“Improper to express any opinion” The House Minority Report

Howell Cobb

The Caning, Parts 1, 2, 3, 4, 5, 678, 9, 10, 11, 1213, 14, 15

The House report on the caning

The Senate committee on the caning of Charles Sumner passed the matter over to the House of Representatives, which had the sole power to judge and punish its own members. The House had already acted, forming a committee that investigated thoroughly. They questioned Sumner in his room, in deference to his delicate condition, and invited Brooks to participate for his own defense. Brooks recommended one witness but otherwise appears to have taken no part. The committee’s majority found essentially as we have already seen.

Nor did the minority disputed the essential facts: Brooks took offense at Sumner’s speech and caned him. The minority differed chiefly in offering lengthy quotes from The Crime Against Kansaswhich the report makes superfluous by including the full text. They stood silent on the majority’s claim that Brooks struck with a lethal weapon, instead declaring that Sumner suffered “repeated and severe blows.”

Then the minority started lawyering their way out of doing anything. Since the Constitution forged a government of limited powers, no house of Congress could have some faculty it did not grant. Those didn’t include any talk about general privileges of the Senate or House, let alone that each chamber had a sovereign right to declare its own. If one read the Constitution that way,

then the House has the power to declare that an act committed to-day, which is in violation of no provision of the Constitution, no law of the land, no rule of the House, and which is therefore, so far as the citizen may be informed, innocent in itself, a violation and a breach of its privileges, and to inflict punishment for the same.

On paper, that all makes good sense. No part of the government should have infinite, unaccountable power. Reading it in context does the minority few favors. They have argued, in essence, that since the House lacks a rule against assaulting a Senator it can’t do anything about Brooks. If they wanted to change things, then the majority should use that standard rejoinder of politicians who pretend openness to change while opposing it to the utmost: amend the Constitution. At most, Brooks should face some kind of ordinary legal case.

One could make a fair argument that the House of Representatives should not try its members for offenses, but the Constitution gave it wide power to set rules for just that purpose. It had, in fact, tried John Quincy Adams for his conduct, albeit conduct on the floor. There are genuine reasons to look askance at a legislature making itself into a general purpose court for offenses not specifically against its rules or which take place beyond its walls. If a Senator today ran over someone with his car, we wouldn’t expect the Senate to convene and subpoena his blood alcohol level. One could also argue that no one foresaw a member of one chamber launching a physical assault on a member of another and the extraordinary circumstances warranted more consideration than the minority gave them.

Howell Cobb and Alfred Greenwood, the minority, concluded that

neither House has any privileges except those which are written and declared in either the Constitution or some law or rule passed in pursuance thereof, and that the facts developed by the evidence show no violation of any such written and recognized privileges

Thus they recommended to the full House a resolution that it had no jurisdiction and “deem it improper to express any opinion on the subject.”

The Burned Over District and the Jerry Rescue

Not every fugitive slave rescue could involve a pitched battle like what happened at Christiana, surely to the relief of all involved. Nobody wanted to get shot, even if they accepted the risk in certain circumstances. Most fugitives captured ended up back in slavery with the cooperation or silent indifference of the white North, or by the simple expedient of the slave catchers seizing their quarry and bolting South without risking the proper channels. We should not take the inspiring, if also deeply troubling, stories of the more dramatic rescues as evidence of a unified North committed to ending slavery. One would have trouble finding that even fairly late in the war.

The Burned Over District (Wikimedia Commons)

The Burned Over District (Wikimedia Commons)

In Upstate New York, the Burned Over District got its name from the waves of religious revivalism that swept over it in the few decades before the Civil War. The area gave birth to the Church of Jesus Christ of Latter-Day Saints and the Adventist family of denominations. But the revivalists did not limit themselves to matters spiritual. The District helped make abolition from a movement largely focused on persuading slaveholders and limited to small discussion groups into a popular, if still very much minority, affair. Something similar, if on a smaller scale, happened with women’s rights. The area also gave us temperance, which we took far too long to give back.

All of those public meetings, sermons, lectures, platforms, and papers translated into real action too. The Burned Over District gave birth to the nation’s first antislavery party, the tiny Liberty Party. Its small share of the New York vote might have swung the election of 1844 from Henry Clay to James K. Polk, as Clay and his Whigs even then had a somewhat more moderate position on slavery than the Democrats did. One can thus presume that at least some Liberty votes came at the expense of Clay, who lost New York by a margin of 5100 votes. The Liberty Party delivered 15,800 votes for its own James G. Birney. Had Clay won in 1844, the entire course of the following decades might have run very differently. Or it might not have, since Clay would face many of the same pressures Polk did.

