Three-Fifths: A Capitulation Revisited

Elbridge Gerry

Elbridge Gerry

Gentle Readers, I’ve previously written a mixed assessment of the three-fifth’s compromise. It did not work out as an extremely moderate antislavery measure, but I thought it had that potential when written. I have since learned from Paul Finkelman’s Slavery and the Founders that I have that wrong. On closer examination, it doesn’t even much deserve the label of compromise.

The story I believed works out like this: The South wanted to count 5/5 of its slaves for purposes of representation, but 0/5 of those same slaves toward any tax obligations that the national government levied on the states. The freer states objected, instead avowing just the opposite. The South deserved no reward for enslaving black Americans, but rather ought to undertake additional obligations because it had done so and the North would be called upon to suppress slave revolts should they come. The South would hardly have occasion to return the favor. Thus they split the difference at 3/5 for both and everyone goes home in possession of a settlement their white constituents can live with.

Finkelman looked at the dates and came out with something different. The Constitutional Convention debated the basis for representation at length, as we all learn in school. They eventually agree that representation should flow from population, rather than wealth or land values. Having decided that, they must grapple with who to count. Slaves constitute a substantial part of the Southern population, near half in some states. A great deal hangs on whether they get counted or ignored. The initial plan calls for a count based on free individuals, so no slaves at all.

As soon as this reaches the floor, South Carolina rises to object. Their delegation insists upon counting all the slaves along with the free inhabitants. They do not offer to undertake additional tax liability in exchange, but simply demand that their slave property count as people. The familiar ratio comes out of this, apparently in the hopes of getting ahead of both proslavery and antislavery opinion. In the North, delegates could sell the Constitution on how they prevented full slave representation. In the South, they could argue that they had secured most of what they wanted.

The vote over the ratio occasions little debate, save Elbridge Gerry’s objection:

Blacks are property, and are used to the southward as horses and cattle to the northward; and why should their representation be increased to the southward on account of the number of slaves, than horses or oxen to the north?

One must look at this in context. No slave state counted slaves for representation in their legislatures at the time. The southern delegates didn’t ask for something they already did at home, but a specific and additional security for their human property through disproportionate presence in the Congress, which then carries over into the Electoral College and elsewhere. Those extra votes prove instrumental in every sectional crisis resolved by legislation. As Finkelman puts it

Thus, with little debate, the Convention initially accepted the three-fifths clause as a basis for representation. The clause, giving the South an enormous political leverage in the nation, was accepted without any quid pro quo from the North. Application of the clause to taxation would not come until later in the Convention. Indeed, there was no reason in mid-June to believe it would ever be applied to taxation.

We have something different indeed from a compromise. Instead the framers did just as they and their descendants would spend the next eighty years doing: making capitulations to the South in order to help the section preserve slavery. Only later does the tax liability come into things and it direct taxation of the states falls out of favor right about the time Southerners achieve full control of the government. This restored the original 3/5 compromise: extra power for the South and slavery with nothing granted in exchange. The slave states got, as they usually did, license to put their thumb on the scale of law whilst demanding everyone else abide by the fair weight.

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The Northwest Ordinance: The Nation’s First Antislavery Law?

Dred Scott (Wikimedia Commons)

Dred Scott (Wikimedia Commons)

If you remember and/or have flashbacks to high school history, you may remember the Northwest Ordinance. My own rusty recollection tells me that I learned the Ordinance established the system of land survey and the framework for territorial organization that would see use for the remainder of the march of white Americans across a continent and all the people who already lived there. If you live in a part of the country governed by it or its many descendants, you can probably drive out of town and navigate by a fairly regular grid of roads that owe much to the law. But mainly, the Northwest Ordinance banned slavery everywhere it reached. Thus it established a precedent for future bans on slavery in the Louisiana Purchase and Pacific Northwest. When Dred Scott sued for his freedom, he did it based on his lengthy residence in two jurisdictions where that slavery ban operated: Illinois and Minnesota. A large part of Minnesota did not originally fall in the Northwest Territory, nor even the United States at the time of passage, but legally Minnesota Territory originates in Wisconsin Territory. Wisconsin sits entirely within the Old Northwest and inherited its slavery ban through a few previous territorial enactments that go back to the Ordinance.

Thus we learn in school that the Founders, those great and good men, set slavery on a path to ultimate extinction. Antislavery Americans believed the same thing, from less ideological politicians like Abraham Lincoln to leading ideologists like Salmon P. Chase. An entire tradition of antislavery constitutionalism flows from the words

There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted

David Wilmot

David Wilmot

Restrictions on slavery’s expansion, all the way up to the Wilmot Proviso, use that language. It meant a great deal to people in the nineteenth century and as we, at least officially, declare our sympathy with those same people we carry on their position. It becomes for us, just as it did for them, a usable past. We can rest assured that our nation really did have its conception in liberty and something simply went awry sometime between 1787 and 1860.

Seeking comfort in history may make us human, but doesn’t necessarily make us good historians. What if we have it wrong? Antislavery Americans took the Northwest Ordinance as a precedent and it absolutely functioned as one down the road, but what did it look like in the 1780s? What might its slavery ban have meant to the men who voted for it? And how well did it function? Looking at these questions makes for a far more complicated picture.

We must begin with the ignoble birth of the slavery article. It came into the bill as an afterthought, at the last moment, and passed without debate. If you read the full law, you will find it replete with references to free inhabitants. For that distinction to have meaning, it must mean that the law contemplates the presence of unfree inhabitants: slaves. The law’s authors didn’t see fit to revise it to remove them, but rather voted the slavery ban through without debate that might have shed some light on their understanding of the issue. Thanks, guys.

We can say that the Northwest Ordinance protects the property and inheritance laws of the French inhabitants of the region. They owned slaves and would pass them on by inheritance. Does the property rights provision or the antislavery provision take precedence? The Confederation Congress may not have known that these people had slaves at the time, but when they and eventually the federal government confronted that issue the slavery ban collapsed into a weak ban on importing new slaves to the territory. It freed no one, but rather as a practical matter protected slavery to the degree it already existed in the territory. Nor, perhaps, should we expect otherwise of a law that could win the united votes of the southern states.

Salmon P. Chase

Salmon P. Chase

The point of precedent still matters, but already we have a very qualified precedent that exists more retrospectively and in form than function. We must indict the Northwest Ordinance further, also on the grounds of precedent. These words immediately follow the slavery ban:

Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

The Northwest Ordinance predates the Constitution. Thus here, for the very first time, we have a fugitive slave clause. This grants to the slave states a power they had previously lacked. Until the ratification of the Constitution, a slave who dared steal his or her body and made it across a state line might have just won permanent freedom. No provision existed under the Articles of Confederation for the recovery of fugitive slaves. When the Constitution introduced that power, it became a sticking point for anti-federalists in Massachusetts. If we grant at the Ordinance set an antislavery precedent in principle, we must also grant that it set a proslavery one in practice. Here, for the first time, slavery attains the kind of extra-territorial status which it will have down through the antebellum.

That may well have sweetened the pot enough to keep the South on board with the Ordinance, but the antislavery features of the law found frustration in another way still. The Ordinance did not grant any clear authority to any body to enforce its antislavery ban. You could sue in the courts, petition the government, or act through the legislature to protect property, but only the extremely dubious and generally inaccessible courts remained open for a person enslaved in defiance of the law. I don’t know that any enslaved person tried them when it mattered, but their prospects with a jury or courts established by a constituency that kept asking Congress to repeal the limited exclusion of slavery that did function in the territory can’t have looked good. The Indians had more avenues to defend their rights.

We must also look at what the Ordinance did not do. It did not cover the whole of the west, as a previously proposed version had. By excluding slavery from a marginal region, the South could have understood the ban as cutting off competition for slaves and in tobacco and hemp. No such ban existed in the Southwest Territory, which soon became Tennessee. Nor would any come in the lands to the south of it. Partitioning the west and surrendering the least appealing part of it might well have looked like a bargain to ensure slavery elsewhere, particularly as southerners proved more energetic in westward expansion during the very early republic. Kentucky and Tennessee both gain statehood in the eighteenth century, a distinction shared in the North only by Vermont.

This leaves us with a Northwest Ordinance that served as an important legal and rhetorical touchstone for the antislavery movement, fair enough. But the facts on the ground on either side of the Ohio or the Appalachians don’t really support an unqualified assertion that it set the nation on a path toward abolition. Rather, looked at in detail and in context, the Northwest Ordinance appears more like the other kind of precedent: an ambiguous law that does little to restrict slavery in practice while trying harder to reinforce and defend it. We might call it the first proslavery-tilting antebellum compromise as easily as the first antislavery law.

