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.

Stealing the Leavenworth County Seat, Part Five

Wilson Shannon

Wilson Shannon

Parts 12, 3, 4

Seizing the county seat from Leavenworth turned its proslavery men, at least temporarily, against the custom of Missourians coming over to decide Kansas’ elections. H. Miles Moore went all the way over to the free state movement, where he would win high office. Lucien Eastin, editor of the Leavenworth Herald did not go quite so far, but did rouse himself to damn now the very method by which he had gained his seat in the legislature. Kansans, it transpired, ought to govern Kansas after all. Having so declared, Eastin defended himself by reference to his career as a proslavery man. I doubt this pleased the editor of the Kickapoo Pioneer, which reminded him how he had come up.

The other proslavery town, all of forty or so people, took its loss as poorly as Leavenworth did. Delaware wanted the development that a county seat would bring as much as Kickapoo or Leavenworth, perhaps more as it had less to start from. Its industrious citizens kept a steamer running on the Missouri to bring voters from anywhere in its reach to the little town. The boat ran and the polls remained open for three days, learning Kickapoo’s totals and running the election long enough to beat them. A band, free food, and free alcohol entertained those who came. If Andrew Reeder had such amenities at Pawnee, he might have done better. William Phillips opined that Delaware could muster maybe fifty legal votes, but its returns included nigh unto nine hundred.

This, and a more plausible candidate in Kickapoo, led Wilson Shannon to pull an Andrew Reeder and set aside one obviously fraudulent election. This delighted the partisans for Delaware about as well as one would expect. They had stolen the election fair and square, and at some expense, after all. Their cooked count had a hundred more votes than Kickapoo could boast. What had Kansas come to if one could no longer steal an election by managing the bigger fraud? Delaware sued.

Phillips reports that

Even Kickapoo had to bite the dust before the sovereign will of “majority.” The election was referred to a court, which decided in favor of Delaware. This was, at least, consistent; for, as all the pro-slavery courts, which means all the courts in the territory, had decided in favor of bogus authority, it was not going to do to establish so dangerous a precedent as setting an election aside on account of any irregularity.

The Alton mob attacking Elijah Lovejoy's warehouse.

The Alton mob attacking Elijah Lovejoy’s warehouse.

In cracking a joke, Phillips made a broader point. For almost as long as the great controversy over slavery in the territories had raged, people proposed referring the matter to the courts. Roger Taney would have his say, but Phillips didn’t know that in 1856. He did know that the Kansas courts sided consistently with the proslavery party, all the way back to when they declared that the legislature could abandon Pawnee for the Shawnee Manual Labor School and remain a functioning legislature.

Digging a bit deeper, the principle that the proslavery minority must prevail ultimately constituted the chief tenet of white Southern political thought. They would take a majority if they could have it, but if they didn’t then so much the worse for the majority. Even the most aristocratic radicals often spoke softly about their dreams of rolling back the nineteenth century, but in practice the defense of slavery involved a great deal of trampling white republicanism. Kansas told that story to the nation writ large, but so did driving antislavery southerners from the South, the demands that northern states silence abolitionists, the Gag Rule in Congress, and the lynchings of dissenting whites.


“Negro-Slavery, No Evil.” Part Seven

Benjamin Franklin Stringfellow

Benjamin Franklin Stringfellow

Full text. Parts 12345, 6

The Platte County Self-Defense Association, committed to preserving slavery in Missouri, naturally had a low opinion of antislavery settlers. The group existed to keep them out of Missouri and run them out of Kansas. They worried about a racial revolution, the loss of their valuable human property, and of course the profits they reaped through the theft of lives and labor to grow their hemp. To that end, abolitionists of any stripe looked much like terrorists would to us.

But an abolitionist, to the minds of people of the time, looked like a rich man from New England. Such people would not rush to start new lives on the wild frontier. They had their money and their success. Poor people and people of middling success would take that chance. They might, however, take it with some of the funds that Eli Thayer’s and other Emigrant Aid Societies would offer. The slaveholders on the Missouri frontier knew that very well. It thus bears looking a bit more closely at how Stringfellow and his compatriots viewed the people they expected to actually chase from Kansas.

