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of New Jersey and the
Fugitive Slave Law of 1793
Hornblower of New Jersey ordered the release of Alexander Helmsley,
who was then being held as a fugitive slave in Burlington, New Jersey. In
deciding this case Hornblower wrote a strongly abolitionist opinion, im-
plying that the federal Fugitive Slave Law of 1793 was unconstitutional.
However, Hornblower did not declare the federal law void, because he
did not have to do so. Helmsley had been seized and incarcerated under
a state law. Thus, Hornblower was able to order his release when he de-
termined that the New Jersey law under which Helmsley was held vio-
lated the state constitution. Because neither the sheriffwho held Helmsley
nor the slave owner who claimed him raised the federal law of 1793 ,
Hornblower did not have to explicitly address its constitutionality.
Hornblower did not read his elaborate opinion from the bench, although
he did he summarize his conclusions. Nor did Hornblowev have the opin-
ion published, either in the official reports or as a pamphlet.
Some newspapers, especially the antislavery press, communicated
Hornblower's decision. As far west as Ohio the antislavery attorney
Salmon E Chase, a future chief justice of the United States Supreme
Court, cited it for authority in a fugitive slave case. But Chase's citation
was probably an exception. Hornblower's unreported decision and un-
published opinion were initially of little use to antislavery lawyers and
activists. Illustrative of the initial obscurity of Hornblower's decision is
the fact that in 1838 William Jay, the abolitionist attorney and antisla-
very constitutional theorist, was unaware of it. Jay lived in Westchester
County, New York, close to Hornblower, and Hornblower had been a
personal friend of Jay's late father, Chief Justice John Jay. Yet, Jay knew
nothing of the opinion. 2
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because its principles applied to this law as well as to the a 793 act. Anti-
slavery editors, activists, and politicians appreciated the applicability of
Hornblower's conclusions to the debate over the constitutionality of the
Fugitive Slave Law of 85o. In the a 85os some judges cited the previ-
ously unpublished opinion as a legal precedent; 4 but more importantly
Hornblower's opinion emerged as an intellectual, moral, and political
argument against the Fugitive Slave Law. The very fact that Hornblower
had not published his opinion in 836 made his arguments more valu-
able in the a 85os. Hornblower had not been an abolitionist when he
wrote the opinion, and he had written it before fugitive slave rendition
was a major political issue. Thus, his opinion was an example of a dispas-
sionate approach to fugitive slaves by a respected state chief justice, un-
tainted by abolitionism.
The Hornblower opinion illustrates the connection between court
cases, legal theory, and antislavery politics. An understanding of this case
begins with a short discussion of how New Jersey dealt with the problems
posed by fugitive slaves entering that state.
ern state to abolish slavery, during much of the antebellum period New
Jersey was concerned about its own runaway slaves as well as those escap-
ing from Southern bondage. This is just one of the peculiar aspects of
New Jersey's relationship to the peculiar institution.
In the colonial period, New Jersey was the home of one of America's
most important early antislavery activists, John Woolman. In 786 Elias
Boudinot and Joseph Bloomfield organized N '
ewJersey s first antislavery
society. These men were not idealists, isolated from the mainstream. On
the contrary, they were leaders in state and national politics. Boudinot
was twice president of the Continental Congress, a signatory to the peace
treaty with Great Britain in a 783, and a three-term congressman under
the new Constitution. Bloomfield was an Admiralty judge, state attorney
general, congressman, governor of New Jersey from 18ol to 812, and a
general in the War of a 812.
Despite this early antislavery leadership, New Jersey was, as mentioned
above, the last Northern state to take steps to abolish slavery. Not until
18o 4 did New Jersey enact a gradual emancipation statute. This was nearly
a quarter century after Pennsylvania adopted the nation's first gradual
emancipation act.7
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made up for lost time. In 18 t 7 New York adopted a law freeing all its
slaves on July 4, 18 7. Meanwhile, in New Jersey slavery lingered. As late
as 1845 , the New Jersey Supreme Court held, in State v. Post, that the
"free and equal" clause of the state constitution of t 844 did not emanci-
pate the approximately seven hundred slaves remaining it' the state. Only
the aged Chief Justice Hornblower supported the abolitionists who
brought this case.
In 846 New Jersey took a small step toward finally ending slavery. A
new law changed the status of the state's remaining slaves to "servants
for life. '' Although a "free state," New Jersey was home to some blacks
still in servitude when the Civil War began. These superannuated blacks
remained in a state of semibondage until the adoption of the Thirteenth
Amendment ended all involuntary servitude in the nation.
Although a "free state," New Jersey was not always considered a safe
haven for escaped slaves. Bondsmen from Delaware and Maryland who
came into New Jersey were well advised (if they could find someone to
give them such advice) to continue north. In 846 the state's only anti-
slavery newspaper complained that New Jersey "still continues to be the
hunting ground of the kidnapper." On the other hand, in the 83os
negrophobes in southern Cumberland County complained that they were
about to be overrun by fugitive slaves. One racist politician claimed these
"vicious intruders" threatened the stability of the entire count; if not
the state. TM The truth no doubt lay somewhere in between these some-
what self-serving assessments.
Nathan Helmsley, whom Chief Justice Hornblower released from
custody, illustrates the complexity of the treatment of fugitive slaves in
New Jersey. When he resolved to leave his bondage in Maryland, Helmsley
recalled, "I started for New Jersey, where, I had been told, people were
free, and nobody would disturb me. ''n Once there Helmsley relocated a
few times to avoid capture, and he managed to live in the state for a
number of years before he was discovered and seized by a slave catcher.
As the I-Ielmsley case suggests, New Jersey was neither entirely hostile to
fugitive slaves nor especially welcoming. New Jersey was no Vermont or
New Hampshire; but neither was it a Maryland or a Virginia. Ironically; it
was in this atmosphere that Chief Justice Hornblower would issue the
most radically antislavery state supreme court opinion before the 85os.
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Boudinot, Abraham Clark,Jonathan Dayton, and Aaron Kitchell--voted
for the Fugitive Slave Law. None of these men were supporters of slavery;
Boudinot and Dayton were known to be strong opponents of slavery. But
probably they did not see this vote as proslavery. The history of the first
fugitive slave law suggests that its supporters thought the law was a fair
compromise between the needs of slaveowners to recover their fugitives
and the needs of the Northern states to protect their free inhabitants
from kidnapping. Within a few years it became clear that the Fugitive
Slave Law of 1793 in fact offered little protection to Northern free Blacks.
In a 797 New Jersey's Isaac Smith argued in favor of federal legislation to
protect free blacks from kidnapping. Congressman Smith argued that it
%,as impossible" for the states to protect against kidnapping because when
the kidnapper reached a new jurisdiction, he was safe from arrest and
prosecution. Smith was particularly worried about those free Blacks who
might be kidnapped and taken to the West Indies. He wanted a federal
inspection law to help prevent this. Smith could see no reason why such
legislation would give "offence or cause of alarm to any gentleman.-12
Later in this session, Congressman Kitchell spoke in favor of a peti-
tion from a group of African Americans in Philadelphia who claimed to
be free but who felt threatened by the Fugitive Slave Law of 1793- Dur-
ing this debate Southerners argued that these blacks were in fact fugitive
slaves and that their petition was unworthy of consideration by the House.
Kitchell believed that the status of the petitioners was irrelevant. He ar-
gued that Congress should accept a petition if there was merit to the
claim. The only question for him was "whether a committee shall be ap-
pointed to inquire on the improper force of law" used against blacks
living in the North. la
The House of Representatives ultimately refused to modify the fugi-
five slave law or even to receive the petition of the Philadelphia blacks.
The votes were not entirely sectional: a number of congressmen from
New England and New York voted with Southerners on both issues. Firm
support for the rights of free blacks came from Pennsylvania, Delaware,
and New Jersey. TM This opposition to slavery continued through the a 79os.
This relationship of slavery to national politics changed with the
Jeffersonian Revolution of 18oo. Aaron Kitchell, for example, was a leader
of the Jeffersonians in New Jersey. He shared with Jefferson a negrophobia
typical of many Democrats of the era. Kitchell believed "the great evil of
slavery was the introducing a race of people of different colour from the
mass of the people. If they were the same colour, time might assimilate
them together." After 8o 1 he was likely to side with his proslavery South-
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Jersey would not reemerge until the 183os. The key figure at this time
would be Chief Justice Hornblower, who viewed himself as a political
and intellectual descendant of the Federalist Party of the previous gen-
eration.
importation of slaves as merchandise from Africa or other states by es-
tablishing fines for bringing slaves into the state. However, illegally im-
ported slaves were not freed. Furthermore, this statute prohibited free
blacks from moving to New Jersey. TM Such a provision was common in the
laws of the slave states. These aspects of the law suggest a state more
interested in slowing the growth of its black population than in favoring
liberty. However, such an analysis may be mistaken, because the statute
also encouraged private manumission and the decent treatment of slaves
within New Jersey.
