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.

Kansas, Boston, and Treason in the Nineteenth Century, Part Four

Samuel Newitt Wood

Samuel Newitt Wood

Samuel Curtis laid out a thoroughgoing definition of treason for his Boston grand jury back on October 15, 1851. You had to conspire to resist the laws of the United States, or their enforcement. You must use or threaten force. You didn’t have to plan far ahead or come in full military panoply, but you did have to intend to oppose execution of at least one law in all cases rather than just in a particular instance. Through all of this, Curtis has largely written in the context of the act itself and immediate perpetrators, but he did specify that treason came out of conspiracies and combinations. How far could those reach, legally speaking?

It should be known also, that treason may be committed by those not personally present at the immediate scene of violence. If a body of men be actually assembled to effect by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered guilty of treason.

That spelled bad news for vigilance committees out to aid fugitive slaves in their escape. If we take the laws of Kansas as those of the United States, an arguable proposition but probably close enough for proslavery Kansans, then it also implicated the entire Kansas Legion. They had a military band aimed at resisting the territory’s laws, which they hardly needed unless they foresaw the use of force to resist. The Legion’s constitution specified that once a group reached a thirty men, it must have a military character. Jacob Branson, his rescuer Samuel Wood, and likely everybody of consequence in the free state movement had membership in such a combination.

The sudden burst of warrants and eager exploitation of the crisis to seize the free state leaders in Lawrence still looks like an opportunistic fishing expedition in light of this, but one with at least a plausible legal leg to stand on. Legal niceties didn’t bother proslavery Kansans and their Missourian allies all that much, but they could honestly say they observed some of the forms.

Curtis spelled it out in words that anticipate free state political activity almost word for word:

Influential persons cannot form associations to resist the law by violence, excite the passions of ignorant and unreflecting, or desperate men, incite them to action, supply them with weapons, and then retire and await in safety the result of the violence which they themselves have caused. To permit this, would not only be inconsistent with sound policy, but with a due regard to the just responsibilities of men. The law does not permit it. They who have the wickedness to plan and incite and aid, and who perform any part however minute, are justly deemed guilty

Samuel Jones

Samuel Jones

Set aside the fact that Curtis had antislavery efforts in mind when he wrote all of this and I don’t see a great deal one could argue with. We might not reach for treason so quickly today as Curtis did, preferring some other offense, but his reasoning on each point appears sound and practical. His definitions don’t perfectly fit events in Kansas, but they come close. Given the real fear of slave revolt and already-extant inattention to the finer points of law, I come away from this with the strong sense that when most proslavery men said treason, they meant it. It served their purposes to make the claim, and some of the lawyers probably knew better, but it all fits together too well to read the accusations as entirely cynical.

Kansas, Boston, and Treason in the Nineteenth Century, Part Three

Samuel Newitt Wood

Samuel Newitt Wood

Yesterday we looked at the first prong of Samuel Curtis’ test for treason as it related to fugitive slave rescues in his own Boston and, later on, to the events precipitating the Wakarusa War in Kansas. Curtis specified that one could levy war against the United States by any organized attempt to thwart the execution or enforcement of its laws by force. The fugitive rescuers surely did that. The free state movement, as of the end of 1855, had done the same if one counts the laws of Kansas as laws of the United States. If one does not, then they remained innocent. The Kansas-Nebraska Act, as customary for laws organizing territories, granted lawmaking authority to the territorial government with the proviso that Congress retained the power to review and annul such laws. Whether that makes them federal or not probably depends on where one stands. In the strictest reading, they don’t qualify. Functionally, however, they might come close enough to make little difference.

What of the nature of combinations to resist the laws, then? While the free state movement had a long paper trail, when Samuel Wood roused some men and came to Jacob Branson’s rescue he appears to have acted on his own authority. He led a militia company, but he made no effort to secure permission from the free state leadership to mount the rescue. Did relatively spontaneous acts count as conspiracy?

Curtis thought so:

Such a conspiracy may be formed before the individuals assemble to act, and they may come together to act pursuant to it; or it may be formed when they have assembled, and immediately before they act. The time is not essential. All that is necessary is, that being assembled, they should act in forcible opposition to a law few the United States, pursuant to a common design to prevent the execution of that law, in any case within their reach.

