Today marks the anniversary of one of two amendments to the U.S. Constitution that came about in part due to jury nullification—the Thirteenth Amendment, also referred to as Emancipation.
During great turmoil in the U.S. over private ownership of other human beings, Daniel Webster led the charge to maintain slavery and keep the country together and out of war. He championed a package of laws known as the Compromise of 1850, the most key element of which was the Fugitive Slave Act of 1850. He was so invested in this that he staked his presidential aspirations on its enforcement. Ultimately, he was humiliated and his presidential hopes were decimated.
The Fugitive Slave Act of 1850, among its many provisions, punished people for aiding and abetting fugitive slaves, or refusing to aid in their capture when ordered to do so. It was these people who were charged—and often not convicted, thanks to jury nullification—in order for Daniel Webster to defend the platform on which he planned to make a run for president.
Despite common misunderstanding, jury nullification of the Fugitive Slave Act was NOT used to prevent conviction of slaves. Under this law, alleged fugitives were not entitled to trial by jury, nor were they even allowed to testify. It is important to be clear on this point. Let us not mistakenly understate the seriousness and abusiveness of slavery by failing to accurately understand the depth of its evil.
As I have been learning in my research on the topic, it is true that jurors did often nullify the Fugitive Slave Act of 1850, with acquittals and hung juries. Early examples include two series of trials for rescues accomplished in 1851: the Shadrach Rescue Trials and the Jerry Rescue Trials.
In the Shadrach Rescue Trials, Daniel Webster shepherded the prosecutions of several men, both black and white, who aided in the rescue of Shadrach Minkins. The government began prosecuting the cases in the order of most likely convictions, but after just seven trials, in which jurors refused to convict five black and two white defendants, the government admitted defeat and abandoned further prosecutions.
In the Jerry Rescue Trials, around two dozen people were to be prosecuted after a crowd some 2500 people stormed a government building to break out William “Jerry” Henry and helped him escape to Canada. The Jerry Rescue was a catalyst for abolitionist activism in upstate New York from then until the Civil War. It was clear early on that convictions would be key to quelling this effect, but the government managed to secure only one conviction. Even that was likely to have been overturned on appeal had the defendant not passed away before the process was complete.
These early defeats were humiliating for the government and critical in emboldening the abolitionist movement in its rebellious pursuits to end slavery.
It is not surprising, then, that I have also turned up evidence this past summer in my research in Wisconsin that as the government recognized the power of jury nullification to thwart slavery, it dialed up its own efforts to undermine jury nullification. Wisconsin newspaper publisher Sherman Booth became embroiled in a years-long legal battle over his role in the 1854 rescue of Joshua Glover, who successfully escaped to Canada. This battle raged in both criminal and civil court, including involvement of both Wisconsin state and the federal government.
The judge in Booth’s criminal trial tightly controlled the proceedings, refusing to permit the jury to consider the justice of the law or the defense to argue it to the jury as was legal and had previously been done successfully. At least one juror begged the defense attorney to have him removed so that he would not be forced to convict against his conscience. Ultimately, Booth was convicted, imprisoned, and fined for his actions. While an appeal was mounted that resulted in the Wisconsin Supreme Court declaring the Fugitive Slave Act unconstitutional, this ruling was overturned by the United States Supreme Court.
Despite the government’s limited success in undermining the independence of the jury, jury trials in Fugitive Slave Act cases helped build momentum in the abolitionist movement that would ultimately make the Compromise of 1850 unenforceable and open the door to Emancipation.
After the conclusion of the Civil War, the former slave state of Louisiana would overtly craft a new state constitution specifically to politically disenfranchise its newly freed black citizens. One of these Jim Crow provisions, which is still in force today, was to remove the unanimity requirement for a criminal conviction. That way, one or two black jurors could not prevent an injustice by hanging the jury. Appallingly, the United States Supreme Court in the 1970s explicitly approved this and other erosions of the protection of the jury.