The 1786 statute also allowed for private manumission without re-
quiring either that the ex-slave leave the state or that the owner give a
bond to guarantee that the ex-slave would not become a public charge.
This was an important inducement for those masters who wanted to free
their slaves but could not afford to risk having to support them in the
future or who did not want to force their slaves to choose between gain-
ing freedom and having to abandon friends and family.
Finally, the law also subjected owners who kept their slaves to penal-
ties if they mistreated their bondsmen. 17 This was both a step towards
humanizing slavery and discouraging slaveholding.
In 1788 the legislature strengthened the prohibition on the slave
trade and also attempted to prevent the kidnapping of free blacks. The
statute prohibited the removal of slaves from the state without their con-
sent. This law also removed some disabilities of free blacks while simulta-
neously requiring slaveowners to teach their young slaves to read and
write. This statute contrasts sharplywith the laws of the antebellum South,
which generally made it a criminal offence to teach a slave to read. While
the literacy provision was certainly "a step in preparing them for free-
dom," the New Jersey legislature was not ready to take the final step of
adopting an emancipation scheme. TM
These statutes made New Jersey moderately antislavery, but the
legislature's actions were consistent with Madison's claim that New Jet-
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sion would soon end slaveholding, and thus there was no need for a law
on the subject. Indeed, the legislature perversely argued that a gradual
emancipation bill would actually delay the end of slavery in the state and
would "do more hurt than good, not only to the citizens of the State in
general, but the slaves themselves." There was, however, little evidence
to support this conclusion.19
In 1798 New Jersey adopted a new, comprehensive slave code as
part of a general revision of the state's laws. This new law did not lead to
an end to slavery, but it did contain some important modifications in
how blacks and slaves would be treated in New Jersey. One significant
change was to allow free Blacks from other states to enter New Jersey as
long as they could produce proof of their freedom. This made NewJer-
seyvirtually unique among slave states in that it allowed the unrestricted
immigration of free blacks.20
The 1798 law also supplemented the federal Fugitive Slave Law of
1793 by providing mandatory rewards for anyone seizing a runaway slave
and by holding liable for the full value of the slave anyone harboring a
fugitive slave or helping such a slave escape. 21
In tSo 4 the state finally passed a gradual emancipation statute, giv-
ing freedom to the children of all slaves born in the state but requiring
that theyserve as apprentices, the females until age twenty-one, the males
until age twenty-five. In the next seven years, the legislature fine-tuned
this law, but none of these amendments and changes significantly al-
tered the status of slaves in the state and or affected fugitives there. 22
In t821 New Jersey adopted a comprehensive revision of its slave
laws. The provision of the 1798 law regarding fugitives remained intact.
However, the 1821 law also punished severely anyone unlawfully remov-
ing a black from the state. This new provision was at least in part the
result of petitions from Middlesex County calling for a law to "prevent
kidnapping and carrying from the State blacks and other people of color."
Slaves owned by New Jersey residents could not be sold out of the state,
and only under certain circumstances could owners permanently leav-
ing the state take their slaves with them. Persons selling a slave for illegal
exportwere to be fined between five hundred and a thousand dollars, or
sentenced to one to two years at hard labor, or both. Purchasers and
exporters were to be fined one to two thousand dollars and were to spend
two to four years at hard labor. Officials were empowered to search ships
for blacks who were being forced out of the state, and anyone resisting
faced the same penalties as exporters. This law did not apply to bona
fide transients from other states nor presumably to masters recovering
fugitives. 23 But the law did make fugitive slave rendition more difficult by
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tween the need to support the constitutional claims of Southerners and
the almost universal belief in the North that slave catching was a dirty
business, to be avoided by decent people. Indeed, throughout the North
individual fugitive slaves often gained the sympathy of people who op-
posed abolitionists, believed in supporting the Union at all costs, and
supported the South in politics. Thus, New Jersey's citizens were usually
not inclined to support the return of fugitive slaves. Moreover, as the
statute of a 798 indicates, they felt an obligation to protect both the lib-
erty of their free black neighbors and some basic rights of the slaves
living within their midst.
At the same time, however, unlike every other free state, as late as
the 183os New Jersey had a substantial slave population. New Jersey's
legislators, and no doubt many of their constituents, were inclined to
protect the property rights of their slaveholding neighbors. Thus, in New
Jersey a tension existed between protecting local slaveowners whose hu-
man chattel might escape and protecting free blacks and fugitives from
other states who lived in New Jersey. This tension is seen in the early New
Jersey cases dealing with fugitive slaves.
In The State v. Heddon (1795), the New Jersey Supreme Court re-
leased Cork, a black who claimed he had gained his freedom during the
Revolution. At the time, Cork was imprisoned in Essex County as a run-
away slave, claimed by a man named Snowden. In a habeas corpus pro-
ceeding, the court ruled that Snowden's claim to Cork was insufficient
and released the alleged slave. 24
Heddon illustrates that before a 8o 4 New Jersey treated blacks the
way other slave states did. Officials presumed Cork was a slave, arresting
him when he appeared to be wandering about without a master. The
New Jersey court did not actually declare Cork to be free, but only deter-
mined that Snowden was not his owner, and since no one else claimed
him, Cork had to be released from jail.
The Gradual Emancipation Act of 18o 4 did not end New Jersey's
willingness to help in the return of fugitive slaves. In Nixon v. Story's Ad-
ministrators (18 3), a trial court awarded judgment against a man who
had carried slaves from New Jersey to Pennsylvania. Although the Su-
preme Court reversed the verdict on technical grounds, the original judg-
ment reveals the state's willingness to aid slave owners seeking their run-
aways. 25
In Gibbonsv. Morse (182a) and again in Cutterv. Moore (1825), the
New Jersey court decided in favor of masters suing ship owners or cap-
tains who had allowed slaves to escape. New Jersey continued to enforce
the provisions of the x 798 law that punished those who helped slaves
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gently allowed slaves to escape. In these civil suits motive was not an
issue. In both cases the owners recovered for the value of the lost slaves3
For blacks in New Jersey--free people, local slaves, or fugitives--
these two cases set ominous precedents. In Gibbons the chief justice of
New Jersey "charged the jury, that the colour of this man was sufficient
evidence that he was a slave." In upholding the jury's verdict, the New
Jersey Court of Errors and Appeals also affirmed that "the law presumes
every man that is black to be a slave." The headnotes to the official re-
port of the case confirmed that "In New Jersey, all black men are pre-
sumed to be slaves until the contrary appears."
Cutter explicitly reaffirmed this analysis. Unlike all other northeast-
ern states, New Jersey accepted the Southern view that all blacks were
presumed to be slaves until they could prove otherwise. 27
county sheriff to arrest the alleged fugitive slave. The judge would then
hold a hearing and, if convinced that the person before him was a fugi-
tive slave, would issue a certificate of removal. This law was designed to
provide more protection for blacks living in New Jersey than was afforded
by the federal Fugitive Slave Law of x 793. It was, as Chief Justice
Hornblower asserted, "more humane and better calculated to prevent
frauds and oppression" than the federal statute. 28 But, as Hornblower
would also conclude, this law did not adequately protect against fraud
and oppression.
Shortly after New Jersey adopted its 1826 act, Pennsylvania and New
York passed similar laws. These laws "represent a voluntary effort to find
a workable balance between a duty to protect free blacks and the obliga-
tion to uphold the legitimate claims of slave owners." While balancing
interests, these laws also represented a direct challenge to federal su-
premacy on the subject of fugitive slave rendition. These statutes added
requirements to the rendition process that had been set out in the fed-
eral law of 1793. In 1842 , in Priggv. Pennsylvania, the Supreme Court
would declare such extra requirements to be unconstitutional. But be-
fore Prigg these laws gave some protections to free blacks and fugitive
slaves in New York, Pennsylvania, and New Jersey. These laws also are
early examples of state legislatures finding independent and separate
state grounds for protecting the liberty of their citizens. Chief Justice
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also underscores that in antebellum America the federal government,
predicated on a proslavery constitution and perpetually dominated by
slaveowners, posed greater dangers to individual rights than the North-
ern states.
Holley, New Jersey, his wife Nancy Helmsley, and their three children.