New England and the Slave Trade to 1808

Something different today, Gentle Readers. I undertook a light research project the past few weeks, at the suggestion of one of the mods over at Reddit’s AskHistorians. African slaves did not arrive in the New World on their own. It took Africans capturing and enslaving them, moving them to ports, and then Europeans buying and transporting them across the ocean. The lion’s share of that traffic in the later decades of the Atlantic trade took place on British-flagged vessels until 1808, and thence forward under Portuguese registry. Every seafaring power got a finger in the pie at some point, the United States included. Most of the American vessels that plied the trade did not, as one might imagine, come from South Carolina. Instead, slavers hailed primarily from New England. Yankee shipwrights built their vessels, owned them, crewed them, invested in them, and profited from their voyages. Did that investment have any influence on the eventual debates over banning slave importation on January 1, 1808? I set off to find out. I also used a more conversational, casual tone than I usually do here.

 

The Short Version

It’s complicated and the context matters. The short version is “probably a little, but some and some decisive stuff back earlier.” Ok then, everyone’s satisfied so we can all go home, consume the beverages of our choice, and call it good. Or we could go deeper.

The Long Version

Right then, let’s roll the clock back to Philadelphia, 1787. It’s summer, that time of year when rich white guys sit down to fix the Articles of Confederation, good and hard. The Committee on Detail gets to work based on general things settled by the convention. Its members are John Rutledge (SC), Edmund Randolph (VA), James Wilson (PA), Nathaniel Gorham (MA), and Oliver Ellsworth (CT). That’s two New Englanders, two Southerners, and a dude from Pennsylvania. The rest of the convention takes a break while they go to work, but not before Charles Pinckney (SC) tells everybody that

“that if the Committee should fail to insert some security to the Southern States ag[ain]st an emancipation of slaves, and taxes on exports, he sh[oul]d be bound by duty to his State to vote ag[ain]st their Report.”

Waldstreicher, David. Slavery’s Constitution: From Revolution to Ratification (p. 89). Farrar, Straus and Giroux. Kindle Edition.

As if they could have forgotten.

The Committee on Detail’s report bans taxes on exports and slave imports, and by the way there’ll be no banning of those slave imports either. A few clauses down is a requirement for a two-thirds majority to pass any acts which would regulate trade, “navigation acts” in the parlance of the time. That first appears in Rutledge’s hand. Together this tilts wildly Southern: The South’s exports can’t be taxed. Its slave imports can’t be taxed. What can the South do that would get taxed? It’s either excise taxes, which had gone not so well previously, or a tax on imports that be a drain on shipping. Who did the shipping? New England, New York, and Philadelphia, mostly.

This was enough to get some pretty serious debate going. The arguments against involved much of the obvious: the Constitution they were drafting was proslavery. The 3/5 compromise would promote slave imports, since the South could literally buy votes in the House and Electoral College. If slavery weakened the South by requiring more military spending to keep it together, as the section sometimes argued, then the whole union would be on the hook. And really, we fought a revolution for freedom and now we’re going to protect slavery?

Rutledge, who chaired the Committee on Detail, gets up and argues otherwise: Hey, we’re not saying import slaves. We’re saying importing slaves shouldn’t be forbidden. Two, the South doesn’t need your dirty Yankee help protecting itself. The fact that we’re all paranoid about slave revolts and sore at how the British made off with so many of our slaves? Doesn’t count. But ultimately:

Religion & humanity had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is whether the South[er]n States shall or shall not be parties to the Union. If the Northern States consult their interest, they will not oppose the increase of Slaves which will increase the commodities of which they will become the carriers.

Waldstreicher, David. Slavery’s Constitution: From Revolution to Ratification (pp. 94-95). Farrar, Straus and Giroux. Kindle Edition.

Rutledge said what everybody knew. There was a kind of alliance between New England and the Lower South operating. Ellsworth helped prove it by calling the antislavery element out for hypocrisy. If slavery was wrong, why were they just banning the import of slaves? This from a guy from Connecticut.

The convention soon found they were at a serious impasse, so they got together another committee to work out a compromise: Yes to a tax on slave imports but it couldn’t go higher than the average of existing duties. No ban on slave imports permitted until 1800. Cool? Not cool. South Carolina moved to kick the date back to 1808. The change passed with the votes of New England, the Lower South, and Maryland.

Since New England was being so nice about the slave trade, the Carolinians flipped on the navigation act clause, which was then deleted. We end up with this, the slave trade clause:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

New England gets commerce-regulating power that it wants and the Lower South does not. The Lower South and New England team up to save the slave trade they’re both interested in.

As everything subsequent in this post flows in one way or another from those words, let’s unpack them a little. You have the usual constitutional circumlocution around slavery. The framers were sensitive to the notion that the Constitution would not explicitly sanction what they called “property in man”. This fooled no one, but the distinction would eventually become very important in antislavery constitutionalism largely thanks to the efforts of Salmon P. Chase and James G. Birney, but getting well outside the scope of the question. (Fair game for follow-ups or subsequent questions, of course.)

The key parts:

  1. Congress will have the power, come 1808, to impose a total ban on the importation of slaves to the United States.
  2. Congress does not have that power until 1808, though it may impose a tax of up to ten dollars a head on such imports. Congress could literally make that the first act of the first Congress, pass it on the first day, and have it be the first thing to cross George Washington’s desk.
  3. The clause applies to states, not to the United States in general. Congress can do whatever it likes with regard to territories. It can even ban taking slaves already in the US into territories. It will do so, banning the import of slaves to the Northwest, Mississippi, and Orleans Territories. Only the first of these bans is well known, and then as an absolute prohibition. That’s how it was written, but the choice of the first governor and indifference in Washington ensured it was never more than a questionably-secure ban on imports. The bans on imports to Mississippi territory (modern MS and Alabama, mostly) and Orleans (Louisiana, naturally) were more explicitly that, but only in effect briefly and are allowed to lapse. These precedents are relevant to later antebellum stuff, but again that takes us well past the bounds of the question.
  4. The clause allows Congress to exercise its power to ban the importation of slaves to the United States in general on, or at any point after, January 1, 1808. It’s not required to do so on that date or any other.
  5. None of this requires states to import slaves. All of them had enacted bans on it during the Revolution as part of the non-importation movement. But those bans were state law and could be reversed. They would be by Georgia (1787-98), North Carolina (1790-4), and of course South Carolina (1805-7).

 

Incidentally, all of these constitutional provisions are unamendable. They’re entrenched in the Constitution to exactly the same degree as the two senators per state rule.

Josiah Parker

Josiah Parker

That’s the lay of then land when the first Congress gets together. It took them literally thirteen days into the Washington presidency to get into a fight over slavery. Josiah Parker, of Virginia, got up in the House and suggested: hey, we have the authority in plain English to impose a ten dollar tax on slave imports right now. Why don’t we tax the crap out of them? In the ensuing debate representatives from Georgia and South Carolina made arguments that sounded downright 1850s, up to and including early attempts at a positive good defense of slavery. James Jackson (no relation that I’m aware of to Andrew or Thomas) of Georgia condemned it as “the most odious tax Congress could impose.”

That’s very far from New England, though. Roger Sherman, of Connecticut Compromise fame (and, you know, Connecticut) opposed Parker’s proposal on the grounds that it was an amendment to a general tariff bill. It really ought to come as its own bill, even though a tariff is exactly what Parker was proposing. The objection might sound a little suspicious, and maybe it was, but it was held so generally in the House that Parker agreed to withdraw his amendment and resubmit it as a freestanding bill.

Parker’s tax came back up and the House voted to postpone it to the next session, at which point it would get mixed up in a firestorm over antislavery petitions from some Quakers and Ben Franklin who also wanted the Congress to do something about the slave trade. Franklin’s petition asked that they “step to the very verge” of their power and…and maybe think about freeing any slaves illegally imported? The prospect of the United States government turning into an agent for active emancipation must have been wildly popular in the South, right? You’d expect the kind of slightly manic cheer that fills media aimed at very young children or certain hygiene products. History’s full of heartbreaking stuff, though. The Lower South went ballistic.

It didn’t get them much. A House committee took in the petitions and reported out a summary of Congress’ powers with regard to slavery. That report laid out much of what I summarized above, particularly that no ban would come before 1808. It also established accepted constitutional wisdom, even by Republicans, all the way to 1860:

  1. The Congress had no power to interfere with slavery in any way within the bounds of a state, either to emancipate the slaves or to regulate their treatment. However…
  2. Congress had the power to prohibit US citizens from carrying slaves to foreign ports and
  3. Could prohibit foreigners from setting up slavers for voyages in US ports, plus
  4. Congress could set standards for the treatment of slaves on ships bound for the US.

This report didn’t become law of any kind; the Senate never signed off on it. But the House as a whole endorsed it, over Southern objections, and antislavery societies took it as a how-to for their future slavery fighting.

Let’s look at items #2 and #3. This is a part of the slave trade that is almost invisible in the story of American antislavery, but it’s an important one. Remember above that the Constitutional restrictions apply to importation of slaves to the United States. They do not apply in any way to operations in the carrier trade, taking slaves from Africa to Cuba (mostly), the West Indies (number two), or ports in South America (fairly rare, but it happened).

