The Black Law and the Missouri Precedent

George W. Brown

George W. Brown

Sorry for the late post, Gentle Readers. I’ve no idea why it didn’t go up as scheduled.

The winter came in all its fury to Kansas. The Border Ruffians, defeated without battle, went home to nurse their grudges and dream of future mayhem. The people of Lawrence, with militias now bearing Wilson Shannon’s commission, buried Thomas Barber. It all made for a very full month, but December of 1855 had still more to hold. The day before Thomas Barber’s burial, December 15, 1855, the people of Kansas went to the polls. The Free State Party set that as the date for ratification of their constitution. That document barred slavery in Kansas, declared any ownership of people from other states invalid within its bounds, and carried with it the fruit of the difficult coalition between racist antislavery whites and comparatively more enlightened abolitionists. When antislavery Kansas came put the popular into their sovereignty, they had more than the constitution to vote up or down. Separately they would make their will known on the black law.

This, as the Herald of Freedom reminded its readers, made for

The great bone of contention […] One party was desirous of engrafting a feature into teh Constitution excluding every class of the colored population from the Territory, bond or free. Others saw in this a species of oppression, and as for adopting it as a feature of the fundamental law, they were conscious they could never make their way through Congress with such a dead weight attached to that instrument. They had the precedent of Missouri as a land-mark to guide them.

The Missourian precedent went back to the Missouri Controversy, if a lesser known part of it. Congress ultimately let Missouri into the Union with slavery intact and drew a line across the rest of the Louisiana purchase to keep slavery from the lion’s share. The Missourians, displeased at the delay of their statehood on behalf of black Americans, wrote a constitution that excluded any free black person from entry into their state.

This blatantly violated the federal constitution, which guaranteed free movement of the citizens of each state. Some states had given black Americans citizenship, and even the vote. By the letter of the law, they had as much right as any other citizen to come and live in Missouri. Congress balked, passing an impotent amendment insisting that Missouri’s constitution did not do what it said it did but taking no meaningful action on the matter.

Back in the 1820s, Missouri had the advantage. It might get away with such things, but the free state men risked more and in more fraught times. Slavery’s defenders, already sure to put up a dire fight indeed, could throw the words of the free state Kansans’ political fathers against them. On top of that, they risked losing the favor of particularly New Englanders who might otherwise serve as their most loyal partisans in Washington.

Given the circumstances, despite its past condemnation of the law, George Washington Brown’s paper endorsed the constitution. Stephen Douglas, Franklin Pierce, and all the rest promised Kansas popular sovereignty and they would have it.

The President, even, must give it his sanction, else prove false to all his former professions

James Henry Lane

James Henry Lane

Kansas dared. The voters approved the Topeka Constitution 1,731 to 46. As for the black law, the ballot did not strictly pass a law in itself. Rather the election proclamation directed Kansas’ qualified electors to approve or disapprove instructions to the first General Assembly to meet under the constitution’s auspices

providing for the exclusion of free negroes from the State of Kansas.

Such an instruction could come close to law and the voters must have understood it as such. They took their popular sovereignty and voted in its favor 1,287 to 453. New Englanders like Charles Robinson by and large opposed the law, but Westerners like James Lane handily outnumbered them.

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