At any rate, the Liberty Party had its state convention in Syracuse, a major station on the Underground Railroad, in 1851. Secretary of State Daniel Webster warned the party, and Syracuse in general, that the government would enforce the Fugitive Slave Act even under their noses and on October 1, as they convened in a local church slave catchers took William McHenry, a cooper who escaped slavery in Missouri. In Syracuse, he went by the name Jerry.

His captors told Jerry that they wanted him for theft, put him in irons, and then told him the truth. Jerry then put up a fight, but did only as well as someone in chains could expect. Word reached the Liberty Party in their church. The wife of the commissioner who would hear the case may have tipped them off. Hundreds of Liberty Party faithful and other abolitionists stormed the jail, under the leadership of prominent abolitionists Gerrit Smith and Samuel J. May and with Seward’s Higher Law as their ideological backbone. They took Jerry out and saw him off to Canada.

The grand jury indicted twenty-four people, half white and half black, for their roles in the Jerry Rescue. In a step back from the charges after the Battle of Christiana, which had yet to reach trial, they faced only accusations of rioting instead of also treason. Nine of the black defendants remained safe in Canada. Of the remainder who stood trial, only one black man received a conviction. He died during the course of appeals.

This and the previous rescues sound wonderful to most modern people, but imagine what they looked like in the South. The Georgia Platform came out in December of 1850, telling the nation that only the Fugitive Slave Act’s zealous enforcement by the North held the South to the Union. Now they saw mobs of Northerners ready to in effect overthrow the Union by jury nullification, by base violence, and in fact by treason, to subvert that very act’s enforcement. The minds of the long dead do not sit on a shelf where we can peer into them to know their every reaction, but it must have resembled the way Northerners looked on a later South using the same tools to subvert civil rights laws.

The Unionism of Cobb, Stephens, and Toombs rested on a plank to which the North eagerly applied a saw. How long could it last? Every rescue further armed their fire-eating opposites.

The Georgia Platform

America after the compromise. (via Wikipedia) Southern Unionists would turn fire-eater.

America after the compromise and forever, or Southern Unionists would turn fire-eater. (via Wikipedia)

The first blow to South Carolina Governor Seabrook’s conspiracy to break the Union came in the form of Texas’ private choice to take federal cash for its western claims, but the first public blow came from elections for Georgia’s state convention. Howell Cobb, Alexander Stephens, and Robert Toombs successfully convinced the voters to send 240 Unionist delegates to that convention of 264, a total of 90.91%.

Such an overwhelming Unionist win might look like a profound repudiation of secession. On December 10, 1850, the convention adopted the Georgia Platform which resolved that:

if the thirteen original parties to the contract, bordering the Atlantic in a narrow belt, while their separate interests were in embryo their peculiar tendencies scarcely developed, their revolutionary trials and triumphs, still green in memory, found Union impossible without Compromise, the thirty-one of this day, may well yield somewhat, in the conflict of opinion and policy, to preserve that Union which has extended the sway of republican government over a vast wilderness to another ocean, and proportionally advanced their civilization and national greatness.

Compromise and Union, as one would expect from the election. Georgia maintained its attachment to the principle that the Congress had no power to regulate slavery in the territories, but would trade purity of principle for a fair deal. Looking at the final measures, the convention saw

the rejection of propositions to exclude slavery from the Mexican territories and to abolish it in the District of Columbia, and whilst she does not wholly approve, will abide by it as a permanent adjustment of this sectional controversy.

Emphasis mine. Compromise rarely leaves everyone entirely happy, but Georgia resolved to live with the new status quo. They could have slavery with Union, provided the finality of the Armistice. Georgia could give a little to get a little. But

the State of Georgia in the judgment of this Convention, will and ought to resist even (as a last resort,) to a disruption of every tie which binds her to the Union, any action of Congress upon the subject of slavery in the District of Columbia, or in any places subject to the jurisdiction of Congress incompatible with the safety, domestic tranquility, the rights and honor of the slave-holding States, or any refusal to admit as a State any territory hereafter, applying, because of the existence of slavery therein, or any act prohibiting the introduction of slaves into the territories of New Mexico and Utah, or any act repealing or materially modifying the laws now in force for the recovery of fugitive slaves.