That’s actually where most American slavers did their business. They were primarily New Englanders. We can narrow that down still further. The majority of American slave ships (~70%) were owned and built in Rhode Island. There were operations elsewhere in New England and in New York that registered on the contemporary radar, but the Rhode Islanders were conspicuously all over this. The trade was a major factor in their state’s economy in a way that it no longer was elsewhere, if it had ever been. (I honestly don’t know. Colonial-era slaving is well outside my expertise.) About two-thirds of their voyages brought slaves from Africa, mostly in exchange for rum distilled right back home in the smallest state, and took them to the Caribbean. The other third supplied the American South, but most slave imports to the United States arrived on foreign ships.

So here we have an explicit declaration of congressional power over a trade which isn’t actually that important to the South, since they get their slaves from foreigners, and which limiting would only really hurt Rhode Island. Thus, there’s some real action…eventually. Congress took until 1794, but then they passed the Slave Trade Act of 1794. George Washington put his John Hancock on it on March 22.

What’s the law do? American citizens, and anybody setting out from a US port, are prohibited

for himself or any other person whatsoever, either as master, factor or owner, build, fit, equip, load, or otherwise prepare any ship or vessel […] for the purpose of carrying on any trade or traffic in slaves, to any foreign country; or for the purpose of procuring, from any foreign kingdom, place or country, the inhabitants of such kingdom, place or country, to be transported to any foreign country, port, or place whatever, to be sold of or disposed of, as slaves

Do that particular dirty deed and your ship and all its accessories could be libeled, condemned, and forfeited to the United States in whatever district or circuit court happened to have jurisdiction. Furthermore, if you were involved with this sort of business, or aiding and abetting, you would take a $2,000 fine to be split between the United States and whoever prosecuted you. If you were a owner or master of a ship and even looked dodgy, and someone reported you to the customs officials, you could be required to swear an oath and give a bond that you would not embark any African or other natives to take elsewhere and sell as slaves for the following nine months. Congress wasn’t quite done yet. It also assessed a $200 per-head fine on any slaves you tried to traffic in, again split halfsies between the US and the prosecution.

You might anticipate a big controversy here and a law that just squeaked by, but it doesn’t seem so. I went looking for debates and the roll-call vote on the measure, but couldn’t find them. Don Fehrenbacher tells me that the law got “ready acceptance […] in both houses”. I’m inclined to believe him, but his footnote led me to a dead end. This is all in the Annals of Congress, which were compiled retrospectively from newspaper accounts decades later rather than recorded live, as it were. So it’s possible a debate happened and no one took much notice, but I’ve spent a couple of hours looking and I can’t even give you the vote totals. Beats me. (If anybody has found records of this stuff, please let me know; I’m desperately curious.) The law was, Fehrenbacher says, the result of some very carefully written antislavery petitions. In particular, they took great pains to avoid any request for abolition.

So the 1794 act becomes law. It’s not the most draconian thing, but the fines are quite high. It lacks for a good enforcement regime, though. Basically you’re looking at private prosecutions, which half the fine would buy the government. Those would mostly have to happen in the very places where the trade was most popular and its wealthy practitioners most influential. Long odds, right? Maybe, maybe not. It was enough to get Cyprian Sterry, one of Providence’s slaving bigwigs, to quit the business when the local antislavery groups promised to come after him.

And then there’s John Brown. No, not that John Brown with the wild beard and the badass mural in Kansas. (But seriously, look at that mural!) John Brown of the Brown University Browns. John Brown is having none of this crap about fines. The Congress can take its slave trade act and shove it. He’d been doing the same thing with Rhode Island’s state law against slave trading voyages since 1787. He sent a ship, the Hope, off a-slaving. Hope called at the Guinea coast, bought some people, and took them off to Cuba where the sale of the 229 survivors turned a handy profit.

Brown had clearly fitted out and set off a slaving voyage. His brother Moses, a Quaker convert, and the local Abolition Society came after him in a private prosecution. They made it their business to do this, but usually things got to the point where someone would sign an agreement to renounce the trade (as Sterry did) and they would drop the prosecution. Negotiations to that end did not budge Brown at all. Moses threatened him with more than the loss of an older ship if he kept at things, but Brown sucked up the loss of the Hope. Eventually it became clear that Brown was trying to push things to trial. If someone got nailed for illegally importing slaves they would have to face a jury, and a Rhode Island jury would probably not convict. Once that became an established fact, the law would be a dead letter.

Thomas Jefferson

Thomas Jefferson

Which it was, for the most part. The Washington administration did not bend over backwards to see the law enforced. Rhode Island’s commerce dipped for a year after passage, but then came right back. Between 1794 and 1804, Rhode Island saw twenty-two prosecutions but we know of at least two hundred voyages to Africa in the same time. It seems that the volume of the trade significantly increased after it became illegal. Good lawyering, friendly juries, and occasional intimidation kept it safe until Jefferson appointed one of the big name slavers to the customs post at Bristol in 1804. Shockingly, African clearances from there shot way up. Prosecutions did not.

I told you most of that to set this up. Come 1800, things are looking a little better for the 1794 law. The Adams administration is encouraging prosecutions and has a few ongoing. Congress decides to revisit things and improve on the old law with a supplementary bill. This one is going to jack the fines (double the value of vessels forfeited and price of the slaves), outlaw investment in slaving ventures (at the pain of losing twice your stake in them), and if you’re actually on the ship you could get two years’ jail. This applies to Americans doing their own trading destined for foreign ports, as well as Americans on board or investing in foreign vessels. If the Navy, or equivalent, does the capturing then its officers and crew are entitled to prize money. And if a private prosecution brings any of this about, the fines go halfsies to the US and the accuser again.

By this point, John Brown is 50% of Rhode Island’s House delegation. He has some things he needs to say. Quoting from the Annals of Congress here:

it [was] improper to prevent the citizens of the United States enjoying the benefits of a trade enjoyed by all the European nations. […] Many members of the House, he observed, knew how the former act was passed; they knew that Congress was drilled into it by certain persons who would not take *no* for an answer. It was well known that the Abolition Society, otherwise the Society of Friends, as they were called, were very troublesome until they got that act passed.

Cheeky of him to name the outfit his brother was a member of, and which had prosecuted him, by name. Brown went on to say that no American law forbade exporting Africans from Africa. So why not just let Americans take Africans where they pleased? Better to enjoy the proceeds than leave money laying on the table. They were slaves either way, ok? Cutting Americans out of such a lucrative business was just bad policy and, anyway:

it was wrong, when considered in a moral point of view, since, by the operation of the trade the very people themselves much bettered their condition.

He said it. Having crossed that Rubicon, which pitched him all the way down with the Lower South, Brown noted that Congress could fill up the Treasury with slave-produced revenues. Far better to do that then debt finance things, right? And it’s not like US law would prevent “one more slave” from being taken. It would just be some foreigner that did the taking. With distilleries idle, why not have the rum go off to buy people? Brown

had been well informed that on those coasts New England rum was much preferred to the best Jamaica spirits, and would fetch a better price.

This is, as I mentioned before, literally how Rhode Island bought slaves. Brown had been well informed by his own ledgers. I don’t know about Brown personally, but some of the traders owned their own distilleries.

I don’t know that any other New Englander spoke in opposition to the 1800 law. It passed on on May 10, 1800, clearing the house with all of five votes against. Who are those guys? Brown, of course, George Dent (MD), Joseph Dickson (NC), John Rutledge Jr. (SC), and Benjamin Huger (SC). It’s by no means a prefect indicator, but the fact that Brown alone votes against the bill paints him as a pretty marginal figure. The commerce is mostly a Rhode Island affair and the other Rhode Islander in the House didn’t vote against it. But one does have to consider that all previous acts turned out to be paper tigers. Even forfeited ships often got bought back by their previous owners for pittances. The 1800 revisions had as much effect as the 1794 original: a brief downturn followed by resumption and increase of voyages. Between the international situation and American non-enforcement, the US share of slave exports from Africa goes from an estimated 2% (1780s) to 9% in the following decade and then 16% for the first Jefferson administration.

Stephen Row Bradley

Stephen Row Bradley

Skipping a few minor episodes (making imports of slaves to a state that has closed the trade a federal offense that inspires SC, along with the money to be made importing slaves for further transit to Louisiana, to reopen the trade and a revival of the ten dollar tax that goes nowhere in retaliation against SC) we get to 1808…almost. We have to come up for a moment in December of 1805, when a New Englander gets conspicuous again. Stephen Row Bradley, of Vermont, gets up in the Senate and suggests they get cracking on a bill to prohibit slave imports, effective the first of 1808. The time might have seemed ripe, with states calling for a constitutional amendment to permit banning slave imports then and there not that long before, but Bradley’s proposal was taken as too soon all the same. There’s an undercurrent of doubt in all of this as to whether it’s proper for Congress to even consider an import ban before 1808, let alone years in advance.