You didn’t have to plan ahead; you could treason on short notice. Curtis doubtless had in mind heat of the moment efforts to free slaves who dared steal their bodies from their rightful owners, but the relief of Branson counted too.

Of course, levying war still meant something more closely approximating war. You had to use “actual force” to graduate from talk to treason. What counted as that force? The Army of Northern Virginia qualifies and Samuel Wood’s band operated in similar ways, if on a vastly smaller scale. How big and organized did a treasonous conspiracy have to get? Not very:

It is not necessary that there should be any military array, or weapons, nor that any personal injury should be inflicted on the officers of the law. If a hostile army should surround a body of troops of the United States, and the latter should lay down their arms and submit, it cannot be doubted that it would constitute an overt act of levying war, though no shot was fired or blow struck.

Samuel Newitt Wood

Samuel Newitt Wood

Nobody shot Samuel Jones, but the threat of force worked just as well. If we grant that for the people Jones and his allies intimidated at the Kansas polls, then we can’t exclude the same tactics used against them. Samuel Wood and his men came out with guns, in a rush, outnumbering Jones and demanding his prisoner. It didn’t take a genius or a clairvoyant to know what would probably happen if he refused to yield up Branson. As Curtis wrote:

The presence of numbers who manifest an intent to use force, if found requisite to obtain their dmeands, may compel submission to that force, which is present and ready to inflict injury, and which may thus be effectually used to oppose the execution of the law. But, unfortunately, it will not often be necessary to apply this principle, since actual violence, and eve murder, are the natural and almost inseparable attendants of this great crime.

To cast a net broad enough to consider Jones acting under the laws of the United States also requires us to sweep up Kansas poll workers. Unlike the Sheriff, they had the letter of the Kansas-Nebraska Act on their side. If it did not constitute a law of the Untied States, then no act of Congress could. Jones’ menacing of them looks at least as much like treason as Wood and company menacing him. Neither incident resulted in violence, contrary to Curtis’ expectations, but they didn’t need to.

Kansas, Boston, and Treason in the Nineteenth Century, Part Two

Samuel Jones

Samuel Jones

In October, 1851, Samuel Curtis gave his federal grand jury a definition of treason (PDF). He expected, in a Boston where antislavery Americans had lately rescued a few fugitive slaves from those who aimed to steal them back to slavery, that the jury might need to know. Curtis laid out a three point test: The accused must conspire. That conspiracy must involve obstructing the enforcement of a law of the United States. The conspiracy must then use force to that end. All of these applied to Bostonians who had saved enslaved Americans from recapture. Together, these things constituted levying war against the United States. They might, depending on how one read them, apply to the free state movement in Kansas as well.

Curtis did better than nineteenth century bullet points. He wanted his jurors to understand the law thoroughly and so gave a further explanation that runs to about a page of printed text. That section opened with an important qualifier:

It is not enough that the purpose of the combination is to oppose the execution of a law in some particular case, and in that only. If a person against whom process has issued from a court of the United States, should assemble and arm his friends forcibly to prevent an arrest, and in pursuance of such design, resistance should be made by those thus assembled, they would be guilty of a very high crime, but it would not be treason

In a Bostonian context, this means one could throw together to rescue Shadrach Minkins or Anthony Burns and not commit treason. Over in Kansas, Samuel Jones had a warrant to arrest Jacob Branson. He had that warrant under the authority of the federally-constituted territorial government. I don’t know if a territorial court operating under that law counts as a court of the United States rather than one of Kansas Territory, but even granting Jones the point Branson and his rescuers might fall short of Curtis’ definition of treason. They opposed the execution of the law, by force, in one particular case.

Samuel Newitt Wood

Samuel Newitt Wood

However, if the individuals combined

forcibly to prevent any person from being arrested under that law, and with such intent, force is used by them for that purpose, they are guilty of treason.

Here Samuel Newitt Wood and company get into deeper trouble. They as much as told Jones that they would rescue anybody he came after with a warrant. Though the people of Lawrence tried to disavow the rescue of Branson, they had made rhetorical pledges to resist Kansas’ laws too. Their resistance didn’t extent to force, yet. They took pains to emphasize they resisted the laws of Kansas, not the United States. Charles Robinson, at least, understood resisting Wilson Shannon by force as resisting federal authority. Whether he meant that as a precise legal judgment or just a recognition of how Shannon might treat things, the ambiguity remains.