But to that other class, hired slaves of corrupt masters, who are sent for the purpose of driving our brothers from Kansas, of stealing our property, driving us from our homes, we offer no argument, but that of the strong hand.

The Platte County men would not restrict themselves to sternly worded letters and Stringfellow’s pamphleteering.

We have not, it is true, done that, which natural right would have justified us in doing. There is no law to bind them to keep the peace — there can be none, until it is enacted by the Legislature of that Territory; they are to us as would be a band of Blackfeet or Camanches, who should encamp upon our borders, for the avowed purpose of stealing our cattle and horse, of plundering our farms and villages. We would be justified in marching to their camp, and driving them back to their dens, without waiting for their attack. We are not bound to wait, until they have “stolen our negroes,” “burned our slaveholding towns.” But we have been so “law abiding and orderly,” that we have not done this: we have simply said, “we will when called upon,” go to the aid of our friends, and assist in expelling those who proclaim their purpose to be the expulsion of our friends. Robbers and murderers have no right to call on the law for protection.

In other words, they should have already gone off and purged Kansas antislavery settlers. No law governed it and those people represented the worst of two sorts of human being to nineteenth century whites: slaves and Indians. They deserved driving out for the crime of their mere existence. Yet in their forbearance, the Platte County Self-Defense Association stayed their hand. They, to use the infamous words of Roger Taney constituted

beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.

Free soil settlers in Kansas might, by accident of birth, end up as white men but Stringfellow laid it out in plain language. No law protected or should protect any such person. If they came, then they meant war. If they threw a war, the Missouri slaveholders would come.

Samuel R. Walker on Southern Constitutionalism

James Dunwoody Brownson DeBow

James Dunwoody Brownson DeBow

This post draws from Samuel R. Walker’s filibustering advocacy in DeBow’s Review (parts 1, 2, 3, 4, 5, 6, 7), but the passage says at least as much about constitutional thought in the late antebellum South as about filibustering. The simple, popular narrative has Southerners united by an intense localism and a set of shared propositions about the nature of the Union. These include the voluntary nature of the Union, the resting of ultimate sovereignty in state legislatures and conventions, the supremacy of local state law over federal enactments, and a constellation of other ideas variously summed up as nullification, states rights, and ultimately secession. 

Those ideas really did exist in the minds of period Southerners, but they did not live there alone. Nor did they, as one sometimes hears, equally dominate the minds of Northerners. Conflicts over the nature of the state and freedom dominate American history, not happy consensus. That remains true even if one restricts consideration of what Americans thought to what white male Americans thought, as virtually everyone then did. Some Southerners and some Northerners believed those things. Others believed other things.

To whatever degree the antebellum South’s leaders believed the ideology ascribed to them, they spent most of the period acting in almost completely the opposite way. Unless it came to preserving slavery in the face of national movements against it, Southerners searched in vain for a situation where they could happily prefer to let states do as they would. This only makes sense, as the South consistently dominated the federal government and so usually had a de facto veto power on federal policy. Any fair reading of the decade before the Civil War testifies to that. If anything, Southern power in Washington reached a remarkable apex in the 1850s. Had secession not intervened, the Southern-dominated Supreme Court probably would have handed down a second Dred Scott-style ruling which would have eliminated the power of Northern states to forbid slavery within their bounds within a few years.

They knew all of that. The doctrinaire states rights ideology probably did not command a majority of the Southern ruling class until after the war. Even during the Secession Winter, the decisions of many states came contingently and as near things indeed. The Upper South stayed out of the rebellion until Sumter, but even South Carolina’s decision came in part thanks to a railroad opening and running its maiden voyage full of Savannah businessmen into Charleston at just the right time. Those businessmen assured the South’s most doctrinaire radicals that if they bolted the Union, Georgia would surely follow. Complaints about the timidity of moderates enervating the counter-revolution fill the writings of fire-eaters and their more sober but still radical counterparts within the Southern mainstream.