Georgia proclaimed for Union, but only subject to the Armistice’s finality, only subject to the preservation of slavery in Washington, only subject to the continued admission of slave states, only subject to the preservation of slavery within the slave states, only subject to New Mexico and Utah remaining open to slavery, and only subject to the new Fugitive Slave Act’s inviolacy.

Those conditions reiterate the Armistice terms, but at the very least also lay markers against nigh any future source of sectional strife even should it come on grounds unrelated to the final settlement. More ominously, Georgia pledged itself to disunion if, on some future date, it did not receive satisfaction. The convention laid one marker above all others in the platform’s final resolution:

That it is the deliberate opinion of this Convention, that upon the faithful execution of the Fugitive Slave Bill by the proper authorities depends the preservation of our much loved Union.

All the other conditions could go hang if Congress and the North did not keep their promise on the measure most odious to the North. Should they fail to do so, the Unionists promised Georgia would rise up and break the Union.

Imagining Historical Southerners Complexly

Thanks to author John Green for the phrase to which this post owes its title. He also teaches US history (and has taught World History and English Lit) over on Youtube where he also finds time to vlog one half of the vlogbrothers.

Union prevailed. The fire-eaters’ conspiracy failed. The Armistice of 1850 became the final settlement thanks to the tireless work of Southern Unionists who commanded the support of most of the region’s whites when the votes came in. However ill-omened, the compromise worked. So how did the nation come to new sectional controversies that ultimately culminated in the fire-eaters getting their way in the Secession Winter of 1860-1?

To understand that, we must also understand that Southern Unionists, like people everywhere, had diverse political interests, ideological imperatives, and loyalties. When those align, they appear united and indivisible. We need know no more about Cobb, Stephens, and Toombs than that they opposed secession when things came down to the wire. They had the chance to strike for disunion and chose Union instead, but their lives do not reduce to Union Uber Alles.

Reality, with characteristic lack of consideration, gives us complexities instead of simplicity. Men like the three Georgians did not lack loyalty to slavery. Nor did they have a paramount loyalty to the Union which trumped loyalty to slavery. Rather so long as the two did not conflict, they need not choose between them. The Georgian trio could live with the Armistice, despite any fears, and so saw no conflict between it and their loyalty to slavery. Disunion or Union, to them neither state threatened slavery and so they saw no need to secede. They could have slavery as they liked within or without the Union, so why dispense with the Union in the name of slavery?

The Confederate Cabinet in 1861. Vice-President Stephens sits in the front row, third from left. Toombs sits at far right.

The Confederate Cabinet in 1861. Vice-President Stephens sits in the front row, third from left. Secretary of State Toombs sits at far right.

Despite everyone’s protestations of finality, times can change. If the same men saw no future for slavery within the Union, their two loyalties came into conflict and they must choose. Between the formation of the Confederacy and its appointment of Jefferson Davis as provisional president, Howell Cobb served as its de facto head of state. He resigned to join the Confederate military. Alexander Stephens served as Davis’s Vice-President. Toombs served the Confederacy as a Secretary of State and a general.

We can make too much of the political class, equating them perfectly with the people they represent. But they people they represented did choose them for their roles and their actions do illustrate the broad dynamics at work in historical situations. Though secession proved a broad, popular movement in 1860-1, it never commanded the hearts of every single Southerner. Nor did it occupy them all to the same degree or in the same ways. They had loyalty to their section and to slavery as a means of racial control, but even when undertaking disunion they did not cease to hold more broadly American affections as well.

These men, and the men they represented, still had American bonds of affection. Mystic chords of memory still stretched from every battlefield and patriot’s grave. But they also, just as their Northern counterparts did, had other bonds of affection and other mystic chords of memory that attached to their sections, to their states, and to their social and economic systems.

Looking South, one could imagine when Seabrook’s secession conspiracy fell before the Georgian trio and the voters, collapsing into delay, in action, and electoral defeat, that across the South most white people cleaved the Union first, section and slavery second. But allowing them human complexity reveals they cleaved to Union in a certain way and subject to certain conditions. They told the North as much. That story tomorrow.