Robert E. Lee, Virginia aristocrat, military officer, and future confederate general

Robert E. Lee, slave catcher

One might argue that the resistance to one law doesn’t really count, just as resisting on behalf of one person doesn’t count. Curtis anticipated the argument and would have nothing of it:

The law does not distinguish between a purpose to prevent the execution of one, or several, or all laws. Indeed, such a distinction would be found impracticable, if it were attempted. If this crime could not be committed by forcibly resisting one law, how many laws should be thus resisted to constitute it? Should it be two, or three, or what particular number short of all? And if all, how easy would it be for the worst of treason to escape punishment, simply by excepting out of the treasonable design, some one law.

The judge has a point. If the Army of Northern Virginia scrupulously held to the fugitive slave law, and they did so enthusiastically when they had the chance in Pennsylvania, then that hardly made them innocent of treason. Robert E. Lee commanded, among other things, the largest slave patrol in American history.

Kansas, Boston, and Treason in the Nineteenth Century, Part One

Reading sources hostile to the free state movement, and antislavery in general, one often comes across mention of their treasonable nature. With regard to the wildcat state government that came to operate in Kansas in late 1855 and early 1856, the connection doesn’t require much explanation. They really did aim to set up an illegal government within the territory of the United States, in opposition to the legally-constituted government placed in charge of that same territory. When the guilty parties work only to obstruct the fugitive slave law, to the point of violence, the accusations seem more strained. Strained, however, does not mean insincere, hysterical, or inaccurate. I have previously tried to understand accusations of treason in the context of those making them and the situation at hand. I lacked a grounding in nineteenth century jurisprudence necessary to say more. Thanks to Al Mackey’s research (PDF), I can do better now.

On October 15, 1851, your author’s negative one hundred twenty-ninth birthday, Justice Samuel Curtis of the United States Circuit Court in Boston issued instructions to a grand jury. It doesn’t seem that Curtis had a specific case in mind when he gave these instructions, but rather made them in anticipation of cases likely to come before the jurors during their term. We know that Boston didn’t have another fugitive rescue until Anthony Burns, but he didn’t.

Curtis opens by explaining why we must take treason so seriously, noting that it alone receives a precise definition in the Constitution.

It is there made to consist in levying war against the United States, or adhering to their enemies, giving them aid and comfort. This language is borrowed from an ancient English statute, enacted in the year 1352 (25 Edw. III.), mainly for the purpose of restraining the power of the crown to oppress the subject by arbitrary constructions of the law of treason.

That all sounds very high school civics. The Founders, understanding that accusations of treason could lead to serious oppression, precisely defined the crime. Themselves a band of traitors against the crown of Great Britain, they had experience on both sides of the law. To argue that either small bands rescuing fugitive slaves or a protest movement oriented towards achieving legitimacy with the United States government levied war against it may seem quite the stretch to us.

Curtis didn’t think so. According to “settled interpretation”

the words “levying war,” include not only the act of making war for the purpose of entirely overturning the government, but also any combination forcibly to oppose the execution of any public law of the United States, if accompanied or followed by an act of forcible opposition to such law in pursuance of such combination.

Curtis couldn’t read the free state movement into this back in 1851, but surely would have recognized it later just as he recognized treason in fugitive slave rescues. He provided the jury a helpful checklist for diagnosing traitors:

(1) A combination, or conspiracy, by which different individuals are united in one common purpose.

Whether the Boston vigilance committee or the free state party, we have that. The Blue Lodges gave the border ruffians much the same. But anybody could unite in common purpose. If you go out with friends to see a movie, you’ve done as much.

(2) This purpose being to prevent the execution of some public law of the United States by force.

Our night at the movies slips the net here. The free state movement, for all its rhetoric of resistance, also wrapped itself in the flag and declared specifically for a public law of the United States: the Kansas-Nebraska Act. Though one sees occasional reference to the Kansas-Nebraska Act’s sanctity from proslavery men, they generally defended their activities in terms of counteracting efforts by Emigrant Aid Societies. They concerned themselves, on paper, with tit for tat rather than the sanctity of the law, except for the Kansas slave code.

