 This is Classics of Liberty, from Libertarianism.org and the Cato Institute, narrated by Caleb Brown. Today's classic is Abram D. Smith and Nullification, Part 1. Virtually no one is aware that Abram D. Smith ever existed. His life has almost gone unnoticed by historians. Yet Abram D. Smith was not only floated by some for vice president on the Republican ticket in 1860, but he briefly served as president of the Republic of Canada more than two decades earlier. Smith was born in 1811 in one of the many upstate New York small towns dotting the Adirondacks, likely an antinomian congregationalist. As a young man and law student, Smith encountered the radical classical liberal philosophy of the New York loco-focos imbibed deeply in their brand of romantic revolutionary republicanism and moved west with his family. The Smiths settled in Ohio, and Abram threw himself into democratic politics. As a city councilman in Cleveland, he delivered speeches of the ultra-loco-focokind, in the words of a local paper. In his spare time, he conspired with fellow brother-hunters and patriots, as they called themselves, to violently overthrow British rule in Canada. When the attempted Canadian rebellion promptly dissolved, Smith returned to a relatively obscure life of quiet reformism. He joined the County Anti-Slavery Society and became a trustee for the Cleveland Female Seminary. The Smiths moved to Milwaukee, Wisconsin in 1842, where Abram styled, Governor of the People, gave expansionist speeches laced with radical liberal visions of American manifest destiny. He practiced law and delivered inspiring speeches, winning him election to the state supreme court. In 1852, a Missouri slave named Joshua Glover escaped his master and resettled in Racine, Wisconsin. When federal marshals tracked, captured and beat Glover on March 10, 1854, locals alerted famous abolitionist and publisher of the Milwaukee Daily Free Democrat, Sherman Booth. Booth led a crowd of 5,000 in an assault on the city jail on March 13, 1854. The crowd broke into the jail, freed Glover, and made public demonstrations of their victory. Officials soon charged Booth with aiding and abetting a fugitive slave. Booth's attorney, Byron Payne, appealed to the court to release his client, claiming that the Fugitive Slave Act violated the rights of Wisconsin by denying citizens due process of law. Smith's decision of June 7, 1854, nullified the Fugitive Slave Act in the state of Wisconsin. In the first of two selections from Smith's arguments, he explains the nature of the case before him, ways the various claims involved, and explains his reasoning that the Fugitive Slave Act was indeed an unconstitutional breach of authority incommensurate with the national government's strictly delegated powers. In Re Booth, Abram D. Smith, Justice of the Wisconsin State Supreme Court, Part 1. On the 27th alt, application was made to me by Sherman M. Booth, the petitioner for a writ of habeas corpus to be directed to Stephen V. R. Abelman, who, it was alleged, restrained the prisoner of his liberty. Accompanying the petition was a copy of the process by virtue of which it was alleged the petitioner was held in custody. This warrant charged Booth with having on the 11th day of March, 1854, at the city of Milwaukee in said county and district, unlawfully aided, assisted and abetted a person named Joshua Glover, held to service or labor in the state of Missouri under the laws thereof and being the property of one Benamy S. Garland, and having escaped therefrom into the state of Wisconsin to escape from the lawful custody of Charles O. Cotton, deputy of the Marshall of the United States, Forset District, pursuant to the provisions of the Act of Congress in that case made and provided approved September 18, 1850. In his application or petition, the petitioner alleges the illegality of his imprisonment to consist in the following, namely that the Act of Congress referred to in the said warrant is unconstitutional and void. Also, that Congress has no constitutional power or authority to punish the offense with which said Booth is charged and for which he is detained. That the Act of Congress of 1850 is in violation of the provisions of compact, unalterable, except by common consent contained in the ordinance of 1787 for the government of the territory northwest of the Ohio River and that therefore said act is not in force in said state. Upon this application, I could not hesitate to issue the writ according to the prayer of the petition. I cannot but feel the immense responsibility thrown upon me alone and may be pardoned for expressing my regret that I am deprived of the aid and counsel of my associates so much better able to cope with the grave and intricate questions involved than I am myself. Whether by design or from necessity, this application has been made to me, I meet the emergency with all the anxiety and concern which it cannot fail to excite and I hope with some share of the firmness which the occasion and the nature of the questions involved imperatively demand. The warrant by virtue of which the petitioner was held was not issued by a federal judge or court but by a commissioner of the United States. No exclusive or ultimate jurisdiction can be claimed for an officer of this kind. As one of the justices of the highest judicial tribunal in this state, which tribunal represents in that behalf the sovereignty of the state, I could not deny to any citizen or person entitled to the protection of the state the proper process by which the validity of a warrant issued by such authority could be examined. Indeed, we may go farther and say that as every citizen has a right to call upon the state authority for protection and as the judicial power in that only to which application can usually be made by the citizen, it is the duty of the judicial officer when applied to to see that no citizen is imprisoned within