The First Congress and the First Slavery Debate

Josiah Parker

Josiah Parker

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

The Constitution provides that

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

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

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

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

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

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

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

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

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

James Jackson

James Jackson

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

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

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

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

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

The Nullification Crisis and Slavery

Andrew Jackson

Andrew Jackson

Once upon a time, South Carolina defied the national government. It declared her rights as a state and struck down a federal law, daring Andrew Jackson to come down and make something of it. The state even tried to raise an army to meet the one Jackson intended to send. Most of the Confederacy’s latter-day boosters don’t know about the affair. Now and then, however, one does find someone aware of history before April of 1861. They will trot out the story of the Nullification Crisis as proof positive that the South (even though only the dominant faction in South Carolina went all-in with nullification) had grievances with the North unrelated to slavery, usually with immediate reference to the tariff.

I don’t propose here to dissect the tariff issue in detail. Others, notably Craig Swain and Andy Hall, have done a good job of that and I don’t yet feel competent to add to it. But I have made my way through William W. Freehling’s Prelude to the Civil War: The Nullification Controversy in South Carolina 1816-1836. I have not yet read the other modern treatment of the event, Richard Ellis’ The Union At Risk: Jacksonian Democracy, States’ Rights, and the Nullification Crisis. I have, however, learned that Ellis agrees with Freehling on the central point that even back in the 1830s, South Carolina launched a fleeting rebellion to save slavery. Both treatments thus depart from prior historians who insisted that in Nullification times, South Carolina had a cause pure and divorced from slavery. My own high school history class followed the older school, to the point where in younger and more ignorant times I once used the argument from Nullification myself.

The intricacies of constitutional theory invented in the late 1820s to justify nullification, a revolutionary step in itself, could probably make for a dozen or more posts. Freehling devotes his longest and most difficult chapter to them. It makes for demanding reading even if one has a strong interest in the subject. The chief primary source, John C. Calhoun’s then-anonymous South Carolina Exposition and Protest (PDF), doesn’t help matters much as the South Carolina legislature did some heavy revising of Calhoun’s text to incorporate multiple different theories of nullification. One ends up with a document somewhat at odds with itself. I may dig into all of that in the future, but today I have a more practical approach in mind.

The argument goes that South Carolina, which the arguer often conflates with the entire South, opposed a high tariff. Sure enough, the United States passed a very high tariff in 1828. Southerners did protest. South Carolina’s congressmen voted through those rates, so one might at once dismiss them as hypocritical. But on the contrary, South Carolina’s representatives voted as they did intending to destroy the bill. They ensured that it would include duties injurious to manufacturers, with Freehling listing high rates on raw wool and molasses in particular as aimed at northern industry. This would, they hoped, separate those manufacturers from the others and turn enough votes to defeat the whole bill. South Carolina bet wrong, finding that enough northerners voted for lower rates on the targeted goods to render the bill acceptable, if imperfect, to the manufacturers that they hoped to turn.

George McDuffie (D-SC)

George McDuffie (D-SC)

The argument continues, tactical blunders aside, that Southerners understood the tariff as picking their pockets to subsidize the development of the North. It didn’t clearly do so, as Crag and Andy show, but they certainly believed that. The popular argument of the time, articulated by George McDuffie on the floor of the House, held that the tariff demanded Southerners give away the proceeds of forty bales of cotton to the taxman out of every hundred they grew.

Here we hit on the central difficulty of taking anti-tariff politics independent from slavery: the enslavers didn’t grow that cotton. Their slaves did. South Carolina’s upcountry, more so than other states, felt the pinch of the depression after the War of 1812. A combination of poor access to credit, even by early nineteenth century American standards, and overextension that came back to haunt the upcountry cotton magnates. They had a great deal of debt taken on in an era of high cotton prices which they had to repay in a time of lower prices. But their objection boils down to the fact that the tariff would cut into the profits they stole from their enslaved labor force. How could anyone understand this as a cause independent from slavery, short of simply not reading or not thinking about it at any length, I don’t know. Rather we have here a clear, specific grievance that arises from and depends upon slavery. Maybe a farmer in Illinois or Maine could have a tariff complaint untainted by human bondage, but not the cotton planters in the South’s most enslaved state. A commercial grievance did not necessarily make for a slavery grievance, but in South Carolina one had precious little commerce that didn’t either arise from or directly serve slavery.