The free state party, whatever occasional disavowals its leaders made, did have active military companies enlisted for its cause. Prior to fooling Wilson Shannon into authorizing them, those forces occupied a deeply ambiguous role. However, they did not meaningfully satisfy Curtis’ third criterion:

(3) The actual use of force, by such combination, to prevent the execution of that law.

Nobody attacked the United States Army, revenue officers, or federal marshals. Andrew Reeder faced armed threats in regard to the execution of his duties, but the proslavery men declined to consummate them. Benjamin Franklin Stringfellow attacked the governor and the matter ended with pistols drawn, but he had a personal grievance against Reeder for calling him a border ruffian.

By a very strict reading Curtis, it seems no one in Kansas had committed treason. The judge, however, intended a more expansive reading and offered it up to his jurors.

South Carolina’s First Nullification


John C. Calhoun

One simply can’t run a country according to the plan that the nullifiers and states rights men advocated. If a state can overrule federal law on its own say-so, then federal law loses its force. With federal law impotent, the federal government becomes irrelevant and soon dissolves. Some vestiges might remain, but as a practical matter one reduces the Union to a collection of smaller, quarreling nations. Given many states had neither the population nor the economy to manage easily on their own, they would then likely consolidate into somewhat like-minded blocs. These groups would probably not repeat the same mistakes as the previous consolidation. Some nullification proposals foresaw essentially that, most notably the idea that the United States should try having two presidents with veto power over one another. One would come from the North, the other from the South. The Southern president would thus keep the Union forever safe for slavery.

Roger Taney, Chief Justice of the Supreme Court

Roger Taney, Chief Justice of the Supreme Court

The criticism holds true for matters large and small, in principle. We could leave things there, but doing so would require us to ignore the realities of the past. Certainly one could not expect a nation to endure large-scale acts of nullification. If a state or seven rejected losing the presidency or the program of a victorious party in national elections, that more obviously strains the Union and puts nineteenth century democracy in doubt than if it nullifies on a smaller scale. As a practical matter, many Northern states nullified the Fugitive Slave Act. Wisconsin took the extra step of doing it outright, leading to the Taney Court ruling that states had no power to nullify federal laws in Abeleman vs. Booth. Therein, the Court made much the same argument in contemplating the assertion that a state court could interfere with and prevent the operation of federal law:

It would seem to be hardly necessary to do more than state the result to which these decisions of the State courts must inevitably lead. It is, of itself, a sufficient and conclusive answer, for no one will suppose that a Government which has now lasted nearly seventy years, enforcing its laws by its own tribunals and preserving the union of the States, could have lasted a single year, or fulfilled the high trusts committed to it, if offences against its laws could not have been punished without the consent of the State in which the culprit was found.

The rebelling states, of course, would without a trace of irony cite the practical nullification of the Fugitive Slave Act by the North as one of the injustices which drove them to rebellion. They correctly understood the tradition of states rights rhetoric: the issue, however contested, did not go our way and therefore we claim the right to declare ourselves winners. Obviously no nation could let such a thing stand and call itself democratic even by nineteenth century terms. Yet the United States did eventually let it stand. The nation did not spend vast sums and tie up the military to do as it had done to Anthony Burns a second time. Before that, it accepted nullification of a kind from South Carolina. I draw this account from Freehling’s Prelude to the Civil War: The Nullification Controversy in South Carolina 1816-1836.

Anthony Burns

Anthony Burns

South Carolina’s cotton flowed out of the nation through Charleston and a few other lowcountry ports. Those ports thus naturally had ships in and out regularly, if nothing on the volume that New York, Baltimore, Boston, or New Orleans did. Like any functioning port, Charleston saw ships from diverse places. Many of its regular visitors hailed from the North and abroad. These ships had the usual complements, including some black seamen. Those seamen could roam freely about Charleston. To Charleston’s whites, that meant that northern blacks tainted by abolitionism could speak to their slaves. Worse still, Haitian seamen could walk free and tell anybody who asked about their country’s successful slave revolt. All of this in a region of the state where enslaved blacks vastly outnumbered whites. To further complicate matters, many enslavers from Haiti had passed through Charleston when fleeing the revolution. In the 1820s, they had had direct, personal knowledge of what a real slave uprising looked like. If they missed the significance, than the fact that Denmark Vesey used Haiti as an example of what his conspiracy could achieve would have highlighted it to even the dullest wits.