Sometime around 182o Helmsley, then a Maryland slave called Nathan
Mead, escaped to New Jersey. There he married a woman who had been
free in Maryland "by word of mouth" but had no free papers. In New
Jersey the Helmsleys found work and raised a family of freeborn chil-
dren. ? 0
In 1835John Willoughby, a Maryland attorney, purchased Helmsley
"running" from the executor of Helmsley's deceased master. Another
Maryland attorney, R. D. Cooper, claimed Nancy and the children as his
own slaves? 1 On October 24, 835, Willoughby and Cooper secured the
arrest of the Helmsleys on a warrant issued by Burlington county judge
George Haywood and had them placed in the county jail. Two days later
Judge Haywood issued a writ of habeas corpus, which brought the
Helmsleys into his courtroom. Following the habeas corpus hearing,
Haywood recommitted Helmsley to the jail but apparently released his
wife and children. At this point Helmsley's attorney applied to Chief
Justice Hornblower for a writ of habeas corpus to bring the case before
the New Jersey Supreme Court. While Hornblower would eventually is-
sue this writ, he did not do so immediately. Thus, Helmsley remained in
jail until November 24, when he was brought before Judge Haywood
under a second writ of habeas corpus. Once again Judge Haywood re-
turned Helmsley to the jail.
Throughout these proceedings friends of the Helmsleys provided
the unfortunate family with attorneys who were abolitionists. The hear-
ings before Judge Haywood raised numerous questions about the iden-
try of the arrested blacks and if indeed they had been previously manu-
mitted. A trial on the status of Helmsley finally began on December 9.
After intermittent proceedings over a two week period, Haywood finally
declared Helmsley to be the slave of the claimants and ordered him held
in jail until he could be remanded to his owners? 2
In early December, before Judge Haywood reached his decision on
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The extant court papers do not indicate the exact procedural develop-
ments in the case. The remaining record does show that in February
a 836 Chief Justice Hornblower finally issued the writ of habeas corpus
that Helmsley's attorney had applied for in November. 33
On March 3, 1836, Helmsley was brought to Trenton, where the
New Jersey Supreme Court determined his status. At this point Helmsleys'
abolitionist attorneys deferred to move prominent counsel, William
Halsted and Theodore Frelinghuysen. Halsted had previously been the
reporter for the New Jersey Supreme Court. Frelinghuysen, the mayor
of Newark, was a former United States senator, a leader of the American
Colonization Society, and a politician not disposed to abolition. Never-
theless, he vigorously supported the claims of this black family living in
New Jersey. This suggests the potency of claims to freedom by Blacks
living in the North.
Hornblower began his analysis of the case by noting that the New
Jersey law of 1826 was in conflict with, although not "in direct opposi-
tion" to, the federal law of x 793. The two laws prescribed "different modes
of proceedings," and so, he concluded, "both cannot be pursued at one
and the same time, and one only.., must be paramount. TM
Hornblower concluded that the federal law provided a "summary
and dangerous proceeding" that afforded "little protection of security
to the free colored man, who may be falsely claimed as a fugitive from
labor." The New Jersey law was "move humane." The question for the
court was which law should be paramount?5
Hornblower acknowledged that the United States Constitution made
federal laws the "supreme law of the land," but he pointed out this was
only true if the law was "made in pursuance" of the Constitution. This
meant that if Congress had "a ri-ht to legislate on this " "
, ,, o o subject, New
Jersey s lawwas no better than a dead letter "Hornblower, however, was
unwilling to acknowledge that Congress had this power. Instead, he of-
feted a careful analysis of Article IV of the Constitution?6
Hornblower compared the Full Faith and Credit clause of section 1
with the Fugitive Slave clause of section 2. The first provision explicitly
gave Congress the power to "prescribe the manner in which" acts, records,
and proceedings of one state would be proved in another. Similarly,
Hornblower noted that section 3 of article IV also explicitly empowered
Congress to pass legislation?7 But no such language existed in section 2
of article IV. This led Hornblower to conclude that "no such power was
intended to be given" to Congress for section 2. Indeed, Hornblower
argued, Congressional legislation over the Privileges and Immunities
clause or over interstate rendition "would cover a broad field, and lead
to the most unhappy results." Such legislation would "bring the general
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country, the right of Congress to legislate on the subject of slavery at all,
even in the district [of Columbia] and territories over which it has exclu-
sive jurisdiction, is denied." Thus, Hornblower found that Congress surely
lacked the "right to prescribe the manner in which persons residing in
the free states, shall be arrested, imprisoned, delivered up, and trans-
ferred from one state to another, simply because they are claimed as
slaves." Hornblower warned that the "American people would not long
submit" to such an expansive view of Congressional power, as
This analysis seemed to lead to only one conclusion: that the federal
law of 1793 was unconstitutional. But Hornblower insisted that it was
not his "intention to express any definitive opinion on the validity of the
act of Congress." He thought he could avoid this grave responsibility
because the case before him had been brought "in pursuance of the law
of this state." However, Hornblower's position on the constitutionality
of the federal law was unambiguous. His opinion explicitly argued that
Congress lacked power to pass such a law. 39 The rest of his opinion dealt
with the constitutionality of New Jersey's 186 law. While not returning
to the federal law, Hornblower's discussion of the state law implied that
the federal law of 1793 was also unconstitutional because it did not guar-
antee a jury trial to putative slaves and thus violated the basic protec-
tions of due process found in the Constitution and the Bill of Rights.
Hornblower began his examination of New Jersey's 186 law by
affirming "the right of state legislation on this subject." He did not de-
bate this question. He merely assumed the state had such a right. But the
right to regulate fugitive slave rendition did not automatically make such
a law constitutional. Hornblower complained that the 186 law autho-
rized "the seizure, and transportation out of this state, of persons resid-
ing here, under the protection of our laws." Hornblower noted that these
blacks might be "free-born native inhabitants, the owners of property,
and the fathers of families." Yet "upon a summary hearing before a single
judge, without the intervention of a jury, and without appeal," they could
be removed from the state. Rhetorically he asked, "Can this be a consti-
tutional law? ''4
Hornblower pointed out the possibilities for fraud and deception
under the 186 law. Under this law any free black could "be falsely ac-
cused of escaping from his master, or he may be claimed by mistake for
one who has actually fled." These were issues of fact, which Hornblower
believed should be decided by a jury. Indeed, he believed that the New
Jersey constitution required that such a question come before a jury. 41
Hornblower agreed that the Fugitive Slave clause of the Constitu-
tion had to "be executed fully, fairly, and with judicial firmness and in-
tegrity." But that did not require that "the person claimed shall be given
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only a jury could determine. 42
Here Hornblower made a careful distinction between the Fugitives
from Justice and the Fugitive Slave clauses of article IV of the Constitu-
tion. Hornblower believed that the former required the surrender of an
alleged criminal "on demand of the EXECUTIVE authority of the state"
because the person delivered up was "charged with a crime." However,
being charged with a crime did not guarantee a conviction. An accused
person was "to be delivered up, not to be punished, not to be detained
for life, but to be tried, and if acquitted to be set at liberty. ,,43
The case of fugitive slaves was different. They would not get a trial
when returned to the claimant. They would face a lifetime of bondage.
With unusually passionate language, Hornblower noted that the issue
was "whether he is to be separated forcibly, and for ever, from his wife
and children, or be permitted to enjoy with them the liberty he inher-
ited, and the property he has earned. Whether he is to be dragged in
chains to a distant land, and doomed to perpetual slavery, or continue
to breathe the air and enjoy the blessings of freedom." Hornblower had
no difficulty declaring the law of his own state to be "unconstitutional on
the ground that it deprives the accused of a trial by jury."44
Hornblower still had one more hurdle to overcome before he could
free the slaves before him. By 1836 very few cases involving fugitive slaves
had come before American courts. Nevertheless, one of the few prece-
dents on this subject complicated Hornblower's decision. In 18 1 9 the
prestigious chief justice of Pennsylvania, William Tilghman, had heard a
similar case, involving an alleged fugitive slave held in a Pennsylvania
jail. The incarcerated black had argued that under both the Pennsylva-
nia and the United States constitutions he was entitled to a jury trial. 4
In rejecting this plea, Chief Justice Tilghman had asserted that "our
southern brethren would not have consented to become parties to a
constitution under which the United States have enjoyed so much pros-
perity, unless their property in slaves had been secured." This implica-
tion of the "original intent" of the framers of the Constitution, like so
much modern intentionalist analysis, had no basis in fact. This was of
little matter to Tilghman, who had concluded that "the whole scope and
tenor of the constitution and act of Congress" led to the conclusion "that
the fugitive was to be delivered up, on a summary proceeding, without
the delay of a formal trial in a court of common law." Tilghman had
naively believed, or disingenuously claimed to believe, that any slave who
"had really a right to freedom" could "prosecute his right in the state to
which he belonged."46 Thus, Tilghman would not release the alleged
slave before him or grant him a jury trial.