December, 1806. Jefferson’s annual message (the equivalent to our State of the Union) recommends that Congress get an import ban together, effective January 1, 1808. Jefferson defended getting it done in advance on the grounds that it would mitigate against catching any vessels en route who may have started out legal but become illegal in passage. Bradley introduces his bill on December 3. There’s a broad consensus that now’s the time to do something and a ban should happen at the first available moment. Southerners even carp at the suggestion that they want anything else. The fights start over the details, with there being three big ones:

  1. What to do with people imported illegally? Should they be freed? If so, what does the nation do with them? Take them home? Settle them somewhere? Or do they remain slaves to be sold at auction? And if so, by whom? Was the federal government to become a slave trading operation? (Decided by the local jurisdiction, which meant kept as slaves and sold by state governments in the South.)
  2. What kind of penalty should violators face? (Original version: fines and forfeiture. Seen by most of the North as too little. Amended: death. Split the North, with many feeling it was too much. Final version: jail time.)
  3. Should Congress regulate the domestic maritime trade in slaves? Later on, this is often called the coastwise trade. Most of it runs from the Chesapeake to South Carolina, Georgia, and eventually Mobile and New Orleans. (Yes, but not much.)
John Randolph

John Randolph

These debates are not heavily studied, at least as of Matthew Mason’s Slavery Overshadowed: Congress Debates Prohibiting the Atlantic Slave Trade to the United States 1806-1807 (2000). Even contemporaries paid far more attention to other issues, despite often fiery rhetoric. The distinction is very much sectional, though Mason notes that the South prevailed as usual with the help of some northern cooperation. He doesn’t call out any New Englanders as conspicuous. This nuts and bolts wrangling took place in the House. The Senate recorded no debates or votes -thanks a lot, jerks-. Peter Early (Georgia) and John Randolph (Virginia) were conspicuous on the southern side, but if there was a particular locus of resistance in the New England delegations Mason doesn’t note it and I think he would have.

On the key vote as to what would happen with those people imported illegally, the House came to a 60-60 tie broken by the Speaker (Nathaniel Macon, NC). It got to that point with thirteen northerners voting against their section, eleven of them from mid-Atlantic states. They were Joseph Clay (PA), Henry Livingston (NY), Josiah Masters (NY), Gurdon Mumford (NY), John Russel (NY), Martin Schuneman (NY), Uri Tracy (NY), Phillip Van Cortlandt (NY), Killian K. Van Rensselaer (NY), Daniel C. Verplanck (NY), Eliphalet Wickes (NY)

What about those other two? I had to do a little hunting here, since it’s one of those things where you have to figure out which side is which and which is the relevant vote. It’s here. My method: I recognize the names of several southerners on sight, particularly the hard-liners, and know the section voted pretty solidly one way. So we want the nays. To be doubly-sure, and do the further sifting, I compared the nays with the roster here (PDF). I came out with, in addition to the previous list, Samuel Tenney (NH) and Peleg Wadsworth (MA).

Both are New Englanders, though neither is a Rhode Island man. I don’t know if Tenney and Wadsworth had any personal or constituency connections to the slave trade or not. This isn’t quite an up or down vote against slavery, though it’s close, so there may have been tactical considerations involved too. The strong New York connection to southern interests, political and economic, must be a factor for the others. New York’s remaining slave population might have served as another, but I’ve got my doubts considering they can’t have expected a whole lot of slavers to aim for their ports and so end up depositing human cargo locally where it would matter on a personal level that much. What slave ship is going to take a hold even partially full of people to a state that passed gradual emancipation in 1799 when there are so many more hospitable and profitable ports?

Which brings us to regulation of the coastwise trade, with the question being whether to limit the trade to vessels displacing forty tons or more. Twelve Upper South men voted for it, only ten northerners opposed. This was a significant limitation, as while an Atlantic-going slaver would run around 158 tons, the coastwise trade involved mostly vessels smaller than that.

So let’s fine those dissenting Yankees again. The vote is here. We want the Nays. There are seven repeat offenders from the last vote here: Josiah Masters (NY), Gurdon Mumford (NY), Martin Schuneman (NY), Samuel Tenney (NH), Uri Tracy (NY), and Killian K. Van Rensselaer (NY). That leaves us three to find. They are Silas Betton (NH), Martin Chittenden (VT), Samuel Dana (CT). One wonders just what Martin Chittenden and Stephen Bradley said to each other when they got home.

So there’s four New Englanders in the mix, counting Tenney with the three new arrivals. That’s not a lot (35 New England reps total, 20 of them Federalists) but it is something. The New England of the very early 1800s is not the New England of the 1840s and 1850s. It’s a place where antislavery is popular, but it’s not the region-defining thing it would be in future years. That begins to emerge when it becomes clear that the Federalists are done as a national party and they don’t need to be appealing to enslavers anymore as their partners in Virginia and South Carolina in particular are no longer interested. I don’t know what’s going on with the Chittenden in Vermont at all, and Rhode Island is conspicuous in its absence (both RI reps are Republicans at the time, so maybe party whip and certainly the impotence of previous laws would be a factor), but they must have had their reasons. The state didn’t lose interest in slave trading for a while yet hereafter.

I fired up my Biographical Directory of the United States Congress to see if there was a partisan angle. All four are federalists. Party lines aren’t as hard as they would become, but they could be looking to keep alive a national Federalism by resisting Jefferson’s program in hopes of wooing back southern coalition partners. But it’s only an inclination, against the general trend of their party’s vote, and it’s not too long after this that the party try to position themselves as a New England sectional party with an antislavery bent. On the balance, and absent any meaningful biographical data about them, I don’t think partisanship is the main factor. I can’t say for sure that there are personal or constituency interests driving them, but it seems likely.

I haven’t gone looking in the debate myself to see if any of the against-the-grain guys spoke up in an interesting way, but between my sources I think if they said anything useful and it survived, I’d have seen it quoted. It’s rare for them to even be mentioned by name. Mason notes that for all the fireworks in Congress, the slave trade prohibition doesn’t seem to have drawn many eyeballs. With the exception of Bradley, few of the antislavery party even seem to have felt it was the main event of the Ninth Congress. (Though it was the big event of their generation of antislavery activism.) The papers took little interest, and the Annals were collected largely from newspaper reports, so things probably have slipped away.

The bill passes on March 2, 1807, which brings us to our last vote. Only five men vote to keep the trade open. It is actually open at this point, because SC still has it going. They are Silas Betton (NH), Martin Chittenden (VT), James M. Garnett (VA), Abram Trigg (VA), and David R. Williams (SC). No Rhode Islanders but two New Englanders willing to take it to the bitter end and go on record, both Federalists. Chittenden remains the real mystery to me. New Hampshire at least has a coastline. He was born in northwestern Connecticut, but left there when he was thirteen. That’s old enough to have opinions, maybe. He was educated at Dartmouth and may have picked up his position there, but that would be a question for his biographer.

Sources

It’s very likely that I’m forgetting some.

The Slaveholding Republic by Don Fehrenbacher on the mechanics of the slave trade and law in particular, but also John Brown.

James, Sydney V. Of Slaves and Rum. Reviews in American History 10.2 (1982): 168-72. Web. A book review that gives some details from The Notorious Triangle, about Rhode Island and the slave trade which I desperately want to read, but is well outside my research budget.

Mason, Matthew E. Slavery Overshadowed: Congress Debates Prohibiting the Atlantic Slave Trade to the United States, 1806-1807. Journal of the Early Republic 20.1 (2000): 59-81. Web for fine-grain details of the votes and debates.

Slavery & Politics in the Early American Republic by Mason was helpful or situating the New England Federalists.

Slavery’s Constitution: From Revolution to Ratification by David Waldstreicher for the Constitutional Convention and Yankee-Carolina alliance.

And a finding aid for the John Brown Papers (PDF) at the Rhode Island Historical Society for more information about Brown and how the Abolition Society operated.

The First Congress and Antislavery Petitions

We left the First Congress with Josiah Parker’s bill to put a ten dollar per head tax, the constitutional maximum, on slave imports. Parker hoped that the tax would raise the price of newly-imported slaves enough to reduce the demand for them. James Jackson agreed that it just might, and so opposed it to the point of using the kind of radical language one would expect from the later antebellum. He damned Parker for aiming to crush the economy of Georgia, retard its development, and sacrifice it to fix Virginia’s surplus slave problem.  Along the way, he lamented the fashion for emancipation. That doesn’t make Jackson into Calhoun’s imitator by anticipation, but it does testify to the existence in the Lower South of at least some committed to perpetual slavery all the way back in the 1790s. The debate ended, for the moment, with Parker’s bill postponed to consideration at a later session.