Charleston hung Denmark Vesey on July 2, 1822. Before he died, he brought the black seaman “problem” further into the limelight. With the lowcountry’s enslavers anxious about revolts, feeling embattled by the recent debates over the fate of slavery in Missouri, and a fresh uprising narrowly averted, they felt they had to do something. To answer the dire menace to their lives and their property in lives, South Carolina’s enslavers passed a law that required every black sailor locked away in the town jail for the duration of his ship’s sojourn in Charleston. Thus Charleston imprisoned the free to secure the enslaved at the end of the year.

All of that worked out just fine for Charleston’s fretting whites and just terribly for its free black visitors, precisely as intended. However, it put South Carolina on the wrong side of the United States and the United Kingdom. The two nations had a treaty granting their sailors free access to one another’s ports. This treaty, declared the Constitution

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.

South Carolina passed a state law to the contrary. The UK protested to the Secretary of State, John Quincy Adams. Freehling says that Adams might have gotten Charleston to ignore the law for a time. By the middle of the next year, Haitian and other black seamen moved about Charleston freely once more. This did not suit Charleston’s still-anxious citizens. They arranged a mass meeting in late July, forming the South Carolina Association to supervise enforcement of all South Carolina’s laws controlling black lives. The association named standing committees to do that work, which they soon commenced.

That enforcement led in short order to a court case. Charleston’s sheriff seized a free Jamaican black named Harry Elkinson and locked him up. Elkinson protested and sought habeas corpus proceedings, which he got. Supreme Court Justice William Johnson found the seaman law in violation of treaty and therefore invalid. However, Johnson held that he couldn’t order Elkinson’s release as his power extended only to federal prisoners. The South Carolina Association, for its part, declared the state sovereign and insisted that it had not surrendered its power to suppress revolts. Any act designed toward that end rightfully fell within its power, not the capacity of the United States. The state had not yet articulated a full-blown theory of nullification as Calhoun would later invent, but in pleading its case Benjamin F. Hunt and Isaac E. Holmes laid out an important precursor. Johnson didn’t buy it and laid out a strong refutation in his opinion:

Where is this to land us? Is it not asserting the right in each state to throw off the federal Constitution at its will and pleasure?

John Quincy Adams

John Quincy Adams

Johnson’s opinion provoked a firestorm in South Carolina. If the state could not pass laws to govern its slaves and keep them in slavery, then how could it retain slavery at all? All Haiti’s alleged woes came back to a distant government meddling with slavery. Now they received the same at the imperious hands of a Supreme Court justice. The state ignored the decision and continued jailing sailors. John Quincy Adams kept getting protests from the United Kingdom. He reached out to the Attorney General, William Wirt, for an opinion on the law. Wirt came down firmly against it. In July of 1823, Adams forwarded Wirt’s argument and the protests to South Carolina, asking the legislature to fix the problem.

Though South Carolina’s legislature could not settle on what tone to take, they agreed on the substance. The Senate held that “self preservation”

will never by this state, be renounced, compromised, controlled, or participated with any power whatever.

The House affirmed

The measures directed towards colored persons brought within the territory of this state, are simply part of the general system of domestic police, defensible as such, and absolutely necessary to ensure the safety of the citizens.

In other words, John Quincy Adams could best repose Wirt’s opinion and the British protests in some area perhaps well-suited to the cultivation of mushrooms but otherwise ill-disposed to agriculture. The state acted accordingly, continuing to imprison sailors. Washington and London could protest all they like, but South Carolina did as it willed. London could not perhaps force the issue short of a war. Washington chose not to and let the nullification stand.

Here, for the first time, the state grappled with the issues of the later Nullification Crisis. South Carolina cited the same reserved power of the states to nullify a treaty in the name of internal security that it would later call upon to nullify a federal law. In both cases, its constitutional thinkers discovered this power to save slavery. Victory in the first instance spurred South Carolina onward. If nullification worked once, it could work again.