This decision was from a different state and thus was not binding on
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for due process by attacking Tilghman's belief that an alleged fugitive
could "be transported" to another state because "he will there have a
fair trial." Hornblower declared, "So long as I sit upon this bench, I
never can, no I never will, yield to such a doctrine." Indignantly the New
Jersey justice asserted:
friends, and his witnesses--transport him in chains to Missouri or Ar-
kansas, with the cold comfort that if a freeman he may there assert and
establish his freedom! No, if a person comes into this state, and here
claims the servitude of a human being, whether white or black, here he
must prove his case, and here prove it according to law. 47
slaves. Finally, Hornblower established himself and his court as perhaps
the most antislavery justice and venue in the nation. Ironically, although
New Jersey was the Northern state with the largest number of slaves, its
supreme court had staked out the most progressive position on the rights
of blacks claimed as fugitive slaves.
Hornblower had rejected the reasoning and analysis of the Chief Justice
Tilghman and the Pennsylvania Supreme Court. Similarly, he had ig-
nored a recent New York case, even though it might have bolstered his
position that New Jersey need not follow the federal law of 1793 .48
Hornblower's opinion was as radical as anything the new abolitionist
movement was demanding. Equally significant, Hornblower was ahead
of moderate antislavery politicians on this issue. A comparison with rul-
ings in other states illustrates the radical position of Hornblower.
In 1826 Pennsylvania had adopted a personal liberty law that re-
sembled the New Jersey law of the same year. Although the Pennsylvania
Abolition Society thought this law was "a manifest improvement upon
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characterized as "a compromise between what were considered the de-
mands of the fugitive slave clause, and the responsibility to protect the
personal liberty of free blacks," the 1826 act did not guarantee a jury
trial, or indeed a trial of any kind, on the issue of freedom. Unlike New
Jersey, Pennsylvania was unwilling to move from this position in the 183os.
In 1837, a year after the Hornblower decision, the Pennsylvania legisla-
ture overwhelmingly defeated a bill to provide jury trials in fugitive slave
cases. In the Pennsylvania senate only ten of thirty-one senators present
voted in favor of the bill; the Pennsylvania house defeated the proposal
by a vote of seven for and ninety-three against. 49
In 1835 Massachusetts had eliminated the common law remedy of
the writ of de homine replegiando. This writ had allowed alleged fugitives to
try their claim to freedom before a jury. With the writ gone, and no jury
trial law on the books, alleged fugitives in Massachusetts were at the mercy
of a single magistrate and the federal law of 1793.5
The situation in New York was more complicated. In 1828 New York
had adopted a procedure to allow the return of fugitive slaves after a
hearing before a judge. However, alleged fugitives were allowed under
another statute to apply for a writ de homine replegiando, which would bring
their status before a jury. But in Jack, v. Martin the New York Supreme
Court concluded that the statute allowing a writ de homine replegiando in
fugitive slave cases was unconstitutional. On appeal to the New York Court
for the Correction of Errors, Chancellor Reuben Walworth held in 1835
that the writ should apply to alleged slaves. However, Walworth, along
with the rest of that court, ruled that Jack was a fugitive slave, and he was
remanded to his owner. Thus, after 1835 it was impossible to know ex-
actlywhat the status of a jury trial was for alleged fugitives seized in New
York. In 1838 , New York abolitionists questioned candidates for gover-
nor on whether they supported a jury .trial in fugitive slave cases. The
Democratic candidate ignored the questions, while the victorious Will-
iam H. Seward was evasive. Not until 184o did Seward sign into law a bill
guaranteeing a jury trial for fugitive slaves. 1
Within a year of Hornblower's opinion, New Jersey adopted a new
law, the Personal Liberty Law of 1837 , regulating the return of fugitives
from the state. The law sailed through the legislature, with minimal dis-
cussion in the House and almost no debate at all in the Council. This
statute allowed for a summary hearing before a state court, but instead
of one judge deciding the case, a panel of three judges would be con-
vened. The law also provided that "if either party shall demand a trial by
jury, then it shall be the duty of the said judge, before whom such fugi-
tive shall be br "
ought, to impanel a jury to determine the black's status.
This was the first statute in the North to guarantee a jury trial for fugitive
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ruled that state laws which interfered with the rendition of fugitive slaves
were unconstitutional.Justice Joseph Story, who wrote the majority opin-
ion, upheld the constitutionality of the 1793 law; asserted, in what may
be one of the earliest uses of the "preemption doctrine" in federal con-
stitutional law, that the law preempted the entire question; and concluded
that no state could make additional regulations for the return of fugi-
tives. Story based some of his decision on the same sort of incorrect his-
tory that Judge Tilghman had used in Wight v. Deacon. This ruling of
course undermined Hornblower's opinion and the 1837 statute. Never-
theless, when New Jersey revised its statutes in 1846, the legislature in-
cluded the 1837 act. 5"
thought best on a conference between my associates and myself not to
agitate the public mind on the question of the constitutionality of the
Act of Congress of 793, then in force." As we have seen, Hornblower's
opinion did not become a useful legal precedent for abolitionist attor-
neys. Only after it was published as a pamphlet in 185 did the opinion
become important--and then mostly as a political precedent. Moreover,
Hornblower's failure to publish the opinion eventually undermined its
value in New Jersey. The opinion probably set the stage for the adoption
of New Jersey's Personal Liberty Law of 837 .54 But, as knowledge of the
unpublished opinion dwindled, its utility as a precedent disappeared.
The decision not to officially publish the opinion limited the public's
access to newspaper accounts of the case. That had two consequences.
First, it undermined the opinion as a precedent. Second, it led to
conflicting understandings of exactly what was in the opinion.
The first newspaper account of the case was in TheFriend, published
by antislavery Quakers in Philadelphia. This report did not appear until
June, three months after the decision. A month later the nation's lead-
ing antislavery newspaper, the Liberator, reprinted this article under the
headline "Important Decision." The Liberator quoted favorably one of
Helmstey's original abolitionist attorneys, who declared "this day" was
"the brightest that has dawned upon this unfortunate race of beings since
the year 8o4," the year New Jersey had passed its Gradual Emancipa-
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At about the same time another abolitionist periodical, the Emanci-
pator, reprinted of the original article in TheFriend. The Emancipator added
a summary of the three major points of Hornblower's decision: that the
federal fugitive slave law of 1793 was unconstitutional; that all people in
New Jersey had a right to a jury trial; and that "the color of a person
should be no longer considered as presumptive evidence of slavery" in
New Jersey. Meanwhile, the New York Evening Star also wrote about the
decision. The Evening Star, basing its assessment of the case on the story
in the Emancipator, editorialized that under this decision New Jersey had
become "an asylum of fugitive ayes where owners lacked "any hope of
sl "
recovering such ro er ,,6
p p ty.
Both newspaper reports were somewhat incorrect. Hornblower had
not actually declared that the federal law of 1793 was unconstitutional,
although his opinion certainly implied it was. The assertions in the Eman-
cipator that alleged fugitives were entitled to a jury trial and that blacks
were presumptively free did accurately reflect Hornblower's opinion,
but the Evening Star clearly exaggerated when it stated that New Jersey
had become an "asylum" for fugitive slaves. However, had the rinci les
of Hornblower's decision been vigorously adopted throughoutPthe stPate,
slave catching would have become quite difficult.
In August the Newark Daily Advertiser attacked the decision and the
various newspaper accounts of it. The Daily Advertiser was unhappy with
the decision and with public perceptions of it. The Daily Advertiserbegan
its comment by quoting briefly from the stories in the Emancipator and
the New York Evening St 57 ?
at. The Dazly Advertiserbelieved these newspaper
reports had created an erroneous impression that needed to be coun-
tered.