That’s all interesting in itself, but what happened next undermines a popular myth or two about the founding era much-beloved by the Confederacy’s fans and, on occasion, by the Confederates themselves. The first session of the first Congress ended September 29, 1789. The second began on January 4, 1790. In the interim, the Quakers got busy. They petitioned Congress to do something about the slave trade. Don Fehrenbacher’s The Slaveholding Republic, from which I have this story, quotes them terming it a “licentious wickedness.” Some Southern representatives objected so strenuously that the House tabled the petition rather than refer it to a committee.

So much for that petition. The next day, Congress had a new one. The Pennsylvania Abolition Society did the Quakers one better. The petitioners

earnestly entreat your [Congress’] serious attention to the Subject of Slavery, that you will be pleased to countenance the Restoration of liberty to those unhappy men, who alone, in this land of Freedom, are degraded into perpetual Bondage, and who, amidst the general Joy of surrounding Freemen, are groaning in Servile Subjection, that you will devise means for removing this Inconsistency from the Character of the American People, that you will promote Mercy and Justice towards this distressed Race, & that you will Step to the very verge of the Powers vested in you for discouraging every Species of Traffick in the Persons of our fellow Men.

Franklin's signature on the petition

Franklin’s signature on the petition

The petition ran over the signature of the Society’s president, Benjamin Franklin. Later generations, and some of the then-present generation, would tell you that the founders to a man believed in strictly limited powers for the general government. Alexander Hamilton might think otherwise, but that made him a singularly wicked man. No person should dream to follow the example of such a miscreant. The consensus, everywhere and in everything, was that Congress had limited powers and could not ever stretch beyond them lest tyranny ensue.

And then Ben Franklin writes asking that Congress at the very least read its powers as broadly as it could in order to restrict the slave trade and consequently undermine slavery. His advocacy of broad -maximally broad, in fact- construction in a time allegedly innocent of such things (again excepting Hamilton) deserves noting. The Pennsylvania Abolition Society didn’t just want Congress to do something. They asked Congress to throw the book at the slave trade, possibly invent some new ones to toss along with it. And, explosively, they proposed “the relief of those unlawfully held in bondage.” In other words, Congress had the power to free slaves. It might only reach to those brought into the country illegally, but the federal government would directly emancipate.

Thomas Tudor Tucker

Thomas Tudor Tucker

This could not go unmarked. Thomas Tudor Tucker, of South Carolina, spoke first. He expressed his amazement at Franklin, “a man who ought to have known the Constitution better.” Tucker

thought it a mischievous attempt, as it respected the persons in whose favor it was intended. It would buoy them up with hopes, without foundation, and as they could not reason on the subject, as more enlightened men would, they might be led to do what they would be punished for, and the owners of them, in their own defence, would be compelled to exercise over them a severity they were not accustomed to.

Franklin would give the slaves crazy ideas and so require the planters to reach new heights of cruelty to keep them subjugated. Did he care nothing for the tender consciences of the men with the whips? Or the slaves, who he proposed to help, who must suffer under them? Think of the slaves, Ben.

Aedanus Burke

Aedanus Burke

Did all of that point toward a general emancipation? Tucker thought it might. The South would never accept that “without a civil war.” Tucker’s impressively named fellow South Carolinian, Aedanus Burke, declared the whole idea unconstitutional. If the House did so much as referred the petition to a committee, it would exceed its powers. Such a thing

would sound an alarm, and blow the trumpet of sedition in the Southern States.

The House listened to all the fiery speeches and voted 43-14 to send the Franklin and Quaker petitions to a select committee appointed by the Speaker, a Pennsylvanian. He declined to name a single Lower South member to that body.

This may not show later-era sectionalism, but we certainly have from the first Congress a profound division over slavery. It might not burn so brightly or split the nation so neatly, but the happy story that the founding generation all agreed that slavery not only would end, but also ought to, takes a well-deserved beating. All the way back then, one could find southerners who wouldn’t even go for vague, indirect, and future schemes of emancipation right there alongside northerners who at least considered measures designed, if indirectly, to attack slavery where it then existed.

The First Congress and the First Slavery Debate

Josiah Parker

Josiah Parker

The Atlantic slave trade usually comes up in American history as a footnote. The slaves came from Africa in miserable conditions. The trade fell into such disrepute that the Founding Fathers prohibited it in the nation’s infancy. The story ends there, though you may hear occasional references to either smugglers continuing the trade or the late antebellum movement to reopen it. As with just about everything, a sea of complications churns just beneath the surface. We neglect them as surplus detail in larger narratives. The action takes places largely away from the United States and before we conventionally begin the story of sectional strife, in an era where we imagine a national consensus against slavery. The story, while not entirely a litany of American sins, frequently demonstrates more national resolution to protect slavery than restrain it.

The Constitution provides that

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

On the face of it this allows Congress to ban the Atlantic slave trade, and any other international trade in people, beginning in 1808. Already we have a problem for a perfectly celebratory history of the United States, as the law does not require such action. The Congress could decline to act and so leave the trade open in perpetuity. It also must permit the importation of slaves until 1808. In that function, the slave trade clause serves as one of the most proslavery passages in the document. Here we have slavery not tolerated or helped indirectly, such as by the apportionment of the Senate or the 3/5 Clause, nor explicitly preserved where it exists and obligating free states to aid in the institution’s preservation as in the Fugitive Slave Clause. Here the Constitution essentially declares an absolute right to import slaves into the United States for a term of no less than twenty years. South Carolina insisted.

That didn’t mean, however, that states could not prohibit the trade. All of them had during the Revolution and most continued to do so. South Carolina opted to reopen its trade in 1803, to considerable national controversy. Before them, Georgia (until 1798) and North Carolina (1790-4) did the same to less outcry. This human cargo might have reached ten thousand per year and dramatically facilitated the spread of plantation agriculture in Georgia and upcountry South Carolina, and reached further into the emerging Cotton Kingdom. Many enslaved people first taken in Charleston ended up in New Orleans.

This all still tells only part of the story. States could, if they so wished, import slaves for a minimum of twenty years. But the federal government had the explicit power to tax those imports at up to ten dollars a person. On Marcy 13, 1789, thirteen days after George Washington took his oath of office, a another Virginian war veteran, Josiah Parker, started the first argument over slavery in the new Congress. Parker presented his plan in an amendment to a tariff. It went simply enough: if Congress had the power to tax slave imports, it ought to do so to the maximum amount allowed. He explained, according to the Annals of Congress:

He was sorry that the constitution prevented Congress from prohibiting the importation altogether; he thought it a defect in that instrument that it allowed of such a practice; it was contrary to the Revolution principles, and ought not to be permitted; but as he could not do all the good he desired, he was willing to do what lay in his power. He hoped such a duty as he moved for would prevent, in some degree, this irrational and inhuman traffic

Parker gathered opposition from both sections. Connecticut’s Roger Sherman, one of the principals behind the Connecticut Compromise that gave us the familiar bicameral congress, declared his support in principle but

could not reconcile himself to the insertion of human beings as an article of duty, among goods, wares, and merchandise.

Others followed Sherman, either for his reasons or otherwise convinced that Parker proposed making a tariff bill into a slavery bill and so ought to instead introduce the matter on its own. James Jackson of Georgia, went further. Of course a Virginian wanted to curb the slave trade. As “an old settled State,” they had slaves to spare. Indeed, the Old Dominion proved

so careless of recruiting her numbers by this means; the natural increase of her imported blacks was sufficient for their purpose

James Jackson

James Jackson

But Georgia, established in the eighteenth century and still very much a frontier, lacked such advantages. Thus, Jackson

thought the gentleman ought to let their neighbors get supplied, before they imposed such a burthen upon the importation.

Jackson also went positively late antebellum in arguing that enslaving Africans improved their condition and free blacks, lazy by nature, because not solid members of the community so much as “common pickpockets, petty larceny villains”. If emancipation really worked so well, why hadn’t Parker’s Virginia tried it? After having thoroughly done so, Jackson insisted

He would say nothing of the partiality of such a tax; it was admitted by the avowed friends of the measure; Georgia, in particular, would be oppressed. On this account, it would be the most odious tax Congress could impose.

Most odious or not, inserting Parker’s tax into the general tariff bill proved a deal breaker. He withdrew the amendment and, as requested, put forward a separate bill. Four months later, the House opted to postpone consideration of it until the next session. Parker’s idea would come back in the future, but never became law.

The Herald of Freedom on Presidential Impotency

George W. Brown

George W. Brown

Gentle Readers, I live in one of those forested parts of Michigan that doesn’t have much of a history with the automobile industry. At one point, some dreamers thought they would start a car company here. Everyone else in the state had the same idea about the same time. Far from most everywhere, the tourism focuses less on internal combustion and more on nautical illumination. We have more lighthouses than any other state. This weekend I went out to see one that I hadn’t before, built in 1895. I planned to take pictures and write about the experience.