Big Springs Resolutions, Part Two

James Henry Lane

James Henry Lane

Big Springs Convention Proceedings: parts 1, 2, 3, 4, 5

At Big Springs, the free state movement endorsed James Lane’s platform denying that they had anything to do with abolitionists and promising that they wanted slavery out of Kansas and Kansas alone, accepting the right of other places to decide for slavery just as they decided against it. They further committed themselves to aiding in the recovery of slaves who stole themselves into Kansas. They came together despite their natural partisan inclinations, combining against the imposition of slavery upon them alone and with the expectation that they would part company once Kansas had rendered its verdict. Of course, that meant that Kansans had to decide for Kansas and thus:

we will oppose and resist all non-resident voters at our polls, whether from Missouri or elsewhere, as a gross violation of our rights and a virtual disfranchisement of our citizens.

Lane’s condemnation could include new voters brought in by the Emigrant Aid Society, some of whom had come with intent to stay but then found Kansas not the promised land of milk and honey. In leaving, they retroactively made themselves into a kind of antislavery filibuster. But then one could only know that in after the fact, whereas the Missourians had made it clear from the start that most of them had no intention of remaining within Kansas.

The language of resistance should naturally be read in light of the violent seizure of past polls, but free soil resistance had heretofore confined itself to the field of rhetoric. If necessary, Lane’s resolution could expand that resistance to include military companies such as the one that Samuel Wood led and had featured into the Lawrence Fourth of July festivities. They had their rights as white American men to protect.

George W. Brown

George W. Brown

The quest to build a big tent movement required many concessions which some antislavery men would bear only reluctantly, such as Lane’s proposed black law:

The the best interests of Kansas require a population of free white man, and that in the state organization we are in favor of stringent laws excluding all negroes, bond or free, from the territory. That nevertheless such measures shall not be regarded as a test of party orthodoxy.

I know I’ve talked about this provision before, but Lane wrote it into the platform. However, the final sentence gave some leeway to the less committed racists. Men like George W. Brown could condemn the resolution and remain members in good standing of the party, despite its including in the platform and the generally mandatory nature of such affirmations. I don’t have the sources to say this with confidence, but the measure reads like one that came originally without the proviso and received it in the course of deliberations.

The black law’s proponents could naturally point to their measure as one sure to keep slavery from Kansas. Likewise they could calm fears that blacks required slavery to prevent them from becoming horrid menaces to society. Neither would present any problem in a Kansas free from black Americans. But what of the enslaved people already in Kansas? Lane had a resolution for that too:

we will consent to any fair and reasonable provision in regard to the slaves already in the territory, which shall protect the masters against injustice and total loss.

In short, the free state party would consider some form of compensated, gradual emancipation as had been undertaken in the northern states between the 1780s and 1804. Thus Kansas’ resident slaveholders need not fear for their investment in lives. If they wished to remain, they could recoup at least some of their capital. Or they could take the far easier route and sell their human property across the line in Missouri. Many northern slaveholders had opted for that strategy as days of emancipation drew near, even in defiance of laws to the contrary.

Big Springs Resolutions, Part One

James Henry Lane

James Henry Lane

Big Springs Convention Proceedings: parts 1, 2, 3, 4, 5

The Big Springs Convention decided on nominating Andrew Reeder for delegate to Congress. They, despite initial reluctance on the part of some, signed themselves up for the Lawrence radicals’ plan to create their own government. They nigh-unanimously committed themselves to keeping black Americans out of Kansas. But a nineteenth century mass meeting had to have its resolutions. The resolutions on the platform, the work of James Lane’s committee, constituted a proper manifesto which the convention-goers considered binding on the party as a whole. Other resolutions, reported out of a separate committee and authored by Andrew Reeder, came as the price of involving Reeder in the movement and, the convention hoped, readers would understand them as more polemic than policy. R.G. Elliott further adds that Reeder intended those resolutions as a way for him to defend himself against the various attacks on his land speculations and disputes with the legislature.

Elliott’s article includes what look like the complete texts of both sets of resolutions in a rather long footnote. Lane’s platform begins in classic big tent form, articulating the by now canonical grievances against the proslavery party’s election stealing and otherwise tyrannical attack on white male liberties. It then proceeds to the urgency of unity among Kansas disparate antislavery groups:

setting aside all the minor issues of partizan politics, it is incumbent upon us to proffer an organization calculated to recover out dearest rights, and into which Democrats and Whigs, native and naturalized citizens, may freely enter without any sacrifice of their respective political creeds, but without forcing them as a test upon others.