the limits of the state nor taken beyond its limits except by proper legal and constitutional authority. It is not in the power of anybody to divest the state judiciary of such authority nor can anybody but the people themselves absolve the judicial officers of the state from the performance of their duty in this behalf. The states will never submit to the assumption that United States commissioners have the power to hear and determine upon the rights and liberties of their citizens and issue process to enforce their adjudications, which is beyond the examination or review of the state judiciary. They will cheerfully submit to the exercise of all power and authority by the federal judiciary, which is delegated to that department by the federal constitution. But they have a right to insist, and they will insist, that the state judiciary shall be and remain supreme in all else and that the functions of the federal judiciary within the territory of the states shall be exercised by the officers designated or provided for by the constitution of the United States and that they shall not be transferred to subordinate and irresponsible functionaries holding their office at the will of the federal courts doing their duty and obeying their mandates for which neither the one nor the other is responsible. Every jot and tittle of power delegated to the federal government will be acquiesced in but every jot and tittle of power reserved to the states will be rigidly asserted and as rigidly sustained. It is only by exacting of the federal government a rigid conformity to the prescribed limitation of its powers and by the assertion and exercise of the part of the states of all the powers reserved to them and to do regard by both of their just and legitimate sphere that obedience can be rightfully exacted of the citizen to the authority of either. The constitution of the United States is the fundamental law of the land. It emanated from the very source of sovereignty as the same is recognized in this country. It is the work of our fathers but adopted and perpetuated by all the people through their respective state organizations and thus become our own. The citizen has by his vote, immediate or immediate established it as the great charter of his rights and by which all his agents or representatives in the conduct of the government are required to square their actions. I recognize most fully the right of every citizen to try every enactment of the legislature, every decree or judgment of a court and every proceeding of the executive or ministerial department by the written fundamental law of the land. No law is sacred, no officer so high, no power so vast that the line and the rule of the constitution may not be applied to them. It is the source of all law, the limit of all authority, the primary rule of all conduct, private as well as official and the citadel of personal security and liberty. Everyone has a right to resist an unconstitutional enactment of the legislature but he does so upon his peril until the conformity or nonconformity of the act with the constitution is judicially determined. Passive obedience cannot be exacted nor can private judgment in this behalf become the rule of action. To yield a cheerful acquiescence in and support to every power constitutionally exercised by the federal government is the sworn duty of every state officer but it is equally his duty to interpose a resistance to the extent of his power to every assumption of power on the part of the general government which is not expressly granted or necessarily implied in the federal constitution. Nor can I yield to the doctrine early broached but as early repudiated that any one department of the government is constituted the final and exclusive judge of its own delegated powers. No such tribunal has been erected by the fundamental law. To admit that the federal judiciary is the sole and exclusive judge of its own powers and the extent of the authority delegated is virtually to admit the same unlimited power may be exercised by every other department of the general government both legislative and executive because each is independent of and coordinate with the other. Neither has any power but such as the states and their respective people have delegated and all power not delegated remains with the states and the people thereof in view of the vastly increasing power of the federal government and the relatively diminishing importance of the state's sovereignty respectively the duty of the latter to watch closely and resist firmly every encroachment of the former becomes every day more and more imperative and the official oath of the functionaries of the state becomes more and more significant. Increase of influence and patronage on the part of the federal government naturally leads to consolidation, consolidation to despotism and ultimately anarchy, dissolution and all its attendant evils. If the sovereignty of the states is destined to be swallowed up by the federal government if consolidation is to supplant federation and the general government to become the sole judge of its own powers regardless of the solemn compact by which it was brought into existence and of the source of its own vitality as a humble officer of one of the states bound to regard the just rights and powers both of the union and the states I want my skirts to be clear and that posterity may not lay the catastrophe to my charge. I am truly thankful for the same feeling of conscientious firmness on entering upon the discharge of the duty before me as would be required in case of direct invasion, open rebellion or palpable treason against our common country. Without the states there can be no union. The abrogation of state sovereignty is not a dissolution of the union but an absorption of its elements. He is the true man, the faithful officer who is ready to assert and guard every jot of power