Walker gives us something quite like that:

It was a prevailing feeling when our Colonies had, by their united efforts, achieved their independence, that they should lose their recollection of their former separate positions as individual States in the greatness of the result achieved by their Union. This idea was a natural one: we and our fathers have been educated in it, and we seem to view our federal as a centralized government, rather than a federation of independent States, linked together by a league, offensive and defensive, with a common purpose of free government; a common interest in commercial prosperity; a common protection in war, and advancement in peace. A more enlightened view is beginning to prevail and extend among the people, as its necessity increases, and the philosophy of our system is properly considered.

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

John C. Calhoun

Here we have the complete opposite of the popular narrative. Walker testifies to a nationalist mindset often overlooked in quick glances at the antebellum era. Reading between the lines just a little, he even tells us that nationalist thought generally prevailed and that ideas about states rights, nullification, and all the rest developed as a reaction against the North’s great population growth and increasingly vocal antislavery movement. Its necessity, to safeguard slavery, had increased in the minds of the slaveholding white South. But even in 1854, the ideology had not prevailed. Louisiana, fan of filibustering and home of DeBow’s Review, in particular had a nationalist bent despite its location in otherwise more radical Lower South.

Old Calhoun might have invented a Southern consensus and rooted it back in the foggy mists of the revolution as the official ideology of everyone, but each time he called on the South to join it he found no shortage of uninterested Southerners. Sometimes, as when it came to the Pacific railroad and the Missouri Compromise, he declined to even join himself.

From the Pens of Filibusters, Part Seven

John A. Quitman

John A. Quitman

Original Stealing Cuba: parts 123456

From the Pens of Filibusters: parts 1, 2, 3, 4, 5, 6

Samuel R. Walker’s promotion of John A. Quitman’s filibustering against Cuba came around at last to the subject always lingering in the margins of his piece. I’ve nudged it back in often enough on my own and Walker has raised the issues a few times himself, but four pages in he finally tackles slavery in detail. He begins by asking the reader, in the pattern of past concerns, to consider Cuba’s future “lastly, and chiefly, as a Southern question.”

we will know that a feeling is rife at the North antagonistic to the institution of slavery-a feeling which is extending amongst many even of their men of education and liberal feelings. They make the same error which has lain at the bottom of this false philanthropy since its beginning (for slavery is much the older of the two); and this error lies in regarding the negro as a white man-in speaking of him and arguing of him thus. This is their chiefest error, and the germ of all their fanaticism.

At least for hardcore abolitionists, Walker had the right of it. I don’t know that the white North at large reached that point in the 1850s or 1860s. I don’t know that we have reached it now, though we are far closer. But Walker’s words tell us more about the minds of slaveholders and their racial consciousness. White must enslave black as black as they could not and could never be anything like white. The whole justification of the system, aside naked self-interest, rested on the division of humanity into a superior and an inferior race. The conception of race that Walker trades in here has been with us so long that it takes some effort to remember that it grew up in Virginia’s tobacco fields over a few generations in the seventeenth century. Before then, black men who came to the colony as slaves could serve out indentures, however involuntarily entered into, come out free, own slaves themselves, successfully sue whites in court, and generally seem to have enjoyed as much equality as any white man. Their grandchildren could do no such thing.

But I digress. Back to Walker and Cuba:

Although I believe the Union will endure so long as it is the interest of both sections of our country to be united, yet this fatal idea festers like a cancer at its heart, and may eat it up. The safety of the South is to be found only in the extension of its peculiar institutions, and the security of the Union in the safety of the South-towards the equator. The great beauty of our system of government is in its power of expansion. An hundred States may be governed under such a system as well as a few.