But if the reports of the case in the Emancipator and the Evening Star
were incorrect, so too was Daily Advertiser's own account of the case. This
paper asserted that the "only point decided by the Court was, that upon
the facts of the case .... the prisoner was entitled to be discharged out of
jail." The paper conceded that all blacks in the state were presumed
free, while it inaccurately denied that Hornblower had spoken to this
point. The Daily Advertiser stressed that Hornblower's opinion had not
been written and was therefore not a precedent at all. The paper com-
plained that "an obscure partizan press" (like the Emancipator) was al-
lowed to publish misleading articles about the law by "catching reports
of cases.., from the lips of lookers-on, and spreading them before the
world as decisions. The Daily Advertiser feared that other papers would
make the same mistake as the Evening Star and believe the report in the
Emancipator. The Newark paper feared that this would lead to a "kin-
dling [of] prejudice and passion" in "the Southern States, against one of
the most respectable legal tribunals in the country.-58
The Daily A " '
dvertzsers fears were unnecessary. Because it was unre-
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said New Jersey's act of 1826 was unconstitutional. Other judges in the
state apparently accepted this, but with ironic results.
While declaring the law violated New Jersey's constitution,
Hornblower did not rule on the constitutionality of the federal law, in
part because he did not have to and in part because he did not want to
directly confront the national government. The result left New Jersey's
free blacks and fugitives slaves in a worse position than before the
Helmsley case. The 1826 New Jersey law had offered fugitive slaves more
protection than the federal law, although not as much as Hornblower
demanded. Butwith the 1826 act no longer in force, slave catchers could
still use the federal law of 1793-
In August 1836 the arrest of Severn Martin, a black living in
Burlington, New Jersey, revealed the irony of Hornblower's opinion.
Martin had lived in the area for seventeen years, and there was little
evidence that he was a slave. Only the "energy and judgment displayed
by the Mayor" prevented a riot, as several hundred people "attempted to
rescue" Martin. When calm was restored, a county magistrate, applying
the loose evidentiary standards of the federal law of 1793, remanded
Martin to the man who claimed to be his owner. The claimant quickly
removed Martin. He was only freed when his New Jersey friends raised
eight hundred dollars to purchase him. 9
Because this "atrocious case occurred in New Jersey," the Philadel-
phia paper Human Rights rhetorically asked, "What has become of the
decision of Chief Justice Hornblower?" The paper concluded the deci-
sion was "inoperative" because it had declared the state law, but not the
federal law, unconstitutional, even though the latter also denied a right
to trial by jury. The New Jersey legislature remedied this situation at its
next session, when it passed the 1837 law giving alleged fugitive slaves
greater legal protections than they had previously enjoyed, including
the right to demand a jury trial. 6
son, urged Ellis Gray Loring, the city's most prominent abolitionist attor-
ney, to
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dence of slavery.
Hornblower's opinion in attempting to free the slave Matilda, in 1837 .I
At the time, however, Chase had not seen a complete report of the opin-
ion. With the emergence of a new fugitive slave law in 85o , Hornblower
and his 1836 opinion gained new fame.
In April 1851 Chase, by this time a U.S. senator, sent Hornblower a
copy of his brief to the United States Supreme Court in the fugitive slave
case of Jonesv. Van Zandt. Chase also sent Hornblower a copy of a speech
he had given on the new fugitive slave law. Chase did not know
Hornblower, but Chase often sent copies of his speeches and legal argu-
ments to strangers who might agree with his position. In this letter Chase
mentioned that he had cited the 836 Helmsley opinion in Matilda's
case, and Chase asked Hornblower for a copy of that opinion. 2
Hornblower immediately responded with a gracious and lengthy let-
ter thanking Chase for the material he had sent. He praised Chase for
the "noble stand" the Ohio Senator had "taken in behalf of right; in
behalf of law; of justice; humanity, of the Constitution, of patriotism, of
philanthropy, of universal emancipation of the human race in body &
mind, and of all that is calculated to elevate our fellow men, to the dig-
nity of manhood." Hornblower complained that the "sacred... soil of
New Jersey, consecrated by the blood of our fathers, in their struggles
for human liberty, is now desecrated by the feet of bloodhounds pursu-
ing their victims," and that " "
erseymen and all "other free Americans"
faced fines or imprisonment if they refused to "join in the chase."a
Hornblower concluded this four-page lette" by explaining to Chase
that in the Helmsley case he had prepared a long opinion but did not
actually read it from the bench. Instead, he had given an oral summa-
tion of his points. Although it now lay in his "mass of miscellaneous
unfinished" writings, Hornblower promised to find the opinion and send
it to Chase.a4
Shortly after Chase asked for a copy of the opinion, William Dayton,
a former U.S. senator from New Jersey, also asked for a copy. Dayton had
been on the Senate Judiciary Committee during the debates over the
Fugitive Slave Law of 1850 , and he regretted that he had not had access
to Hornblower's opinion then.65
It is unknown if Hornblower ever sent either Chase or Dayton a full
copy of the opinion. However, in 18 51 the long-dormant opinion took
on a new life. That summer an antislavery convention in Ohio read
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Meanwhile, portions of Hornblower's letter to Chase appeared in
newspapers and were "extensively disseminated by the press." The ex-
cerpts from the letter included references to the Helmsley case. These
newspaper accounts prompted William Jay, the abolitionist attorney and
son of former Chief Justice John Jay, to write Hornblower praising his
antislavery position. Jay was especially pleased to find a "gentleman mov-
ing in" Hornblower's "sphere"--that is to say, a fellow bona fide upper-
class American brahminmwho also opposed slavery. Hornblower then
offered to send a copy of his Helmsley opinion to Jay, and by the end of
July he had done so. 67
Hornblower sent Jay the original manuscript opinion, which Jay ex-
citedly read and then sent to New York City to have it published. On 3 ?
July 18 51 the opinion appeared on the front page of the New York Evening
Post. In addition to publishing Hornblower's opinion in a newspaper, Jay
arranged for its publication and distribution in pamphlet form. Jay told
Hornblower he could have "as many copies of the pamphlet as you might
desire," which made sense, since the pamphlet had been published for
"gratuitous distribution. ''aS
Printed with the opinion was a short unsigned commentary (actu-
ally written by Jay) quoting Massachusetts senator Daniel Webster's "Sev-
enth of March Speech" together with a short attack on Webster for his
support of the Fugitive Slave Law of 185o. Following this commentary
was an extract from a letter from Hornblower to Jay, also attacking Webster
and the Fugitive Slave Law of 1 85o.
The commentary and the quotations from Webster and Hornblower
supported the notion that fugitive slave rendition should be kept in the
hands of the states. The pamphlet quoted Webster's "Seventh of March"
speech where he declared:
confess I have I always been of opinion that it was an injunction upon
the states themselves. 69
states should accordingly protect black rights and black freedom through
appropriate legislation. Hornblower in effect held that "adequate and
independent state grounds"--to use a modern conceptlexisted to pro-
tect free blacks from kidnapping and to insure that alleged fugitive slaves
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hypocrite whose only concern was his political ambition. 7
Jay and his fellow abolitionists were willing to give away this pam-
phlet because they believed that Hornblower's opinion was an invalu-
able asset to their antislavery constitutionalism. Unlike most antislavery
propaganda, this assault on the fugitive slave laws had not been written
by an abolitionist. Rather, the opinion came from the respected chief
justice of a very conservative northern state. This increased the credibil-
ity of the opinion and its potential impact on Northern society.
Even before the Evening Post printed the full text of Hornblower's
manuscript, the opinion was apparently circulating within the antisla-
very movement. The potential of Hornblower's denunciation of the Fu-
gitive Slave Law of 793 and his support of due process for blacks be-
came clear in the wake of the adoption of the Fugitive Slave Law of 185o.
Finally, in early August 18 51 Jay's pamphlet printing of the opinion be-
gan to circulate. Although they had asked Hornblower for a copy of the
opinion before Jay did, neither Chase nor Dayton may have seen the full
opinion before Jay had it published.
After reading the full opinion, Chase complimented Hornblower
and expressed his regret that the opinion had not been "printed and
generally circulated" when first delivered because it would "certainly have
done much good." Chase thought that Hornblower's opinion might have
prevented the "promulgation of the consolidation doctrines of constitu-
tional construction" accepted by many "from whom better things might
have been expected."72
The flurry of activity surrounding the opinion dissipated in 185
but reemerged during the crisis over the Kansas-Nebraska Act in 854.