The free state movement declared itself an antislavery party for Kansas and nothing more. While Kansas had no issue save the slavery question, they would remain so. But the resolution foresaw a time when the state of Kansas would have its institutions settled. Then Lane foresaw the movement disbanding back into its constituent parts and resuming politics as usual. By expressing their unity in such a contingent manner, Lane emphasized how the movement understood themselves as forced together by necessity and thus, in a sense, their own thing that arose out of the particular circumstances in Kansas and in reaction to the abuses of the border ruffians and their Kansan compatriots. They had nothing to do with antislavery movements in other states:

the stale and ridiculous charge of abolitionism, so industriously imputed to the free-state party, and so pertinaciously adhered to, in spite of all the evidence to the contrary, is without a shadow of truth to support it; and that it is not more apparent to ourselves than it is to our opponents, who use it as a term of reproach to bring odium upon us, pretending to believe in its truth and hoping to frighten from our ranks the weak and timid, who are more willing to desert their principles than they are to stand up under persecution and abuse with a consciousness of right.

Andrew Horatio Reeder

Andrew Horatio Reeder

Lane’s platform continued with another concession that, while also made by the conventions in Lawrence, had to rankle the more committed abolitionists in their number:

we will discountenance and denounce any attempt to encroach upon the constitutional rights of the people of any state, or to interfere with their slaves, conceding to their citizens the right to regulate their own institutions and to hold and recover their slaves, without any molestation or obstruction from the people of Kansas.

Few abolitionists ever proposed to raid into the South and steal slaves away to freedom, but probably none would have happily committed themselves to permitting the recovery of slaves who stole themselves from free soil. While they surely inflated their exploits after the war rendered them the heroes of the day, plenty considered it a point of honor to help runaways who made it to their doorsteps. Here they agreed, at least for the moment, to abide by even the odious Fugitive Slave Act.

Acts of the Bogus Legislature, Part Seven

John Stringfellow, Speaker of the House of Kansas

John Stringfellow, Speaker of the House of Kansas

Parts 1, 2, 3, 4, 5, 6. Greeley’s pamphlet

The Bogus Legislature thought things through. They went back and forth across every possible way that one might oppose and undermine slavery. They laid down draconian punishments for the simple act of speaking against slavery, made virtually every step of helping a slave that dared steal back the life rightly owned by another into a grave crime, and bound all the territorial government to their edicts by criminalizing noncompliance by officeholders and requiring them to swear an oath to defend the Fugitive Slave Act. Lest one think that local officials might push back against all this, the Assembly reserved to itself the right to appoint every last one of them.

The Assemblymen even had juries stacked in their favor by excluding antislavery men from hearing cases on violations of the legislature’s laws to protect slavery. But that guarantee extended only to those particular laws. What about a freedom suit? Or a disputed sale? As property, slaves could become subject to lawsuits on many grounds. An antislavery jury could use those disputes to mitigate and undermine slavery, even if they could not abolish it for all Kansans. They might assign disputed slaves to owners who they thought less brutal than others, or free those who made freedom suits as a matter of course. John H. Stringfellow and his friends in the House and Council of Kansas saw the vulnerability and acted to close it. Jurors

in any cause in which the right to hold any person in Slavery is involved, nor in any case in which any injury done to or committed by any slave is in issue

could include

[N]o person who is conscientiously opposed to the holding of slaves, or who doe snot admit the right to hold slaves in this Territory

The judges had to swear an oath to defend the Fugitive Slave Act. So did the jurors. That left only the lawyers working any given case. The Assembly had a provision for them too. Attorneys at law required a license. None but white men could practice law in the territory, but even those paragons of race and sex must receive the approval of one of Kansas courts. To receive their credential, they had to take what appears to be the same oath required of officeholders to support and defend the Fugitive Slave Act. As a great many politicians, then and now, began their careers as lawyers this would help ensure that any home-grown Kansas politicos of decades to come stayed right by slavery.

