 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 2. In this second of two selections from Smith's decision in Rebooth, 1854, Justice Smith verbally elaborated before the court his earlier written decision. Smith argues that state judges have obligations and duties to protect the rights of citizens regardless of the unconstitutional pronouncements of the Supreme Court and the Congress of the United States. He maintains that the parties to the Constitution, the states, the people, and the United States have equal rights and duties to interpret the document and protect the party's rights as need be. Though Missouri pronounced Joshua Glover a slave and the national government unconstitutionally employed slave-catching marshals, Smith declares it his duty and right as a representative of Wisconsin and the people of Wisconsin to resist both any and all actions and legislations that violate the terms of the compact. In Rebooth, rocketed Smith to superstardom in the emerging anti-slavery community and steadily progressed to the United States Supreme Court. In Abelman v. Booth, 1859, Chief Justice Taney and a unanimous court overruled Smith. Meanwhile, a land scandal rocked Wisconsin state politics and upset the careers of many, including Smith, who stood accused of accepting $10,000 in railway bonds as a bribe. While he admitted to taking the bonds, he claimed it never influenced his opinion regarding land grants to the railroad. While Smith retained much of his anti-slavery fame, his credibility never recovered and the Democratic Party nominated a new candidate to Smith's position on the court. He was thus rendered a man without a party and though 40 Republican editors throughout the state endorsed his nomination on their own 1859 ticket, he received only 15 of 61 votes in caucus. From December 1860 to early 1862, Smith published the Milwaukee Free Democrat and co-authored the Direct Tax Act while visiting Washington in late 1861. The act levied land taxes in rebellious states. If landowners failed to pay, the national government assumed control of the property. The following year, Smith joined the Direct Tax Commission in the South Carolina Sea Islands. He arrived at his post in the Concord Islands to a gaggle of northern missionaries and a progressive atmosphere of freed slaves engaging in education, development, and training projects. Smith adjudicated disputes relating to the divisions of property and delinquent taxes, advocated full citizenship for freedmen, and he delighted in General Sherman's Special Field Order Number 15 in early 1865 which granted huge tracts of land to freed slaves throughout the South, believing that, quote, the betterment of the freedmen was inherently tied to their ability to own land in the area where they had been born and raised. He struggled with severe alcoholism and probably harder drug use that continually impacted his job performance. The man without a party, the former president of Canada and the one-time anti-slavery hero of states' rights, died in 1865 and root to New York after being relieved of his commission in disgrace. Abram D. Smith on nullification, part two. One great aim of the founders of our government, among others, was to secure beyond contingency personal liberty and to protect and preserve, as far as practicable, the independence and sovereignty of the respective states without whose agency such personal liberty could not be protected and secured. As far as was consistent with the practical efficiency of the federal government about to be organized. It should be remembered that error does not become truth by being often repeated, nor does truth lose any of its force or beauty by being seldom promulgated. Nor does vice become virtue by persistence in its practice, nor bad government grow better by acquiescence in its evils. Nor where a people have adopted a written fundamental law for the government alike of themselves and their rulers, does the infraction of that law become healed by a denial of its occurrence. 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 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, notwithstanding 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 the fulfillment of my official oath and obligations or the power of releasing me therefrom. 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 adherence 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. Previous to the operative vitality of the Constitution, this third party to the instrument was non-existent, and, of course, powerless. The other two parties, the states and the people, were pre-existent, 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 en masse as one undivided and 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. 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 governments pre-existent 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. 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 derived 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. 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. 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, but 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. 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 relinquish the right 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. 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 is 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. 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 the 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. If the master demands 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 has 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 slaveholders' authority. 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. But 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 responsible to its sanctions. At least such shall not become the degradation of Wisconsin without meeting as stern remonstrance and resistance as I may be able to interpose so long as her people impose upon me the duty of guarding their rights and liberties and of maintaining the dignity and sovereignty of their state. That was Abram D. Smith and nullification part two. Find more classics of liberty at www.charingism.org