That year the Trenton State Gazette reprinted the opinion as a front-page
story, noting that "Although delivered before the passage of the fugitive
law of 85o , its arguments are such as will apply to that and all other laws
passed by Congress for the rendition of fugitives." This paper endorsed
Hornblower's argument that a jury trial was necessary for the return of a
fugitive slave.7 s
A few months later Horace Greeley's New York Tribune cited Horn-
blower's opinion in arguing that judges should oppose the Fugitive Slave
Law of 85o , which the paper believed violated "reason and the vital
principles of the Constitution." The Tribune praised the the Wisconsin
Supreane Court, which had declared the law unconstitutional in the case
that would eventually come to the United States Supreme Court as
Ableman v. Booth. "Chief Justice Hornblower of New-Jersey," the Tribune
noted, "sometime ago, led the way in an elaborate opinion denying the
power of Congress to legislate on the subject of fugitive slaves. ''74
In the legal conflicts caused by the Fugitive Slave Law of 185o, the
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parte Langston, a case growing out of the famous Oberlin-Wellington
rescue. Simeon Bushnell and Charles Langston were in jail, under fed-
eral process, for their role in rescuing a fugitive slave. In concurring in
the decision not to release the abolitionists, Justice Peck noted that in
t836
declare either law invalid, and finally discharged the prisoner, because
the proceedings did not conform to the requirements of the act of the
State of New Jersey. 75
tion" of federal power to pass a fugitive slave law "is not settled."Justice
Sutliff, also in dissent, cited both Hornblower and Walworth for the
proposition that the Fugitive Slave Clause of the Constitution "vests no
power in the federal government" to adopt legislation. TM
In March 186o Senator Benjamin E Wade of Ohio conceded that
Congressional jurisdiction over fugitive slave rendition had been ac-
cepted, "the courts having adjudicated that point against my opinions;"
but he argued that "no lawyer would agree with the courts were it a case
of first impression." He disputed that the courts of the nation had been
unanimous on this question, as Senator Robert Toombs of Georgia had
asserted. Wade pointed out that 'Judge Hornblower, of New Jersey, on
habeas corpus, held the law [of 1793] unconstitutional, and discharged
the fugitive for that reason. ''77 This was a slight exaggeration of what
Hornblower had held. He never reached the constitutionality of the fed-
eral law because the case came before him under the state statute.
Less than a month later, New Jersey's Senator John C. Ten Eyck at-
tempted to straighten out the facts of the case. He told the senate that
Hornblower had not in fact declared the 1793 law unconstitutional but
had freed the slaves before him "on the ground of defective evidence. ''w
This was also an incorrect statement of what had occurred.
The speeches by Wade and Ten Eyck led to some correspondence
between Hornblower and his senator. In a letter to Ten Eyck, Hornblower
reaffirmed his position in the case and his opposition to remanding fu-
gitive slaves without jury trials. Hornblower also noted that the two other
judges on the court, "both of them my political opponents," agreed with
him. One of these,Judge Ford, was himself a slaveholder, with family ties
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the more radical Benjamin Wade, should bring these facts before the
Senate. 79
By 186o the Hornblower opinion had become part of the growing
crisis of the Union. In 1836 Hornblower had argued that the powers of
Congress in article IV were strictly limited. They did not include the
right to legislate over fugitive slaves. This, he believed, was reserved for
the states. That position, however, had been rejected by the Congress in
1793, by the Supreme Court in 842 , and again by the Congress in t 85o.
In 186o the eighty-three-year-old Hornblower suggested that the
defeat of his position might yet help promote antislavery. Writing to Sena-
tor Ten Eyck, Hornblower suggested that someone "introduce a bill in
Congress to secure to citizens of this or any other state the same 'immu-
nities', they enjoy here, in every other state, or in other words, to carry
into effect the provision of that section." Hornblower's logic was clear. If
Congress had the power to pass legislation to enforce the fugitive slave
clause of article IV of the Constitution, then Congress also had the power
to enforce the Privileges and Immunities clause of article IV. Hornblower
thought that a bill along these lines would "add fuel to the fire already
burning in the South" and "what is now comparatively a small combus-
tion will become a volcano."s The retired justice may by this time have
regretted not publishing his 836 decision, for he no longer thought
that deference to the South, or federal power, was the answer to the
problem of slavery in the nation.
cal Commission, the staffs of the New Jersey Historical Society, the New Jersey
State Archives, the Library of Congress, and the Rare Book and Manuscript
Library, Columbia University for their help in expediting this research. I pre-
sented earlier versions of this paper at the Seminar for New Jersey Historians at
Princeton University, Seton Hail Law School, and the Organization of Ameri-
can Historians. An earlier version of the article, "State Constitutional Protec-
tions of Liberty and the Antebellum New Jersey Supreme Court: Chief Justice
Hornblower and The Fugitive Slave Law," was published in z3 Rutgers Law Jour-
nal753 (199).
1. Statev. The Sheriff of Burlington, No. 36286 (N.J. 1836 ) (unreported deci-
sion of New Jersey Court of Errors and Appeals, case records on file at New
Jersey State Archives; hereinafter cited as Helmsley Case file.) In the Helmsley
Case file this case is called Nathan, Alias Alex. Helmsley v. State.
. Salmon p. Chase to Hornblower, April 3, 1851, Hornblower Papers, box
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nati: Pugh and Dodd, 1837), 18; reprinted in Southern Slaves inFree State Courts:
The PamphletLiterature, ed. Paul Finkelman (New York: Garland, 1988), 2:1-4o .
William Jay to Hornblower, July 11, 1851, Jay Family Papers, Rare Book and
Manuscript Library, Columbia University. Jay wrote: "In 1838 the question oc-
curred to me, under what constitutional grant of power Congress has passed the
fugitive slave law of 1793. I was not aware that the question had been mooted
before." On the friendship between the two families, see Jay to Hornblower,
August 12, 1851 ,Jay Family Papers, thanking Hornblower for his support "Your
commendation is necessarily valuable to all who are honored by it, but to me it
is peculiarly so, as coming from my Father's friend." Letters from Jay Family
Papers are cited and quoted with permission of the Rare Book and Manuscript
Library, Columbia University.
3. Opinion of Chief Justice Hornblower on the Fugitive Slave Law ( [New York]:
[New York Evening Post], [ 1851 ] ); reprinted in Fugitive Slaves and American Courts:
The Pamphlet Literature, ed. Paul Finkelman (New York: Garland, 1988), 1:97-
lo 4. (hereinafter cited as Hornblower Opinion). This is an incomplete report
of the case but the best that exists. The text of this pamphlet is exactly the same
as an article appearing in the New York Evening Post on August 1, 1851. The type
and fonts for both also seem to be identical. It appears that the pamphlet was
printed from the fonts of the Post, and logically it would have been published by
the Post.
4. Ex parte Bushnell, Ex parte Langston, 9 Ohio St. 77, at 2o5, 227, 321
(1859).
5. There is no good history of slavery in New Jersey. Helpful early studies
include: Henry Schofield Cooley, A Study of Slavery in New Jersey (Baltimore:Johns
Hopkins Press, 1896); Marion Thompson Wright, "New Jersey Laws and the
Negro,"Journal of Negro History 28 (1943) : 156-99; Simeon E Moss, "The Persis-
tence of Slavery and Involuntary Servitude in a Free State (1685-1866)," Jour-
nal of Negro History 35 ( 195o): 289- 314. The most important modern contribu-
t_ion to this literature is Arthur Zilversmit, "Liberty and Property: New Jersey
and the Abolition of Slavery," New Jersey History 88 ( 197o): 215-26; reprinted in
Slavery in theNorth and the West, ed. Paul Finkehnan (New York: Garland, 1989) ,
485, 491-96. Also useful is Francis D. Pingeon, "Dissenting Attitudes toward the
Negro in New Jersey," New Jersey History 89 ( 1971 ) : 197-22 o.
6. The society did not formally draft a constitution until 1793, when mem-
bers of the older Pennsylvania Abolition Society came to Burlington, New Jer-
sey, for the formal signing of the Constitution of the New Jersey Society. Arthur
Zilversmit, The First Emandpation: The Abolition of Slavery in the North (Chicago:
University of Chicago Press, 1967) , 173.
7. Act of Feb. 15, 18o4, 1811 NJ. Laws lo3-o 9 ("An Act for the Gradual
Abolition of Slavery"), published as Laws of the State of New Jersey, Compiled and
Published under the Authority of the Legislature 1 o3-o9, (Joseph Bloomfield, ed.,
Trenton: James J. Wilson, 1811). Act of March 1, 178o, 181o Pa. Laws 1,492-
93 (Philadelphia: Bioren,
8. Act of Mar. 29, 1799, ch. 62, 1799 N.Y. Laws 388 ("An Act for the Gradual
Abolition of Slavery"). Act of Mar. 31, 1817, ch. 137 , 1817 N.Y. Laws 136 ("An
Act relative to slaves and servants"). See State v.Post and State v. Van Beuren,
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9. Statutes of the State of New Jersey. Revised and Published under the Authoqy of
the Legislature 567-72 (Trenton, Phillips and Boswell, 1847), later reprinted in
Digest oftheLaw ofNewJersey 8o1-1o (Lucius Q. C. Elmer ed., 3 d ed., Bridgeton,
Elmer and Nixon, and Trenton; C. Scott, 1861).
lo. Clement A. Price, Freedom Not Far Distant: A Documentary History of Aft'o-
Americans in New Jersey (Newark: New Jersey Historical Society, 198o), 92; Pingeon,
"Dissenting Attitudes toward the Negro in New Jersey," 198-99.