One could argue, if rather selectively, that South Carolinians did not understand the tariff issue as deeply connected to slavery, or at least to proslavery politics. They had a straightforward financial crunch they wanted out of and saw the tariff making it worse, even if their business involved stealing lives and labor. Here too we soon find ourselves confounded by facts. In this case, however, we need to understand a bit more about the South Carolina economy in the early nineteenth century.

Most everyone probably remembers that one could only profitably grow cotton, even with slave labor you could torture into higher yields, along the coast and on the Sea Islands. There enslavers grew long-staple cotton. There, in the swampy lowcountry, South Carolina got its start. In addition to cotton, Carolina enslavers collected the fruit of slave labor on massive rice plantations. Rice required swampy land to grow, something in short supply in most of the upcountry. then Eli Whitney changed the world with his cotton gin, making short-staple cotton a profitable crop in the upcountry and across the Lower South. This turned the inland South from a land of timber stands and wilderness into the richest section of the country. The expansion of short-staple cotton naturally began in South Carolina.

The two cotton fibers, however easily confused, supplied different markets. Long-staple cotton went into luxury goods like lace. Short-staple cotton went into most everything else. Advances in processing made it look briefly like upcountry cotton might force sea island strains out of the market, but improvements in production had mitigated against that and made the years immediately before Nullification relatively comfortable and prosperous for lowcountry enslavers whether they grew rice or luxury cotton. One would not expect them to lead an antitariff crusade in such an environment. In that role, we would expect the upcountry men feeling the squeeze. Yet within South Carolina most of the leading nullifiers hailed from the lowcountry. Clearly they had more than the bottom line on their minds.

The lowcountry’s great fear came in the horrifying specter of debating slavery. The nation’s tiny antislavery movement had sent its first petitions to Congress and the lowcountry enslavers, vastly outnumbered by their human property, believed that discussion of slavery had reached the slaves who took part in Denmark Vesey’s conspiracy. If they did nothing to stop discussion, then their slaves might rise up and murder them in their beds. They had already taken steps in that direction through various vigilance measures in and around Charleston, but a series of fires and rumors of other conspiracies kept them in a state of keen paranoia. Thus they felt they must silence slavery debate forever, for their own wealth and safety and decided they could best manage that by declaring Congress had no power over their domestic institution. Through social connections and shared investment in slave property, they spread their ideas into the upcountry.

Why not just say they set out to defend slavery? In the early 1830s, endorsement of slavery qua slavery lacked the cachet it would later have. A gentleman should hope that at some indeterminate date in the future, slavery would magically end. Until then, he just had to make do with the terrible burden of a fortune beaten, raped, and stolen from the bodies of black Americans. In this way, enslaving constituted a necessary evil. Arguments for the positive good of slavery, though in development, had yet to sweep even South Carolina.

Allow me to close with some words from the nullifiers themselves on the nature of their crusade. Freehling quotes the May 12, 1830, Winyaw Intelligencer:

It is not, it ought to be understood, that the Tariff is only one of the subjects of complaint at the South. the Internal Improvement, or general bribery system, and the interference with our domestic policy-most especially the latter-are things which … will, if necessary, be met with something more than words.

Looking at the justification for internal improvements in the Constitution’s General Welfare Clause, Robert Turnbull argued

these words “general welfare” are becoming every day more and more important to the folks, who are now so peaceably raising their cotton and rice, between the Little Pedee and the Savannah. The question, it must be recollected, is not simply, whether we are to have a foreign commerce. It is not whether we are to have splendid national works, in which we have no interest, executed chiefly at our cost. … It is not whether we are to be taxed without end. … But the still more interesting question is, whether the institutions of our forefathers … are to be preserved … free from the rude hands of innovators and enthusiasts, and from the molestation or interference of any legislative power on earth but our own? Or whether, like the weak, the dependent, and the unfortunate colonists of the West-Indies, we are to drag on a miserable state of political existence, constantly vibrating between our hopes and our fears, as to what a Congress may do towards us, without any accurate knowledge of our probable fate, and without a hope of successful resistance.