Walker draw out a key point here. While the security of slavery in the South concerns him greatly, he ultimately sees slavery as only safe if it can go out of the South and into new lands, a sort of Greater South reaching down toward the equator. The South cannot, per Walker, endure as a minority section in an increasingly unfriendly Union. It must grow out and take back the reverses inflicted on it in 1820, by reserving the Great Plains to freedom, and 1850, by giving California over to the same. The section needs a kind of defensive offensiveness to match the growing numbers and power of the North or the North must encircle and smother it bit by bit.

What better place to grow than Cuba?

New fields for a restless and enterprising population will demand all the energy and labor of the land; and in the blessings and in the returns of an unlimited commerce, the superfluous sympathies of our Northern brethren would be absorbed. Thus would the bonds of interest be drawn closer together between the North and the South, and their union be the more thoroughly cemented. With Cuba, an island seven hundred miles long, and capable of sustaining such an increased population, assimilated to our own in their government, what a splendid prospect of commercial eminence opens to the South! What wealth will float upon our waters! What a bright gem will she, “the Queen of the Antilles,” be in the coronet of the South, and how proudly will she wear it!

The profits and patriotic joys of expansion will enrich the South and leave enough for the discontented Yankees to forget all about antislavery politics. What could go wrong? Here, like on the fields of Kansas and later in the Dred Scott decision, Southern triumph and slavery’s advance would ultimately work to defuse the entire explosive controversy and bring the Union back together.

A Partial Refutation of Henry Wise

Henry Wise

Henry Wise

When running for governor of Virginia in 1855, Henry Wise tarred his Know-Nothing opponent and the party behind him as covert abolitionists. He had a point when it came to Know-Nothings in the North, if not those Virginians he actually accused. To some degree, the natural impulses of ex-Whigs, anti-Nebraska men, and nativists ran together. All feared subversive conspiracies to seize control of the nation and dispossess them of what they saw as their birthright. All had a kind of moral panic over scandals, real and imagined, at home and abroad. Rome and slavery both turned the places where they prevailed into giant brothels, as lurid pamphlets and novels told an audience eager for scandal. If that writing also provided a socially acceptable outlet for more prurient interests, few publishers and readers would complain. To many nineteenth century Americans, nativism and antislavery thus seemed logical, congenial bedfellows.

But other northerners very much disagreed. They looked on less than 700,000 of the nation’s 14,235,000 church members and asked why the Catholics prompted such fears. So small a number hardly represented a serious threat of turning the majority-Protestant United States into a majority-Catholic papal fiefdom. They counted 2,234,602 foreign-born against 19,429,185 native-born and wondered at the panic. Nativist demographic challenges did not hold just in the South. If the Catholics intended to work ruin on the nation, they had Chief Justice Roger Taney on their side. He went to their churches, listened to their sermons, and supposedly took his orders from their Pope. Yet what calamity, they asked before Dred Scott, befell from his influence? Or from Lafayette’s decades before?

Roger Taney, Chief Justice of the Supreme Court

Roger Taney, Chief Justice of the Supreme Court

Viewed the right way, anti-immigrant and anti-Catholic paranoia could look very much like anti-aboltionist paranoia. Mobs attacked convents, but mobs had also attacked abolitionist meetings. One had murdered Elijah P. Lovejoy for the crime of abolitionism. Smart antislavery men took care where they traveled to avoid following his example. Respectable venues once refused antislavery patronage, just as the nativists would have the country refuse immigrants and Catholics. For that matter, the goals of the nativists sounded suspiciously similar to a slave system: one race, and nineteenth century Americans very much saw the Irish and, often, Catholics also, as a racial group subordinated permanently to the other via a form of despotism that would require extension over free, white Protestants to sustain itself. If that happened, the nation would have the anti-democratic impulses of slavery replicated and suffer still more for it. They had more of that than they ever wanted just from sustaining slavery.