I forgot my camera.

Right then, we’ve spent some time with the Squatter Sovereign’s reaction to Franklin Pierce’s annual message and related matters. Two papers could play that game. George Washington Brown’s Herald of Freedom, of senator-threatening fame, had news of Pierce’s message in the very next edition after its release:

The president has sent his Message to the Senate, and referring to the recent troubles in Kansas, says the people must be protected in the execution of their rights, -eulogizes popular sovereignty, advocates States rights with respect to slavery, and the fugitive slave law, &c., &c.

Yeah, yeah, whatever, Frank. The next issue, on January 18, 1856, included a synopsis of the message that said little more on the subject of Kansas. But Brown took aim at Pierce’s inaction in the face of repeated invasions of Kansas by Missourians through a piece reprinted from “The Republican, Me., Journal”:

The late disturbances in Kansas have raised a serious question respecting the authority of the President of the United States. Has the President of the United States the right to interpose its sovereign power to prevent the citizens of a State from invading the territory of the United States, and forcibly usurping the rights of citizenship, and exercising legislative authority over it? If he has no such right then Congress should immediately confer it upon him; and if he have the right he should be held responsible for its exercise upon due information, whenever the public exigencies require it.

This all sounds a little abstract on the face, but Pierce’s wrote with regard to Kansas that

the people of the Territory, who by its organic law, possessing the right to determine their own domestic institutions, are entitled while deporting themselves peacefully to the free exercise of that right, and must be protected in the enjoyment of it without interference on the part of the citizens of any of the States.

If Pierce believed that, why hadn’t he ordered the cavalry out to save Lawrence? With a presidential order in hand, they would have ridden from Fort Leavenworth at once. Colonel Sumner told Wilson Shannon as much. If Pierce had the power, why hadn’t he used it? The President moved from the quoted passage into a disquisition on states rights that includes the following:

It is not pretended that this principle [popular sovereignty] or any other precludes the possibility of evils in practice, disturbed, as political action is liable to be, by human passions. No form of government is exempt from inconveniences; but in this case they are the result of the abuse, and not the legitimate exercise, of the powers reserved or conferred in the organization of a Territory. They are not to be charged to the great principle of popular sovereignty. On the contrary, they disappear before the intelligence and patriotism of the people, exerting through the ballot box their peaceful and silent but irresistible power.

Taken in context, Pierce at least implies here that if something went wrong then he had no responsibility to right it. Stuff breaks. Things fall apart. But popular sovereignty made that into a problem for the locals, not for Franklin Pierce to fix from Washington. He lacked the power or the moral right to intervene.

Franklin Pierce

Franklin Pierce

The Journal took that all under due consideration:

Shall the president of this great republic, with full knowledge of an invasion of a Territory by citizens of one of the States of this Union with intent to usurp the rights both of citizenship and of supreme legislative authority over it, stand coolly by and suffer the damning deed to be done under the pretext that he has no authority to prevent it? No authority to execute the law of Congress? No authority to repel the invasion of a Territory of this Union, and prevent a forcible usurpation of the rights of citizenship, and of supreme legislative power? No authority to protect American citizens on the soil of the United States, or prevent civil war? In our opinion it is not so. Such a confession of Presidential impotency is an evasion, -we had almost said a pretext, a subterfuge. Our government is not that rickety thing, nor our constitution that phantom of statesmanship which such a confession of its weakness would imply.

The piece went on to point out that the President had command of the Army and Navy. His duty included, in so many words, seeing the laws faithfully executed. That meant the part of the Kansas-Nebraska Act restricting voting to actual residents as much as the Fugitive Slave Law Pierce would rather execute. Who did he think he could fool with that line?

Update: A previous version of this post identified the essay in the Herald of Freedom as original to it. It was actually a reprint from another paper and I’ve edited the above to reflect that.

The Ends of Constitutionalism

John C. Calhoun

John C. Calhoun

Gentle Readers, I’ve spent the last week thinking about constitutional theories. I’ve done so before, but they happen to have returned to the news through the continuing operations of a domestic terrorist organization. I wrote about them last week, though I don’t consider it my best effort. Consider this more inspired by than specifically about the ongoing seditious conspiracy.

In Prelude to the Civil War: The Nullification Controversy in South Carolina 1819-1836, William W. Freehling remarks that a debate concerning infrastructure projects, internal improvements in the parlance of the time, “most early-nineteenth-century disputes between nationalists and sectionalists, turned into an argument over the Constitution.” Given the tremendous prestige granted to the Constitution, it only stood to reason that any contending parties would find imprimatur for whatever policies they preferred within its text. If we judged from this point alone, we would have to consider our dating badly wrong. By no means could our years begin with any other digits than one and eight, in that order. Everyone, bar a few individuals more honest and historically informed than amenable to the ever-excessive, oft-violent cult of American patriotism, stands for the Constitution. In standing for the Constitution we name ourselves red, white, and blue saints contending against traitorous sinners.

I don’t use the religious language for effect. The frame of the argument neatly recapitulates tropes very popular in the rhetorical histories of various Christianities: Once, all agreed and lived together in paradise. The nude frolic could not last. We fell from grace and lived shackled to our sins. But now we have a chance at restoration, to come around to the right and live in conformance to the grand design. This could easily be the story of Martin Luther or Joseph Smith as the story of original intent and strict construction, the story of a proslavery Constitution or an emancipationist Constitution perverted to opposing ends. We could call any version true, so long as it comported with our values. If we wanted to really separate ourselves from the crowd, we might burden ourselves with inconvenient facts as well as the airy freight of rhetoric. Even if we do, Constitutional debates ultimately come down to what we want and how we think we can best achieve it.

This doesn’t necessarily render Constitutional considerations irrelevant, but it does mean that we cannot take them in isolation. People adopt the constitutionalisms they do for what they consider good, real world reasons rather than fuzzy abstractions. That doesn’t necessarily make constitutional theory insincere, but does mean that it follows and flows from policy preferences. If we take it at face value, a practice once popular among historians as well as the lay public, then very little of American history makes much sense. We mistake states’ rights for a cause, rather than a method. We have no explanation at all for how a diehard nationalist like John C. Calhoun became his generation’s most famous anti-nationalist. Going down this road leads one to thinking that slavery had little to do with the Civil War or any of the sectional crises before it, rather than serving as their indispensable driving force.

The ex-confederates and their latter-day admirers, many of whom must know better given the ink they spill trying to defend slavery, want just that from us all. If white supremacy remains taken for granted and invisible in American history, then it becomes that much easier to prosecute today. By removing African-Americans and their interests from history, we can deny that they have one except as objects acted upon by whites. With only the most superficial knowledge of how white supremacy operated and operates, we happily consign it to the past even as we continue it in the present. We had slavery, but we ended it. We had segregation, but we ended that too. Neither has any persistent effect, either on its own or in the form of attitudes and circumstances perpetuated despite de jure achievements.

One must truly sleep through life to miss that black Americans do not do as well as whites. Even if we don’t know the statistics, the brute facts confront us every day. The color of wealth, and the power and authority it brings, remains almost entirely white. Absent a robust understanding of both how white Americans have denied black Americans advancement, we must conclude not that injustice persists but rather that something about black Americans makes them, by their nature, inferior. We can call it culture, but this pretends that black culture exists utterly apart from white culture. It transforms black Americans into Martians, strange visitors fundamentally alien and incomprehensible save in that we can comprehend the supposedly existential threat they pose to us. They thus become a thing to battle, rather than fellow people with whom we have shared a country since before we called it a country.

If you don’t believe me, then consider this musical genre. Its performers hail chiefly from one identifiable racial group, speaking about their experiences both real and idealized. Its lyrics regularly glorify crime, including violent crime. If you watch the news often enough, you know I have just described rap and hip-hop. If you turn the radio to the right station, you will soon learn that I instead described country. Neither, with the exception of the occasional musical about a founding father and Johnny Cash, regularly graces my ears but the lyrics speak for themselves.

We invented race for that purpose, of course. We must keep to our traditions, lest we admit our own responsibility. In appreciating how fundamentally we built it into our system, it would take at least a minor miracle to have kept it clear of our constitutionalisms. Plenty of Americans, then and now, don’t even try to pretend otherwise. They deem civil rights legislation unconstitutional, a point on which the Supreme Court has chosen to concur. Programs that help the poor? As poverty in America comes with black skin, we find that unconstitutional as well. In the world of disinterested constitutionalism, these things just happen. They have their consequences, but we have the poor and wrongly-colored to bear those.

No one can hold the devoted constitutionalist responsible. They must follow the rules, the same as everyone else. Those rules come down to us themselves disinterested and thus inherently fair. We should know; we made them. How could we, white with innocence, do otherwise? All through our history we have the same distinguished record of pure principle. Such abstractions cleanse anything. We had no slavery; we had property rights.