Thompson Player, an upcountry man, agreed that the tariff

is only preparatory to ulterior movements, destined by fanatics and abolitionists to subvert the institutions and established policy of the Southern country, to gratify their capricious and pretended charities.

Robert Barnwell held that

there are some changes in the very forms of our domestic policy, to which they could scarcely persuade us quietly to submit. And there are no changes, however vital and subversive of our most absolute rights, which fanaticism and misguided philanthropy would not attempt.

William Preston said it more bluntly still:

the slave question will be the real issue-All others will be absorbed into it. The hypocrisy of the north & the fears of the South will combine to bring us to the same result, and will Louisiana cling to her sugar and give up her negroes?

All quotes from Freehling.

John C. Calhoun

John C. Calhoun

I could go on. I may still in the future. But I can think of no better spokesman for the nullifiers than their leading ideologist, a fixture of Carolina politics and figure on the national stage for decades, none other than John C. Calhoun. In September of 1830, Calhoun wrote to Virgil Maxcy:

I consider the tariff act as the occasion, rather than the real cause of the present unhappy state of things. The truth can no longer be disguised, that the pecular domestick institution of the Southern States and the consequent direction which that and her soil and climate have given to her industry, has placed them in regard to taxation and appropriations in the opposite relation to the majority of the Union, against the danger of which, if there be no protective power in the reserved rights of the states they must in the end be forced to rebel, or, submit it to have their paramount interests sacrificed, their domestick institutions subordinated by Colonization and other schemes, and themselves and children reduced to wretchedness. Thus situated, the denial of the right of the State to interpose constitutionally in the last resort, more alarms the thinking, than all the other causes; and however strange it may appear, the more universally the state is condemned, and her right denied, the more resolute she is to assert her constitutional powers lest the neglect to assert should be considered a practical abandonment of them, under such circumstances.

What did the founders think of secession?

James Madison

James Madison

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

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

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

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

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

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

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

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

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

James Wilson

James Wilson

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

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

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

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

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

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

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

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

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

Alexander Hamilton

Alexander Hamilton

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

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

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

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

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

Roger Taney, Chief Justice of the Supreme Court

Roger Taney

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

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

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


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

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

John C. Calhoun

John C. Calhoun

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

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

Strict and indissoluble, not loose and easily broken.

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

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

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

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

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

The Proslavery Politics of Robert E. Lee

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

Robert E. Lee

If you ask many Americans about the Confederacy, they will begin by expressing their admiration for Robert Edward Lee, the valiant, dignified, and grandfatherly commander of the Army of Northern Virginia. Even if they have a fair idea of what the Confederacy sought to accomplish, they still love Lee. He embodied the concept of a southern gentleman so thoroughly that one suspects his ghost would only eschew Antarctica because he could not part with his beloved Virginia. Any he chose to haunt would compliment him on the act, happily agreeing that they had it coming and benefited immeasurably from the experience. Lee, as remembered in Civil War popular culture, toiled his whole life in relative obscurity. The son of a founder, he married the step-granddaughter of no less a founder than George Washington. If he did not die for our sins, as we might imagine Lincoln did, then Lee had his own long, dark night of the soul. At Gethsemane on the Potomac, he weighed his love of the Union with his love of Virginia. In the end, Lee went South. He could, like a rebel of older days dear to many Americans, do no other. His love of Virginia prevailed not just over his love of Union and scorn for disunion, but also his loathing of slavery.