Horace Greeley

Horace Greeley

Greeley calls these laws test oaths. If you’ve read the Constitution, you might remember this line:

no religious test shall ever be required as a qualification to any office or public trust under the United States.

Back in the day, this meant a great deal. The original Constitution granted very few personal rights, most famously habeus corpus, but the framers saw fit to include this as well. At the time, most colonies and states had such oaths on the books. If you wanted to hold colonial, and then state, office you had to swear obedience to the established church. The precedent runs all the way back to England, where religious tests excluded Catholics from government and the universities at Oxford and Cambridge. Now a new orthodoxy required protection and the proslavery men determined to give it the most thorough protection their unanimity could supply.

Acts of the Bogus Legislature, Part Six

Horace Greeley

Horace Greeley

Parts 1, 2, 3, 4, 5. Greeley’s pamphlet

Horace Greeley’s pamphlet of outrages finishes with the Act to Punish Offenses against Slave Property on the high note of explicitly outlawing any dissent from proslavery orthodoxy in Kansas. But the generous men of the Legislative Assembly gave him more to work with still. Greeley obliged.

In the Act to regulate Elections, the Assembly turned to that most sensitive of issues: who would henceforth legally vote in Kansas? Voters must of course come entirely from the male half of the species, twenty-one years and up. Every white man of age

who shall be an inhabitant of this Territory, and of the county or district in which he offers to vote, and shall have paid a territorial tax

The franchise did not extend to soldiers or sailors resident in Kansas by virtue of their service, no matter their age or whiteness. It did, however, extend to Indian men made citizens by treaty or by “adopt[ing] the customs of the white man”.

The act took the better part of valor on just what made a voter into an inhabitant of Kansas, as befitting the work of a legislature populated by men elected by voters Kansan for precisely a day. The Assembly thus retroactively legalized the Missouri-based election stealing that had ruled Kansan politics for all their short history and welcomed more to come. Why wouldn’t they? It got them elected, so it may as well also keep them in office next time around.

But the legislature did have some standards, beyond excluding women, children, and Indians who did not act sufficiently white,

[n]o person who shall have been convicted of any violation of any provision of an act of Congress, entitled “An act respecting fugitive from justice, and persons escaping from the service of their masters,” approved February 12, 1793, or of an act to amend and supplementary to said act, approved 18th September, 1850 […] or any offence deemed infamous, shall be entitled to vote in any election, or to hold any office in this Territory

John Stringfellow, Speaker of the House of Kansas

John Stringfellow, Speaker of the House of Kansas

Nobody ever received a conviction under the Fugitive Slave Act of 1850, but they couldn’t know that at the time.

Furthermore, the legislature adopted just the measure that the proslavery men once considered entirely unacceptable. If anybody disputed a voter’s qualifications, they empowered the judges of election to swear them to an oath. The oath Andrew Reeder proscribed demanded voters testify to their actual residence in Kansas. The Assembly’s oath did not so transgress their rights as to insist on such testimony. Instead, challenged voters must swear to

sustain the provisions of the above recited acts of Congress, and of the act entitled “An act to organize the Territories of Nebraska and Kansas

While the Kansas-Nebraska Act did insist on actual residence on the land, it’s very clear from how they’ve structured their oath that the legislature did not consider that provision operative. Instead, anyone who voted must swear to uphold the Fugitive Slave Act. Thus any antislavery man asked to vote could be pressed on the question and forced to give up his vote or risk prosecution for perjury.

James Mason

James Mason, author of the Fugitive Slave Act

To make especially sure that this achieved the effect to which the Assembly aspired, they applied the same oath to

each member of the legislative assembly, and every officer elected or appointed to office under the laws of this Territory

The full oath ran thus:

I, ——, do solemnly swear upon the holy evangelists of Almighty God, that I will support  the Constitution of the United States, and that I will support and sustain the provisions of an act entitled ‘An act to organize the Territories of Nebraska and Kansas,’ and the provisions of the law of the United States, commonly known as the ‘Fugitive Slave Law,’ and faithfully and impartially, and to the best of my ability, demean myself in the discharge of my duties in the office of ——; so help me God.

Breaking that oath, in addition to likely putting one in violation of the laws protecting slavery property, would put one in peril of additional pleasure of trial for perjury.