This distinction, from time to time, brought petitioners to the Congress asking compensation for slave property lost or damaged in the course of wars. Such requests provoked considerable controversy. For many white Americans, asking the government to pay for lost slaves like it paid for lost cattle asked far too much. But for others, it asked only the absolute minimum. They had their rights, you understand. It had nothing to do with slavery, in that the Constitution protected all property alike, and everything to do with it in that slave property remained slave property. On these small issues, easily forgotten and deserving of future blog posts, the Congress could produce sectional alignments typical of the late Antebellum solid decades before and in the midst of eras where we do not usually understand slavery as a particularly divisive issue. Competing constitutionalisms then squared off, but they did not square off on their own terms. Both sides had preferred ends which their constitutional theories served.

We can pretend otherwise, but doing so doesn’t just turn hated minorities into aliens. It does the same for cherished national totems, rendering them inert, uninteresting paragons from whom we insist we must learn but from whom we have likewise stripped anything worth learning. We built such statues, out of marble or imagination, for devotion rather than education.

What did the founders think of secession?

James Madison

James Madison

The conventional story goes something like this: The founders donned their powdered wigs, put their knee breeches on, and cheered as George Washington applied the requisite amount of boot leather to the necessary number of British posteriors. Thirteen colonies turned into thirteen free and independent states. They did not constitute, in any meaningful sense, a nation. The founders shared with the people of the several nations an abiding suspicion of central authority. Only the Revolution had united them and with it done they could all go back to those nations and have nothing more to do with one another. They never intended to create a consolidated republic and always imagined association between their states as strictly voluntary and subject to unilateral termination, secession in a word, at any time. To the degree the former colonies associated, they associated like you might associate with someone you met once at a party. Having a good time together did not make them married. This vision persisted through the Antebellum until the Tyrant Abraham I, the Hammer of Dixie, enslaved us all. Thus they said “the United States are” before the war and “the United States is” after, or even if they didn’t then they held sentiments largely along those lines. Shelby Foote said so.

I cannot improve on Andy Hall’s demolition of the argument from phrasing. Americans did not primarily or exclusively say “the United States are” until the Civil War and take up the singular verb after. The transition happened decades earlier. But that still leaves the meat of the story. Did antebellum Americans, most especially the founders whom the secessionists claimed as their own, consistently understand the Union as inherently voluntary, with states free to depart at will or, failing that, when they felt things sufficiently dire to justify an extreme step? In short: no.

By that I don’t mean to say that secession never crossed the minds of anybody prior to the late antebellum, nor that talk of disunion only arose late in the age. Threats of it go back to the Constitutional Convention. But those threats did not necessarily indicate general approval of the concept. Rather the convention, twelve of thirteen states strong, came together to curb state sovereignty. The Articles of Confederation had proved insufficient to the task of governing the nation because the states had much greater power than the national government, even if that government constituted a permanent union. One needn’t interpret the text to drive that conclusion, incidentally, the Articles call themselves perpetual:

Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

A perpetual union hardly incorporates in itself any right to secession. Finding the power of the central state insufficient, must we think that the founders got together in Philadelphia to remedy that and then undermined their own work so comprehensively as to nullify it at the whim of any given state? The requirement that all states agree on legislation proved a critical weakness in the Articles, so would they really write it back into the Constitution? People in the past can do things that seem to us perverse and understand themselves instead as consistent with sound principles, but that suggestion would not have made any sense at the time.

The Philadelphia debates bear this out. Just a few days ago I noticed that Robert Middlekauf’s The Glorious Cause the Oxford History of the United States volume on the revolutionary era, sold by Amazon as an ebook for all of three dollars. I have not taken much interest in revolutionary history due to all the patriotic myth making. I know that historians do good work there, but the flag waving enthusiasm put me off long ago. All the same, I wanted to check something I’d heard in Mike Duncan’s wonderful Revolutions podcast. So I winced at the title and got my file. I have only read the chapters on the Constitutional Convention and ratification, but they proved a gold mine of information about what the founders thought on the issue. As much of the Philadelphia deliberations concerned representation in the Congress, they naturally dwell upon what states deserve in the way of power. It also made for a really good read. I intend to go back and finish the rest at some point.

I already knew that James Madison came to Philadelphia with a plan to grant the national government a sweeping veto over any state legislation, but the account I got back in high school painted the advocates for equality of the states in the Congress and those who argued for apportionment by population as roughly equal. In fact, only New Jersey and New York favored the former’s equal representation plan when it came down to voting. If a broad consensus existed in Independence Hall, it did not view the states in themselves as the principal components of the new nation. Otherwise one would expect much stronger votes in favor of state equality. What does this have to do with secession? A weak government could hardly prevent it. A strong one could coerce recalcitrant states and wake them from any dreams they had of disunion and nullification alike.

The advocates for state equality touched on the connection themselves. As Middlekauf has it:

Ellsworth, Sherman, and Johnson, all from Connecticut, made the heart of the case for equality of representation with minor, though longwinded, aid from Luther Martin. The essential weakness in the argument for proportional representation, they insisted, was that it rested on a misunderstanding of the Confederacy. The states in reality were joined together by an agreement much like a treaty; they were free and sovereign. Now they were asked to give up their equal voices in the Union, in effect to be consolidated out of existence

James Wilson

James Wilson

Ellsworth further insisted that every confederacy in history had equality among its members, a point of history more convenient than correct. Madison and his fellow Virginian James Wilson would have none of this. Middlekauf continues:

Both rejected the small-state contention that a treaty bound the Confederation together. Far from a union of equals, the Confederation possessed some-but not enough-authority over the states. […] Wilson agreed and rejected the Connecticut proposal for a compromise -the lower house to be apportioned according to population, the upper according to state equality-and cited statistics which purported to show that such an arrangement would permit the minority to control the majority. Seven states, Wilson noted, might control six; seven with one-third of the country’s population would control six with two-thirds of the population. “Can we forget,” he asked, “for whom we are forming a Government? Is it for men, or for the imaginary beings called States?”

That argument sounds downright twentieth century. Earl Warren’s Supreme Court rejected malapportionment of state legislatures in the 1960s on the grounds that “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” I have heard that decision, which articulated the “one person, one vote” standard, damned as a grievous offense against state sovereignty. This sovereignty forms a necessary prerequisite for unilateral secession as practiced by the Confederates and admired by their various descendant movements today. Madison, back when the states had a far better claim to sovereignty in matters save for secession,

denied flatly the states were sovereign-“in fact they are only political societies. There is a graduation of power in all societies, from the lowest corporation to the highest sovereign. The states never possessed the essential rights of sovereignty. These were always vested in Congress.” The states, Madison argued, “are only great corporations, having the power of making by-laws, and these are effectual only if they are not contradictory to the general consideration. The states ought to be placed under the control of the general government-at least as much as they formerly were under the King and British Parliament.” And from these propositions about the character of the states-devoid of sovereignty, mere corporations, properly under the thumb of the national government-it followed that since America was a republic, representation must be based on the people.

A state which does not have final sovereignty, which constitutes a mere corporation and with laws that hold only as by-laws of its particular interests rather than paramount legislation, could hardly secede on its own initiative alone.

Madison further opined, implicitly, on the nature of state governments in The Federalist, Number 10:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

A state government must, by definition, constitute a smaller society than the general government. A local government would constitute one still smaller. Madison considered the smaller a far greater risk to the rights of others, a position often born out in twentieth century Supreme Court cases. One could also reach further back and look at the sort of oppression and outright persecution that the slave states indulged in to protect slavery. If one counts up state-level emancipations and exempts states built out of territories which had nationally imposed bans on slavery in their bounds prior to statehood, we have to stop counting states that ended slavery on their own and without war forcing matters at the Mason-Dixon Line and Pennsylvania-Ohio border. This gives us only Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, and Pennsylvania.

From these nine we could subtract Maine as it had a Massachusetts-imposed slavery ban before it became a state, and Vermont, where slavery had never been practiced and so eliminating it took little exertion. This leaves us with seven states to live up to the laboratory of democracy reputation. Against them, we could count both the fifteen slave states of 1860 and the two slave territories of Utah and New Mexico. I would not say that states necessarily and always take the low road, and some have gotten out in front of the national government often enough, but the overall example does not give much encouragement when concerns go beyond simple things like traffic laws and into questions of minority rights.

Alexander Hamilton

Alexander Hamilton

We know how the dispute worked out in Madison’s day, just as we know how it did in the case of Lee v. Grant. Adherents to other theories of national composition certainly existed. They had enough strength, when the advocates of state equality made it into a make-or-break issue, to force compromises. But the notion that the founders acted with one mind, however always borderline absurd, and that this mind fixed on the sovereignty of states simply doesn’t have a leg to stand on. National supremacy flowed not from Lincoln in Washington, but from the convention Washington chaired in Philadelphia.

