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.

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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 Slave Power Conspiracy

Yesterday I described various setbacks to the antislavery movement over the course of the 1850s. Space did not permit also including much of how they understood these setbacks. (I try to keep these posts to about five hundred words.) But they saw writing on the wall just the same as their Southern adversaries did.

Accepting the nomination to run for Stephen Douglas’ senate seat in 1858, Abraham Lincoln summed it up:

Welcome, or unwelcome, such decision [that the Constitution forbade the states outlawing slavery] is probably coming, and will soon be upon us, unless the power of the present political dynasty shall be met and overthrown. We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free, and we shall awake to the reality instead that the Supreme Court has made Illinois a slave State.

The next Dred Scott case had already come up through the New York courts, appealed by Virginian slaveholders who had their slaves freed under that state’s law. Given Taney’s firm commitment, on display in Dred Scott, to resolving the issue of slavery once and for all who could doubt the outcome of Lemmon vs. New York when it arrived on his docket in 1860?

These events all looked very much like a deliberate design, which the antislavery movement came to call the Slave Power Conspiracy. Though he did not use the name, Lincoln described it in the same speech:

But when we see a lot of framed timbers, different portions of which we know have been gotten out at different times and places and by different workmen,—Stephen [Douglas], Franklin [Pierce], Roger [Taney], and James [Buchanan], for instance,—and we see these timbers joined together, and see they exactly make the frame of a house or a mill, all the tenons and mortises exactly fitting, and all the lengths and proportions of the different pieces exactly adapted to their respective places, and not a piece too many or too few, not omitting even scaffolding—or, if a single piece be lacking, we see the place in the frame exactly fitted and prepared yet to bring such piece in—in such a case we find it impossible not to believe that Stephen and Franklin and Roger and James all understood one another from the beginning, and all worked upon a common plan or draft drawn up before the first blow was struck.

And of course, he told us where this must lead:

“A house divided against itself cannot stand.” I believe this government cannot endure permanently half slave and half free. I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward till it shall become alike lawful in all the States, old as well as new, North as well as South.

Traditionally historians have dismissed Lincoln’s fears as campaign rhetoric, but over the past few decades the trend, as with many trends in Civil War historiography, has greatly reversed. While I don’t think many would endorse the view that a conscious, deliberate conspiracy to turn free states slave existed, the outcome naturally follows from slaves being property and the Constitution’s guarantee of property rights. John C. Calhoun’s vision of an America where he could take his wagon, his horse, and his slave anywhere in the nation and be completely secure in his ownership of them all does look like where the Congress and Court aimed. In that America, a free state is a legal impossibility.