Possibly the man who put it best had essentially quit politics some years before, after an uninspiring single term in the House of Representatives. The Kansas-Nebraska Act drew him back in. Looking on the ruins of his chosen party, Lincoln wrote to his slaveholding friend, Joshua Speed:

I am a whig; but others say there are no whigs, and that I am an abolitionist. When I was at Washington I voted for the Wilmot Proviso as good as forty times, and I never heard of any one attempting to unwhig me for that. I now do no more than oppose the extension of slavery.



Still an antislavery Whig in 1855, he knew the Know-Nothings wanted the votes of men like him. He would not have it:

I am not a Know-Nothing. That is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor of degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that “all men are created equal.” We now practically read it “all men are created equal, except negroes.” When the Know-Nothings get control, it will read “all men are created equal, except negroes, and foreigners, and catholics.” When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty—to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy.

Virginia’s new governor would have trouble finding a man eager to throw in with the Know-Nothings in all of that, even if he could find others who would.

Slavery by the Numbers: Errata and More Longitude

The table I posted yesterday had a serious error and a lot of small ones which I should have spotted but did not. Right after I post this I’ll be editing to fix it. The serious error comes in the 1800 census figures, where the black population leaps from 19.25% to 24.01% of the nation’s total. I noticed the unusual spike when I made the table, but did not notice also that the white proportion of the population did not also decline. Somehow, I ended up with 105% of all Americans. That can’t be right, even accounting for some rounding. I also did not notice that the share of the population made up by black people increased but the percentage of slaves and free blacks did not. Legally and logically, all black people the census counted had to fall into one of those categories.  The second discrepancy did not become apparent to me until I worked up the charts for today’s post.

At first, I thought the peak might represent a rush of slave imports in advance of the prohibition that hit at the start of 1808, but then those people would appear as a spike in the percent slave column. They do not. Likewise such would require a reduction in the white proportion of the population. No such luck. I went to check my figures against the University of Virginia’s census browser, thinking I might have mistakenly carried a figure over from one column to another, made a regular typographical error, or something like that. Unfortunately, I haven’t been able to raise the site all day.

But census figures also exist at the Census Bureau, oddly enough. Therein I found Historical Census Statistics on Population Totals By Race, 1790 to 1990, and By Hispanic Origin, 1970 to 1990, For The United States, Regions, Divisions, and States by Gibson and Jung. They both draw on census data, so I used Gibson and Jung to check my national totals. Sure enough, I found errors. Most figures did not vary by a great deal, but essentially every one had small variances from what I transcribed earlier. Relying on Gibson and Jung, I replaced the data and the sudden surge in anomalous black Americans vanished. I don’t know how many of the errors come down to my poor transcription and how many belong to the poor UVa students who transcribed from the original tabulations. I have most of the 1860 tabulations as scans of the original published tables and they do not make for easy reading with tiny type closely packed. The older census scans I have seen have similar issues. In either case, Gibson and Jung’s national figures make sense and mine and/or UVa’s do not.

The Longitude of Slavery. (Click image for a larger version.)

The Longitude of Slavery. (Click image for a larger version.)

I’ve said before that I do not have any special gift for numbers. I can see the trends over time, but the degree of change and its relation to changes in the other variables leave my innumerate brain with a bit too much to keep track of. The following charts present the same data much more effectively. I planned to include them with yesterday’s post, but could not get the spreadsheet to generate what I wanted. A friend helped me out with that. (Thanks, bud.)

The national population broken down by race and slave status.

The national population broken down by race and slave status.

Right away, some of the human cost of slavery shows through. White population growth follows the total trend closely, as one would expect from a nation never less than 80.73% white. But white and black lived in the same places, usually at very close proximity. They suffered the same food shortages, natural disasters, diseases, and so forth. Given that, we would expect both lines the follow quite similar curves. They do not. However, this measure does not quite compare apples to apples as the white population also grew due to immigration.