But, the conventional story then goes, whatever happened at Philadelphia ratification came contingent upon various undertakings. Most famously, the states only ratified with the promise that the Congress would pass a Bill of Rights and with some kind of tacit understanding that if this did not work out, the states could quit the union and resume their independent sovereignties.

This point came lately to my attention via a video Al Mackey posted over at Student of the Civil War. It begins with Akhil Reed Amar, a constitutional law scholar who teaches at Yale, discussing the legality of secession. The secession discussion only consumes the first portion of the run time, but in it Amar makes some important points.

Madison did not get his global veto of state enactments for the Congress, but he did get the Supremacy Clause:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Roger Taney, Chief Justice of the Supreme Court

Roger Taney

By definition, sovereignty rests with whoever has the final say. The Constitution did not grant that power to the states, nor hazily delegate it to them by not granting it to the nation. It instead strips them of any such power to make laws, even state constitutions, contrary to the laws of the United States. Note that the provision does not limit itself to the national Constitution or treaties, but reaches to any federal legislation whatsoever. Even if the states had sovereignty before ratification, they ceded it then. This leaves no room for nullification either of one law or, in its ultimate form, the nullification of all federal laws by secession. A state could pass a law nullifying the tariff or the Fugitive Slave Act, as respectively South Carolina and Wisconsin did, but such laws existed only on paper and until a federal court declared them void at the latest. Roger Taney’s Supreme Court agreed on the second point when it tossed Wisconsin’s act of nullification, to the thunderous silence of most of the usual states rights enthusiasts. What part of this did South Carolina miss? Presumably the part where its nullification must meet with general approval as such a nullification would strengthen and preserve slavery whereas Wisconsin’s would not.

Amar further argues that if the founders intended the Constitution to come with a free trial period and sovereignty-back guarantee, then they did not act it. During the ratification debates in New York, with the vote very close and Alexander Hamilton not sure he had the votes, the anti-federalists suggested that they would give way for the promise of a Bill of Rights. Failing delivery on that front, New York would secede. Hamilton asked Madison for his opinion of such a deal. Even at this critical juncture when New York’s refusal would bisect the Union, possibly fatally, Madison declined to endorse compromise:

I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification.

[…]

This idea of reserving right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection

If Madison would have broken principle in the name of pragmatism, one must imagine he would have done it then. The Constitution already had the nine states it needed to go into effect, plus an extra, but the loss of New York would have meant a great blow. Unlike Delaware, South Carolina, or other states which desperately needed a union to sustain themselves, New York with its great port and generous hinterland might have been able to go it alone. Its bad example would weaken the new union from the start, hence his, Hamilton’s, and Jay’s writing of The Federalist to begin with.

John C. Calhoun

John C. Calhoun

Lest one think Madison and Wilson alone, or necessarily extreme, in looking into the future and cursing the names of John C. Calhoun and his unruly brood of nullifiers and disunionists, despite the votes at the convention and final Constitution arguing very much otherwise, Hamilton himself got into the act in The Federalist, Number 11:

Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!

Strict and indissoluble, not loose and easily broken.

The framers did not envision anything like what Lincoln called the dreams of the Confederates:

In their view, the Union, as a family relation, would not be anything like a regular marriage at all, but only as a sort of free-love arrangement,—[laughter,]—to be maintained on what that sect calls passionate attraction. [Continued laughter.]

I don’t know how the founders chose to organize their private time save for the evidence given by their progeny, acknowledged and otherwise. In their political acts they present a clear record favoring not states, with the national government as a kind of necessary evil, but rather saw it as a necessary and positive good and, moreover, as a clear way to suppress contrary movements in the states. That doesn’t mean we would necessarily find all their motives for doing so appealing or in line with those who favor a stronger national state today, but they did what they did and wrote what they wrote.

This myth, like the myth of the antislavery Lee, will endure this and many other blog posts. It will survive the scorn of historians. The supposed advocates of original intent will read it, as they do all other inconvenient facts, as irrelevant rather than persuasive. They and their more radical compatriots, latter-day secessionists who ask us to believe that just this once the rhetoric they employ lacks the white supremacy which has so consistently informed it in the past, must wrap themselves in a pretend history of original intent. The real one doesn’t have much to offer them.

The framers envisioned the possibility of unilateral secession, as attempted in 1860-1, and nullification as attempted by South Carolina and Wisconsin alike, and foreclosed each in Philadelphia and at ratification. Antebellum Americans knew as much and needn’t live in the cold heart of Yankeedom or on the Illinois prairie to notice it. The Confederates at the time understood their movement as revolutionary, only deciding that they really did have a clear legal right after losing the war. Why should we pretend otherwise, unless we aspire to rehabilitate the some of the same politics that they did? Secession for what? States rights for what? If one can get a straight answer from the Confederacy’s latter-day partisans, in itself a major achievement, and they have cleverness enough to not simply say “slavery” with one of the usual codes, then I usually hear preserving the founders’ vision of the Union. It didn’t take a deep look into the founding era to find out what that vision entailed. One can and should note that it included slavery for at least the foreseeable future. But it did not include secession or nullification at all.

George Brown Breaks the Law, Part Two

George W. Brown

George W. Brown

Gentle Readers, I must disappoint you. I still intend to write a post, probably more than one, on literacy in the middle of the nineteenth century. However, the statistics are not so conveniently available as I remembered and so will require some adjustment and arrangement. Putting that on top of the data entry (easy enough, but tedious and time-consuming) and subsequent analysis, as well as several connected topics that arose and probably deserve posts, and I’ve created for myself a project that I don’t think I can do justice to with the time available to me before this post would go live. What I could offer you now would make for, at best, a first approximation that I would have to come back and revise in later posts.

I can, however, give you some more about George W. Brown’s civil disobedience.

George Washington Brown tossed the proverbial tea into the Missouri River on September 15, 1855. That day, the Assembly of Kansas’ laws to protect slave property through the generous suppression of white freedoms came into effect. That laws forbade the utterance, writing, publishing, or circulating of essentially any antislavery opinion within Kansas. Unlike eighteenth century Bostonians, he did not bother dressing up as someone else. Instead he published news of his lawbreaking in his own newspaper, under his own name, and helpfully cited the exact provisions of the law that he broke. Brown did not settle with implicating himself once, but instead confessed to multiple counts. He broke the law with his newspaper, but also with the Bibles and copies of the Declaration of Independence that he sold from the Herald of Freedom offices.

After sounding off on how the Bible and Declaration ran afoul of Kansas’ new laws, and how Brown expected to end up in a Missouri prison until his sentence to hard labor put him to work back in Kansas on a Pacific railroad, the editor came to another text of some interest:

By the way, there is an obsolete document which formerly was quoted largely by statesmen of small caliber, known as the Constitution of the United States, which declares that “Congress shall make no law ** abridging the freedom of speech or the press,” and as a corollary it was urged that no body deriving their authority from Congress could pass any such law; but modern statesmen care nothing about that document. The “Barons of Kansas” are superior to the Constitution; and as to the Declaration of Independence, or the Bible, it is of no account whatever.

John C. Calhoun of South Carolina, Secretary of State, Senator, and the generation's leading secession and slavery booster.

John C. Calhoun

Most nineteenth century Americans, including the federal bench, did not regard the guarantees of the Constitution as applying to the laws of states. The Fourteenth Amendment briefly changed all of that, but the Supreme Court saved the nation from the scourge of the Bill of Rights by ruling otherwise not long thereafter. Later courts have, in the past century, thankfully gone the other way. But some Americans did insist that the Constitution’s guarantees ought to apply to the states. No less an authority than John C. Calhoun held that the constitutional right to property protected slavery and should take precedence over any contrary state law.

Antislavery Americans argued over whether or not the Constitution itself protected slavery, with those like William Lloyd Garrison arguing that it did and so deserved abolition and a good burning but others of a less radical stripe preferred a reading of the document which cast it as a work that set slavery on and looked forward to its eventual extinction. Trying to read the document in context, I don’t myself find a clear answer either way. That ambiguity cleared out ample space for both understandings and probably greased some wheels during ratification. Parts of the Constitution clearly affirm slavery, such as the prohibition on outlawing the Atlantic slave trade for a quarter of a century, but they run together with equivocal compromises like permission to do so thereafter. The infamous Three-Fifths Clause did recognize slavery, but did not give the slave states all the recognition they wanted for it. Furthermore, by counting slaves as “all other persons” rather than as property, the framers left open the question of whether or not the property protections in the Bill of Rights applied. The separate listing implied that slaves did not exist as property under federal law, even if they did under state law, but implication went only so far. 

This question overlaps with, but differs from, the question or whether the framers as a group, or as individuals, or the conventions that ratified the Constitution, understood it as a proslavery or antislavery document. Likewise it does not subsume the question of whether the government created by the Constitution served more consistently the interests of slavery’s extension or extinction. None of those inquiries has a succinct, short, and complete answer save for “it depends.”