rightfully belonging to each and to resist the slightest encroachment or assumption of power on the part of either. Suppose in a time of profound peace and quiet the federal government should pass a law suspending hapeous corpus would the state governments have the power to call to account the federal officers who had violated the compact in this behalf the Congress who had passed and the executive who approved it would the state courts be bound by it? Not at all. Such an act of Congress would simply be void and it would be the duty of every state and federal court so to pronounce it and it would afford no protection to any officer, state or federal for refusing to obey such writ. I mention these illustrations to show that a great portion of our federal constitution rests in compact while still another rests in grant. Where powers are granted they are to be exercised where rights rest in compact they have still the force of law but the federal government has no power to legislate upon them they are to be obeyed and enforced by the parties to the compact the states themselves. Can it be supposed for a moment that had the framers of the constitution imagined that under this provision the federal government would assume to override the state authorities, appoint subordinate tribunals in every county in every state invested with jurisdiction beyond the reach of inquiry of the state judiciary to multiply executive and judicial officers at Infinitum wholly independent of and irresponsible to the police regulations of the state and that the whole army and navy of the union could be sent into a state without the request and against the remonstrance of the legislature thereof? If the members of the convention had dreamed that they were incorporating such a power into the constitution, does anyone believe that it would have been adopted without opposition and without debate? And if these results had suggested themselves to the states on its adoption would it have been passed by them jealous as they were of state rights and state sovereignty? The idea is preposterous. The union would never have been formed upon such a basis. It is an impeachment of historic truth to assert it. Congress has the power to legislate in regard to fugitives from justice or labor but it may be asked how are the rights here stipulated and guaranteed to be enforced? I answer that every state officer, executive, legislative and judicial who takes an oath to support the constitution of the United States is bound to provide for and aid in their enforcement according to the true intent and meaning of the constitution. But what if one or more states should refuse to perform their duty and its officers violate their oaths and repudiate the compact? The simple answer is that when the state and federal officers become so regardless of their oaths and obligations as the question implies anarchy or revolution or both must supervene for the government would be a willful departure from the fundamental law of its organization and the people would be absolved from their allegiance to it. The fugitive slave clause as finally adopted reads but shall be delivered upon claim of the party to whom such service or labor is due. Here is a fact to be ascertained before the fugitive can be legally delivered up that his service or labor is really due to the party who claims him. How is this fact to be ascertained? What authority shall determine it? Clearly the authority of the state whose duty it is to deliver up the fugitive when that fact is determined. Until the issue which the constitution itself creates is decided, the person is entitled to the protection of the laws of the state. When the issue is determined against the fugitive then the constitutional compact rises above the laws and regulations of the state and to the former the latter must yield. To my mind this seems very clear and simple. The whole proceeding is clearly a judicial one. The law of 1850 by providing for a trial of the constitutional issue between the parties designated thereby by officers not recognized by any constitution, state or national is unconstitutional and void. It has been already said that until the claim of the owner be interpreted the fugitive in this state is to all intents and purposes a free man. The passing of judgment upon any person without his day in court without due process or its equivalent is contrary to the law of nature and of the civilized world and without the expressed guarantee of the constitution it would be implied as a fundamental condition of all civil governments. But the tenth section of the act of 1850 expressly nullifies this provision of the constitution. What then is to be done? Let the free states return to their duty if they have departed from it and be faithful to the compact in the true spirit in which it was conceived and adopted. Let the slave states be content with such an execution of the compact as the framers of it contemplated. Let the federal government return to the exercise of the just powers conferred by the constitution and few, very few will be found to disturb the tranquility of the nation or to oppose by word or deed the due execution of the laws. But until this is done I solemnly believe that there will be no peace for the state or the nation but that agitation, acrimony and hostility will mark our progress even if we escape a more dread calamity which I will not even mention. However this may be well knowing the cost I feel a grateful consciousness in having discharged my duty and full duty of having been true to the sovereign rights of my state which has honored me with its confidence and to the constitution of my country which has blessed me with its protection. And though I may stand alone I hope I may stand approved of my God as I know I do of my conscience. That was Abram D. Smith and nullification part 1 Find more classics of liberty at libertarianism.org