Apologists for American slavery will sometimes go on about how in the United States, and here alone, a forcibly transplanted slave population successfully replaced its own numbers and even grew. So far as that goes, one can’t argue. Caribbean and South American slavery rarely ever managed that and Caribbean sugar plantations worked through people at a prodigious rate. But not matching the most brutal and murderous slave system in the hemisphere hardly seems like something to brag about. Separately, population growth requires a fairly even distribution of the sexes. If one puts enough people of the right age and sexes together for any length of time, babies will ensue no matter what the situation.

Knowing the legal importation of slaves would likely end shortly after Congress gained the power to end it, American slaveholders had plenty of time to buy enough women to increase the numbers of their human herds. Living in an agricultural world, they probably required no advice on the matter at all. If you want more horses, you make sure you have sufficient breeding stock. The same works for people. Given the starkly commercial interest animating the purchase of women who would go on to birth more slaves, I don’t see anything to admire here. The slaveholding class might have practiced good husbandry, but they practiced it on people. The demographics tell us just how well owners as a class treated their human property: well enough not to run out.

The confounding effect of immigration appears more strongly when one looks at proportions.

The total black, free black, and slave populations as percents of the whole.

The total black, free black, and slave populations as percent of the whole.

Whatever their natural growth, black people formed a smaller portion of the population in 1860 than they ever had before. Immigration swelled the numbers of white Americans (at least by modern understandings, to the nineteenth century plenty of Europeans did not fully count as white) but black people arrived only when taken by force, whether they came openly or got smuggled across after the ban on importing slaves became law.

I did not previously know that the free black population peaked, proportionately, in 1810. It makes sense in hindsight, though. A wave of emancipation followed independence, even in states that maintained slavery to the bitter end, but it petered out as state legislatures made manumission harder and probate courts more eagerly set aside wills providing for it. Given the increasing difficulty in granting freedom and essentially zero immigration by free blacks, combined with the numerous obstacles they faced despite their freedom, a decline seems quite reasonable. Of course many who freed themselves did not stop until they reached the Canadian border. Many who did stop short went the rest of the way, at least for a while, after the Fugitive Slave Act, after Kansas-Nebraska, and especially after Dred Scott.

The Facts of the Cases

Yesterday I talked about Lemmon vs. New York as the next Dred Scott case. Today I want to drill down and look at the facts in each to show just how similar they are.

Born a slave in Southampton county, Virginia, Dred Scott went with his owners to Alabama where they failed at farming and came eventually to St. Louis. There they sold him to army surgeon John Emerson. Scott accompanied Emerson to his postings in the free state of Illinois and then to modern Minnesota, free soil under the Missouri Compromise. There he married another slave and she gave birth to his daughter. The same Missouri Compromise made that daughter free at birth.

After two years, the army transferred Emerson to St. Louis and then Louisiana. The Scotts followed. Emerson married Irene Sanford and returned to Missouri with the Scotts in 1842. Emerson died the next year, making the Scotts Sanford’s property. She instructed Scott to hire out to another army officer. We don’t know exactly why Dred Scott only now sought his freedom. He might not have known his rights based on his stays in free Minnesota (then Wisconsin Territory) or Illinois. He might have feared retaliation against himself and his family. Whatever his reasons, Scott tried to buy his family from Sanford. She refused. With the help of abolitionist friends, Scott sued.

The Missouri courts had often given freedom to slaves in similar situations. Scott lost his first suit on a technicality but won it on retrial, the court finding that Emerson illegally held Scott on free soil. I am not a lawyer, but my understanding of Scott’s case is this:

  • State and federal law excluded slavery from territory where the Scotts once lived. They thus became free when taken there.
  • Missouri free the Scotts from a combination of the supremacy of federal law in the Northwest Ordinance, repeated in the Wisconsin Enabling Act, and the Missouri Compromise in addition to its Constitutional obligations to acknowledge Illinois’ freeing of the Scotts via the Full Faith and Credit Clause.

The Missouri supreme court took up the case and  overturned twenty-eight years of precedent in finding that Missouri law prevailed and the Scotts remained slaves. The opinion of the court referenced the the proslavery climate of 1852 making such freedom suits unwelcome and informed Scott he ought to have sued in a free state.