Respectable historians agree. When someone asks me for a single book to read about the American Civil War, I point them to James McPherson’s Battle Cry of Freedom. McPherson introduces Lee as “perhaps the greatest asset that Virginia brought to the cause of southern independence,” an assessment with which few could argue:

General-in-Chief Winfield Scott considered Lee the best officer in the army. In April, Scott urged Lincoln to offer Lee field command of the newly levied Union army. As a fellow Virginian Scott hoped that Lee, like himself, would remain loyal to the service to which he he had devoted his life. Lee had made clear his dislike of slavery, which he described in 1856 as “a moral and political evil.”

Lee expressed the same idea when called to testify before Congress after the war, declaring himself in favor of gradual emancipation. One could almost mistake him for Lincoln.

Lee must have had a truly powerful devotion to Virginia to fight for it when the state nailed its colors to the mast of slavery, but that just makes him into a yet more tragic and noble figure. If Lincoln gave his life, albeit without his consultation in the matter, then Lee gave his love of Union and other dear principles. This Lee comes down to us as more a statue than a man, a platonic ideal cloaked in gray lest it blind us in all its glory. How could one not admire him? Anything less seems the height of perversity. To dissent simply shows proof of one’s own fallen nature.

I, Gentle Readers, have fallen and do not want to get up. Some of this comes down to personal taste and individual values. I don’t find myself much moved by the mode of gentlemanly conduct that Lee upheld. Nor does this pacifist feel a profound admiration for Lee’s more military virtues. But in approaching Lee’s position on slavery as a matter of history, those concerns do not hold the same relevance. We can never step outside ourselves and achieve perfect objectivity, but understanding the past does require us to do more than rehearse our biases. In that pursuit, I fell the same way that historian Gary Gallagher did, through the dark art of reading.

David Wilmot

David Wilmot

McPherson derives his Lee quote from the man’s most celebrated biographer, Douglas Southall Freeman. Alan T. Nolan didn’t leave matters there, but went for the quote’s full context in his book Lee Considered: General Robert E. Lee & Civil War History. Lee wrote the line to his wife while serving in Texas, just a month after James Buchanan defeated the first avowed antislavery candidate for the presidency who had a realistic chance of winning, John C. Frémont. The passage, as quoted in Nolan, deserves a close examination:

In this enlightened age, there are few I believe, but what will acknowledge, that slavery as an institution, is a moral & political evil in any Country. It is useless to expatiate on its disadvantages. I think it however a greater evil to the white than to the black race, & while my feelings are strongly enlisted in behalf of the latter, my sympathies are more strong for the former. The blacks are immeasurably better off here than in Africa, morally, socially, & physically. the painful discipline they are undergoing, is necessary for their instruction as a race, & I hope will prepare & lead them to better things.

Often when people claim that one quotes out of context, the context doesn’t really change things. Here it really does. Lee has written that however much slavery harmed black people, it also did them good. They benefited more from the whipping, raping, torture, and dismemberment of families than they would have from freedom in Africa. But doesn’t that make Lee just like David Wilmot with his breezy “no squeamish sensitiveness upon the subject of slavery, no morbid sympathy for the slave”?

Had Lee stopped there, one could make that case. Wilmot and men like him literally did not want to share the continent with black Americans and Lee’s position so far would put him into the antislavery mainstream of Kansas, where many preferred no black Americans, but if they must have such neighbors then those neighbors must come enslaved. But Lee did not stop there.

How long their subjugation may be necessary is known & ordered by a wise Merciful Providence. There emancipation will sooner result from the mild & melting influence of Christianity than the storms & tempests of fiery Controversy. … While we see the Course of the final abolition of human Slavery is onward, & we give it all the aid of our prayers & all justifiable means in our power, we must leave the progress as well as the result in his hands who sees the end; who Chooses to work by slow influence; & with whom two thousand years are but as a Single day.

Franklin Pierce

Franklin Pierce

Slavery must end, someday, but Lee ceded the decision on that to the Almighty alone. I don’t propose to argue that doing so made Lee insincere. Genuinely religious people do believe that their god or gods work in the world and order things in their own ways. Presumably if Lee’s god descended from Heaven and told him to free all the slaves, Lee would have done it. But all the same, one doesn’t hold one’s breath waiting for such things. Until that time, Lee here commits himself to an unqualified and indefinite preservation of slavery. Controversy clearly did not signal divine will to him, or he would have associated it with the influence of Christianity rather than contrasted the two.