11. Benjamin Drew, A North-Side View of Slavery. The Refugee; or, The Nar'a-
tires of Fugitive Slaves in Canada (Boston: John P. Jewett, 1856), 33-34.
12 2 Annals of Cong. 861 (debate of Feb. 5, 1793). 4 Annals of Congress,
1767 (debate ofJan. 2, 17 97 ) ; Journal of the House, 4th Cong., 2d Sess. 67. Paul
Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson (Armonk,
N.Y.: M. E. Sharpe, 1996), 8o-lo4.
a3.4 Annals of Cong. 2o24.
14 . These states, along with Virginia, had been the only ones to consistently
oppose the slave trade compromise at the Constitutional Convention. Finkelman,
Slavery and the Founders, Chapter 1, "Making a Covenant With Death: Slaver},
and the Constitutional Convention," 1-33.
15 Zilversmit, "Liberty and Property," 225. On Jefferson's Negrophobia,
see Winthrop Jordan, White over Black: American Attitudes" towards the Negro, 55 o-
? 8z (Chapel Hill: University of North Carolina Press, 1968); Finkelman,
Slavery and the Founders, lo5-168. While beyond the scope of this essay, it may
be noted that the change in direction for New Jersey after 18o 1 suggests that
the slaveholding majority in Jefferson's party led to the creation of northern
doughface Democrats long before the antebellum period.
16 Act of Mar. 2, 1786, 1786 NJ. Acts, published as Acts of the Tenth General
Assembly of New Jersey... . Second Sitting (Trenton, 1786). The fines were fifty pounds
for slaves imported from Africa since 1776 and twenty pounds for other blacks.
Visitors and transients were exempt from the duty as long as they removed the
slave from the state. This act is discussed in Cooley, A Study of Slavery in New
Jersey, 18-19. In Statev. Quick, 2 N.J.L. (1 Pennington) 393, 413 e (18o7), the
New Jersey court refused to free a slave who was illegally exported from New
York into New Jersey.
17. Act of Mar. 2, 1786 supranote 17.
18. Act of Nov. 25, 1788, 788 NJ. Acts 13,486-88. For one example of a
Southerner prosecuted for teaching free blacks to read, see The Personal Narra-
tive of Mrs. Margaret Douglass, A Southern Woman, Who Was Imprisoned for One Month
in the Common Jail of Norfolk, under the Laws of Virginia, for the Crime of Teaching Free
Colored Children to Read (Boston:John EJewett, 1854); reprinted in Slaves, Rebels,
Abolitionists, and Southern Courts: The Pamphlet Literature, ed. Paul Finkelman (New
York: Garland, 1988), 2:373-439. Zilversmit, First Emancipation, 159, and gener-
ally, Zilversmit, "Liberty and Property."
19. An Act to Authorize the Manumission of Slaves," ch. 61, 1782 Va Laws.
See Robert McColley, Slavery in Jeffersonian Virginia (Urbana: University of Illi-
nois Press, 1972) .Jonathan Elliot, ed., The Debates in the Several State Conventions,
on the Adoption of theFederal Constitution, 2d ed. (Washington: Printed for the
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Slaves"). Leon E Litwack, North of Slavery (Chicago: University of Chicago Press,
96), 7 o, cites this law as an example of northern negrophobia. However,
Litwack has failed to realize or acknowledge that at the time New Jersey adopted
the law it was a slave state, and that for a slave state this was an unusually progres-
sive law. For a discussion of the problem of understanding Northern law and
race relations, see Paul Finkelman, "Prelude to the Fourteenth Amendment:
Black Legal Rights in the Antebellum North," 17 Rutgers Law Journal 415, at
432-34 (1986).
2. Act of Mar. a 4, 798, 27, 1798 N.J. Laws, 4-7 ("An Act Respecting
Slaves").
22. Act of Feb. 15, 18o 4 ("An Act for the Gradual Abolition of Slavery");
Act of Mar. 8, 8o6 ("An Act to repeal the third section of an act entitled 'An act
for the gradual abolition of slavery,' passed the fifteenth day of February, eigh-
teen hundred and four"); Act of Nov. 28, 18o8 ("An additional supplement to
the act entitled 'An act for the gradual abolition of slavery.'") Act of Feb. 22,
81 ("An Act concerning the Abolition of Slavery"); Act of Dec. 3, 18o4 ("An
Act supplementary to the act respecting slaves") All published in 181 NJ. Laws
(supra note 7) l?3-9, 4-43 ?
23. Wright, "New Jersey Laws and the Negro," 79. Act of Feb. 24, 182o, ?
11-21, 82o N.J. Laws 74-8o ("An Act for the gradual abolition of slavery, and
for other purposes respecting slaves"). Masters moving out of the state could
take slaves with them only if they had lived in the state for the previous five
years, had owned the slave during that time, and had obtained the slave's con-
sent to the move. On slave transit in New Jersey, see Paul Finkelman, An Imperfect
Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina
Press, 1981 ), 7 , 76-77, 83.
24. Starer. Heddon, 1 N.J.L. ( Coke) 328 (1795). Heddon was the jailer
who held Cork.
25. Nixonv. Story's Administrators, 3 N.J.L. (2 Pennington) 722 (1813).
26. Gibbonsv. Morse, 7 N.J.L. (2 Halsted) 253 (1821); Cutterv. Moore, 8 N.J.L.
(3 Halsted) 219 (1825).
27. Gibbonsv. Morse, supra note 26, at 27 o. Cutterv. Moore, supra note 26, at
225. In Boicev. Gibbons, 8 N.J.L. (3 Halsted) 324 (826), the New Jersey court
retreated slightly from this position, implying that being black might not lead to
a prima facie assumption of slavery. See also Foxy. Lambson, 8 N.J.L. (3 Halsted)
366 (1826).
28 Act of Dec. 26, 1826, NJ. Laws 5 ("A Supplement to an Act entitled
'An Act concerning slaves'"). Hornblower Opinion at 4.
29. Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North,
78o-z86 (Baltimore: Johns Hopkins University Press, 974), 57. Unfortu-
nately, Morris does not discuss or analyze the New Jersey law. Priggv. Pennsylva-
nia, 41 U.S. (16 Peters) 536, 539 (1842). In the Constitutional Convention
James Wilson of Pennsylvania asserted that one purpose of the states was "to
preserve the rights of individuals." Similarly, Oliver Ellsworth of Connecticut
explained that he looked to the state governments "for the preservation of his
rights." Max Farrand, ed., Records of the Federal Convention of z 787 (New Haven:
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one was complicated by the length of time Helmsley had lived in New Jersey, the
roots he had put down, and the fact that his children had been born in a free
state and thus were free persons.
31. "Upholding Slavery," 2o TheFriend281-82 (June 11, 1836 ).
32. Application for writ of habeas corpus, in Helmsley Case file. "Uphold-
ing Slavery," 281-82. Pordons of this article are reprinted as "Important Deci-
sion," The Liberator, July 3 o, 1836, 124. Helmsley did not admit he was a fugitive
slave until after Chief Justice Hornblower had released him and he had moved
to Canada.
33. "Upholding Slavery," 281-82. Application for writ of habeas corpus in
Helmsley Case file.
34. Hornblower Opinion at 1.
35. Ibid., at 4.
36 . Ibid.
37. U.S. Const. art. IV, ? 3, ? 2, "The Congress shall have Power to dispose
of and make all needful Rules and Regulations respecting the Territory or other
Property belonging to the United States .... "
38. Hornblower Opinion at 4-5.
39. Ibid., at 5-
4 ? . Ibid.
41. Ibid., at 6.
42. Ibid.
43. Ibid.
44. Ibid., at 6, 7.
45. Wright otherwise called Hallv. Deacon, Keeper of the Prison, 5 Serg. & Rawle
62 (Pa. 1819). The United States Supreme Court would not decide a fugitive
slave case until Priggv. Pennsylvania, supra note 32.
