greenleaf Whittier, who was offered the nomination as a Massachusetts state senator in a collation ticket with the Free Soil Party, took up the nullification cause. Although he declined to run for office in 1842 and in 1850, he wrote the following expressing his view on nullification in response to the Compromise of 1850 (bold emphasis added).

While I have sufficient personal and private reasons for declining any nomination for political office, there is one of a different character, which I may be justified in alluding to. Since the passage of the Fugitive Slave Law by Congress, I find myself in a position with respect to it which my fellow citizens are not prepared to justify. So far as that law is concerned, I am a nullifier. By no act or countenance of mine shall that law be enforced in Massachusetts. My door is still opened to the oppressed, whether fleeing from Austria or South Carolina.

“There is no reason to suppose that Whittier- a poet and a man deeply involved in the abolitionist struggle in politics – chose the word ‘nullifier’ casually,” Houston writes, adding that the comment made be taken as a critique of Mass. Senator Daniel Webster. Not only had he condemned South Carolina’s nullification attempt, but he was critical of the “disinclination” of some Northern states to return escaped slaves (bold emphasis added).

But I will state these complaints, especially one complaint of the South, which has in my opinion just foundation; and that is, that there has been found at the North, among individuals and among the Legislatures of the North, a disinclination to perform, fully, their constitutional duties, in regard to the return of person bound to service, who have escaped into free States. In that respect, it is my judgment that the South is right, and that the North is wrong. Every member of every northern legislature is bound, by oath, like every officer in the country, to support the Constitution of the United States; and this article of the Constitution, which says to these States, they shall deliver up fugitives from service, is as binding in honor and conscience as any other article. No man fulfills his duty in any Legislature who sets himself to find excuses, evasions, escapes from this constitutional obligation (emphasis added).

Houston also highlights the fact that Southerners who defended slavery found the practice of nullification to be less than admirable, quoting an article by the Richmond Whig and Public Advertise in a sarcastically titled article “Nullification Made Easy.”

When it becomes apparent that [the Fugitive Slave Law’s] operation is practically nullified by the people of one or more States, differences of opinion may arise as to the proper remedy, but one thing is certain that some ample mode of redress will be chosen, in which the South with entire unanimity will concur.

Adding to the ironic myth that nullification was used to justify slavery, abolitionists like William Lloyd Garrison, publisher of the Liberator, defended the use of nullification by abolitionist states on religious grounds, Houston writes, comparing the anti-slavery cause to that of biblical characters such as Daniel and St. Peter who defied laws running contrary to their religious convictions.

Such opposition to slavery was nothing new to ether New England or Vermont in particular. Its 1777 Constitution declared that “all men are born equally free and independent” and banned slavery for males over 21 and females over 18. In 1786, the state legislature passed an act declaring “the idea of slavery is expressly and totally exploded from our free government.”

In response to the Supreme Court’s 1842 decision in Prigg v. Pennsylvania which concluded that the Fugitive Slave Act precluded a Pennsylvania state law prohibiting blacks from being taken out of the state and back into slavery – Vermont passed a personal liberty law in 1843 employing the doctrine known as anti-commandeering. The law prohibited state law enforcement from participating in the arrest or detention of fugitive slaves, an act punishable by a fine of up to $5,000 dollars (an astronomical $161,290 today when adjusted for inflation) and a prison term of five years.

“By 1850,” Houston writes “Vermont itself had become decidedly abolitionist-due in no small part to the efforts of the Liberty Party in the previous decade,” whose fervor historian R. L. Morro compared to a “religious crusade.”

This is the political environment at the time when Vermont’s state legislature passed the Habeas Corpus Law, which stipulated that the state’s attorney’s had a duty to “protect, defend, and procure to be discharged” any person in Vermont “Arrested or claimed as a fugitive slave.” It also demanded that the state’s attorneys could obtain a writ of habeas corpus for any person “arrested, claimed, or imprisoned as a fugitive slave” by writing to any Supreme Court or circuit court judge in the state.

In other words, Vermont was nullifying the federal law in practice.

Houston describes the response by newspapers both in the North and the South as a “firestorm of protest’. One D.C. newspaper, maintaining the “respectable” position at the time, wrote that Vermont’s law “plainly and intentionally overrules and sets aside the Constitution and the Law of Congress.” One Boston newspaper even accused Vermont of “direct and open nullification of a law of Congress.”

But this statement in the New Orleans Bee, which Houston cites, needs to be quoted at length (emphasis added).

Fortunately, too, her position is such that she will probably never have occasion to attempt to put into practice her vile theories of nullification. If she ever should, we rely on the President, and on the people of Vermont themselves to bring the State back to reason, and to prove that ‘nullification’ north or south of the Potomac will be put down at all hazards.

Virginia Gov. John B . Floyd condemned Vermont for the bill’s passage in a December 1850 speech in which he also called for a general convention of the states to settle the slavery issue between the states (the convention never took place).

The Legislature of that State has virtually, by statute, annulled the Law of Congress for the recapture of fugitive slaves

So let’s rehash what happened: A state legislature uses nullification to defy and even resist a federal law that goes beyond the powers delegated to Congress through the U.S. Constitution based on principles advocated by the Founding Fathers. The media throughout the nation are quick to lambast the law for its “vile” act of nullification, claiming it threatens to destroy the Constitution itself. The governor of another state then blames the law on “extremists.” The President threatens to take whatever action necessary to ensure the federal law is enforced. But that ends up being little more than tough talk.

Does any of this sound familiar to you?

History may not repeat itself, but it sometimes it gets close enough.