Under Missouri law, control of Emerson’s estate passed to Irene’s brother, John Sanford. The latter Sanford lived in New York, which gave Scott a federal case. With some new lawyers he sued again. In 1854, the circuit court upheld the Missouri supreme court’s verdict. Scott appealed to the Supreme Court, delighting proslavery opinion thanks to that court’s southern majority. Roger Taney’s court ruled as described yesterday, overturning a law as unconstitutional for only the second time in the court’s history.

Roger Taney, Chief Justice of the Supreme Court

In 1852, the same year Dred Scott’s suit before the Missouri supreme court failed, Jonathan and Juliet Lemmon of Virginia sailed from Norfolk to New York, aiming to catch a steamer to Texas. They brought with them eight slaves (ages 2-23), and put them in a boarding house while they waited for their ship. The slaves came in contact with a free black, who petitioned the New York courts on their behalf under New York’s antislavery laws, which gave freedom to every slave brought into the state for any reason. Like the Scotts, the Lemmon’s slaves came to a free state and sued under its laws for their freedom. Unlike the Scotts, they were still in that state.

Jonathan Lemmon appealed to the New York Supreme Court, then its Court of Appeals (the highest court in the state). Both courts ruled against him. Seeing the potential of the case, Virginia determined to pursue the matter with Roger Taney’s Supreme Court. Having already put slavery beyond the power of territorial or federal law, only state law remained and the Lemmon case directly challenged it.

The Swelling South

Dred Scott (Wikimedia Commons)

Yesterday I described how the South came to feel besieged and how the antislavery forces arrayed against it had never been stronger. The South shrank. Paradoxically, the same could be said of those same forces. In the late 1850s, the antislavery coalition made many electoral gains but the story of the decade held only political reverses. The South swelled:

  • The Fugitive Slave Act of 1850 effectively legalizing kidnapping, requiring federal marshals to arrest and hold any black person that a slaveholder cared to claim was a runaway. These alleged fugitives had no right to contest their seizure, repudiating free state laws that gave them just that. That the law also gave a bounty to those capturing runaways and offered only the narrowest fig leaf of due process: a simple hearing where the alleged fugitive could not defend himself and the judge would be paid $10 (approximately $266 in 2011 dollars) for ruling for the slaveowner but only $5 if ruling against.
  • Filibusters seeking to redress the sectional imbalance in the Senate conspired to seize Cuba (and one group briefly did seize Nicaragua) in the way that their forefathers had separated Texas from Mexico and bring it in as a slave state. They enjoyed support from Southern luminaries and the Pierce administration itself, before the latter backed off in favor of offering to buy the island after expending its political capital on the following concern
  • The Kansas-Nebraska Act of 1854 repealed the Missouri Compromise that formerly excluded slavery from nearly all the territories, opening the West to slavery.
  • As a result of the former, filibusters from Missouri (including senator David Atchison) and Arkansas flooded into Kansas to ensure it became a slave state. Antislavery forces responded in kind and guerrilla war erupted while pro-slavery and anti-slavery forces submitted duelling constitutions to Congress.
  • Then the Dred Scott decisionof 1857 that:
    • No black person could ever be a citizen and thus entitled to the protection of the laws of the United States, including the privilege of freedom granted to slaves who came to free states.
    • Neither Congress nor the the territorial legislatures could constitutionally exclude slavery, ensuring that the Kansas method for making new slave states would remain legal.

What remained, then? The whole antebellum edifice of limited slavery, save the prohibition on the Atlantic slave trade alone, had passed into history. Slaveholders could move their slaves through free states at will. They could bring slaves and with them slavery to any territory. Neither territorial legislature nor Congress could exclude slavery from any part of the United States and slaveholders could flood into any new territory before statehood to be sure it adopted slavery on admission to the Union.

Tomorrow, I’ll talk about how the antislavery movement understood all of this.