46. Wright v. Deacon at 63-64. The fugitive slave clause was added to the
Constitution late in the Convention, with little debate and with no demands
made by southerners for it. Rather, it seems to have been something that a few
southerners wanted and that no northerners opposed. See Finkelman, Slavery
and the Founders, Chapter 1. For a discussion of the failure of intentionalists as
historians, see Paul Finkelman, "The Constitution and the Intentions of the
Framers: The Limit of Historical Analysis," 5 ? University of Pittsburgh Law Review
349-398 (1989).
47. Hornblower Opinion at 6.
48. InJackv. Martin, 12 Wend. 311 (N.Y. Sup. Ct. 1834 ) and 14 Wend. 5o7
(N.Y. 1835), the New York court had denied federal power over fugitive slave
rendition while acknowledging the state's obligation to return fugitives under
the Constitutional clause in article IV. Despite the different outcomes of the two
cases, Hornblower's position was relatively close to New York's. In finding the
New Jersey law in violation of the state constitution, Hornblower implied that
he might uphold a valid rendition law adopted by his state.
49. Act of Mar. 26, 1826, 1826 Pa. Laws 15o-55 ("An Act to Give effect to
the provisions of the Constitution of the United States Relative to Fugitives From
Labor, For the protection of Free People of Color, and to Prevent Kidnapping").
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51. Ibid., 55-57. Jackv. Martin, supra note 48, 1834 at 327, 1835 at 512.
Paul Finkelman, "The Protection of Black Rights in Seward's New York," Civil
WarHistory 34 (1988): 211-34.
52. Act of Feb. 15, 1837, 1837 N.J. Acts 134-36 ("A Further Supplement to
an act entided 'An Act Concerning Slaves'"). New Jersey Assembly Minutes, 836-
37 331-32; New Jersey Council Minutes, z836-37 192 , 21o-11.
53- Story wrote:
which they might escape from the state where they were held in servi-
tude. The full recognition of this right and title was indispensable to
the security of this species of property in all the slaveholding states;
and, indeed, so vital to the preservation of their domestic interests and
institutions, that it cannot be doubted that it constituted a fundamen-
tal article, without the adoption of which the Union could not have
been formed.
of a Pro-Slavery Decision," Civil War History 25 (1979) : 5-35, Paul Finkelman,
"Sorting out Pr/ggv. Pennsylvania," 24 Rutgers Law Journal 6o 5 (1993), and Paul
Finkelman, "Story Telling on the Supreme Court: Prigg v. Pennsylvania and Jus-
tice Joseph Story's Judicial Nationalism," 1994 Supreme Court Review 247-94
(1995). 1847 N.J. Laws 567-72, published as Statutes of tile State of New Jersey.
Revised and Published under the A uthority of the Legislature 567-72 (Trenton, Phillips
and Boswell, 1847 ) .
54- Hornblower toJ. C. Ten Eyck, April 186o, Hornblower Papers, box 1,
New Jersey Historical Society, Trenton. Act of Feb. 15, 1837, supra, note 52.
55. "Upholding Slavery," 281-82. The Liberator, July 2o, 1836, 124.
56. "Important Decision," Newark Daily Advertiser, August 18, 1836, p. 2,
col. 1, quoting The Emancipator and the New York Evening Star.
57. Newark Daily Advertiser, August 18, 1836. The Advertiser was apparently
unaware that the story in TheEmancipatorhad originally appeared in TtaeFriend.
58 . Ibid.
59. New Jersey Eagle, August 19, 1836. "The Slave Case," Burlington Gazette,
August 2o, 1836, partially reprinted as "The Slave Case," New Jersey State Gazette,
August 26, 1836. Aristides [pseud.], "Severn Martin," Burlington Gazette, Sep-
tember l o, 1836 , p. 1, col. 2, and "Case of Severn Martin," The Liberator, Sep-
tember 17, 1836, 151. The New Jersey Eagle, a Democratic paper in Newark, praised
the outcome of this case and suggested that purchasing the slave, as was done by
the people of Burlington, "should be imitated in all similar cases; instead of
attempting to defraud the rightful owner of his property." "As It Should Be,"
New Jersey Eagle, August 26, 1836.
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of William Lloyd Garrison, ed. Louis Ruchames (Cambridge: Harvard University
Press, 1971), 2:53. Chase, Speech in the Case of Matilda, 18. Here Chase quoted
from the story about this case in The Liberator, July 3 o, 1836, 24, but did no t in
cite to this story. For a discussion of the Matilda case, see Finkelman, An Imper-
fect Union, 16o-62.
62.Jonesv. Van Zandt, 46 U.S. (5 How.) 215 (a847). Chase's brief was pub-
lished in pamphlet form as Salmon P. Chase, Reclamation of Fugitives from Service
(Cincinnati: R. E Donough, 847), reprinted in Fugitive Slaves and American Courts
I:341-448. Chase to Hornblower, April 3, 1851. Paul Finkelman, Slavery in the
Courtroom (Washington: U.S. Government Printing Office, 1985), 74. See also,
Chase Letterbook, Salmon P. Chase Papers, Manuscript Division, Library of
Congress, for examples of Chase sending out his own briefs and other writings.
63 Hornblower to Salmon P. Chase, April 9, 1851, Salmon P. Chase Pa-
pers, Manuscript Division, Library of Congress.
64 Ibid.
65 William L. Dayton to Hornblower, September 9, 1851, Hornblower
Papers, box 2, New Jersey State Historical Society, Trenton.
66. New York Evening Post, August 1, 185 .
67. William Jay to Hornblower, 17July 185 [ 1 ], typescript copy in Jay Family
Papers, Rare Book and Manuscript Library, Columbia University. The letter is
misdated on the typescript as 185o. See also Jay to Hornblower, 11 July 851, 21
July 1851 , and 29 July 1851 , typescript copies in Jay Family Papers. In the 2
July letter Jay thanks Hornblower for a copy of the manuscript opinion, and on
29July he indicates that the opinion has been "forwarded to... New York, & it
will I trust be soon in print."
68. William Jay to Hornblower, September 3, 1851, typescript copy in the
Jay Family Papers, Rare Book and Manuscript Library, Columbia University.
69. Hornblower Opinion at 7.
7 ? . This term is used in modern constitutional doctrine to support the idea
that state supreme courts may give greater protections to civil liberties and civil
rights than the United States Supreme Court demands, as long as those protec-
tions are based on "adequate and independent state grounds," found within the
constitution of the state. The concept first arose in Murdock v. Memphis, 87 U.S.
(2o Wall.) 59 ? (1874). See also Martha Field, "Sources of Law: The Scope of
Federal Common Law," 99 Harvard Law Review 88, 919-921 (2986). Under
this theory the state courts can expand liberties above the minimum floor set by
the United States Supreme Court's interpretation of the federal Constitution.
See also the essays in Paul Finkelman and Stephen Gottlieb, eds., In Search of a
Usable Past: Liberty under State Constitutions (Athens, Ga.: University of Georgia
Press, 1991).
71 ? Potter, Impending Crisis, 132. In the poem "Ichabod" the poet John
Greenleaf Whittier wrote of Webster:
Still strong in chains.
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The man is dead!
the compromise package of 185o, had sold out all his principles for
the Presidency and his commercial clients.
ion from the New York Evening Post, August 1, 1851. As related in n. 3 above, the
article in the New York Evening Post is identical to the seven-page pamphlet cited
herein as Hornblower Opinion.
74- "The Fugitive Law Beginning to Tumble," New York Tribune, July 1 z,
1854. The Wisconsin case was In re Booth and Rycraft, 3 Wis. 57 (1854), decided
in June 854 and holding that Congress lacked the authority to pass the Fugi-
tive Slave Law of 85o. This was appealed and reversed in Able'man v. Booth, 2
Howard (U.S.) 5o6 (859)."
75. Ex parte Bushnell, Ex parte Langston, supra note 5, at 2o 5 (Peck, J, con-
curring), at 227.
76. Ibid., (Brinkerhoff, J., dissenting), at 321 (Sutliff, J., dissenting). See
generally, Jacob R. Shipherd, History of the Oberlin-Wellington Rescue (Boston:John
E Jewett, 859 ).
77. Cong. Globe, 36th Cong., st Sess., app. 152. Debate of March 7, 86o.
78. Cong. Globe, 36th Cong., st Sess., pt. 2, 1486. Debate of April 2, 86o.
79- Hornblower toJ. c. Ten Eyck, April 186o, and Hornblower to Ten Eyck,
April 6, 86o, Hornblower Papers, box 1, New Jersey Historical Society, Tren-
ton.
8o. Hornblower to Ten Eyck, April 16, 186o.