Nolan goes further with Lee. The future general knew very well that another group of Americans, who also claimed the influence of Christianity for their politics, came down rather differently on slavery. Discussing a recent condemnation of antislavery politics by Franklin Pierce, Lee writes

the Systematic & progressive efforts of certain people of the North, to interfere with & change the domestic institutions of the South, are truthfully & faithfully expressed. The Consequences of their plans & purposes are also clearly set forth, & they must also be aware, that their object is both unlawful & entirely foreign to them & their duty; for which they are irresponsible & unaccountable; & Can only be accomplished by them through the agency of a Civil & Servile war.

Lee’s emphasis. Here he neatly cuts any but white Southerners out of the decision on slavery, so eliminating the section of the nation where antislavery beliefs might find airing without extreme danger to their exponents. Obviously, Lee’s god would not work through a Yankee.

Although the Abolitionist must know this, & must See that he has neither the right or power of operating except by moral means & suasion, & if he means well to the slave, he must not Create angry feelings in the Master; that although he may not approve the mode by which it pleases Providence to accomplish its purposes, the result will nevertheless be the same; that the reasons he gives for interference in what he had no Concern, holds good for every kind of interference without neighbors when we disapprove their Conduct. … Is it not strange that the descendants of those pilgrim fathers who Crossed the Atlantic to preserve their own freedom of opinion, have always proved themselves intolerant of the Spiritual liberty of others?

The abolitionist could ask nicely and the enslaver would say no nicely. Only when they could politely convince southerners who built their fortunes on stolen lives, their own hands on the lash, could the abolitionist expect slavery to end. Never should the abolitionist anger the enslaver. Such angry feelings might, after all, provoke retaliation. Furthermore, the abolitionists should respect the religious liberty of Southern enslavers. They decided what the Bible said about their slavery and would change their minds when their god ordained, not one second earlier.

Here we have not an antislavery Lee, troubled by the system but a captive to it by his upbringing. Nor do we have a Lee bound to Virginia and thus to slavery as a consequence. Instead we have a Lee who prefers and advocates for the indefinite preservation of slavery. Gradual emancipation, in Lee’s own lifetime, meant not the preservation of slavery until all the scales fell from white eyes in a new revelation but rather a progressive advance ordained by law which would in a known period of time convert enslaved people into freedpeople. It might take decades, but it would likely happen within the lifetimes of people alive when the laws passed rather than in some vague and hoped-for millennium to come. Unless Lee had no interest at all in political matters, and his writing suggests otherwise, it beggars belief that he would have missed the distinction between the gradual emancipation actually practiced in eighteenth and nineteenth century America and the “gradual” emancipation he insisted after the war that he had always preferred.

The Lee who swore to tell the truth and then testified to Congress said “I have always been in favor of emancipation – gradual emancipation.” At the very least, Lee deliberately misled Congress. More likely the paragon of gentlemanly virtue consciously simply lied.

None of what I have shared today comes from newly uncovered sources. How does this myth live on? Not every scholar of the Civil War will take an interest in Lee’s personal life and politics, and McPherson’s book predates Nolan’s, but I’ve heard people make much the same claims about Lee and slavery as recently as a few weeks ago. Do people not read the sources? Some don’t, and ignorance will get one a long way, but I think a larger issue than that comes into play.

Confederate Battle FlagEven if one can’t deny or obscure the Confederacy’s avowed purpose, though people do try with remarkable industry, then in Lee they can have a proxy for the Confederacy. Whatever the official documents say, in Lee they have a man they claim did not care for slavery but fought for it all the same, at great hazards and against in some ways his own best judgment. By making Lee antislavery, they can excuse the Confederacy. He signed on, so it must have a good side.

Since Lee would never fight for it, except reluctantly and entirely due to Virginia’s choice, slavery vanishes from consideration. Its absence invites other explanations for the war. If the Confederacy fought not for slavery, despite the nigh-endless stream of documents arguing just that produced by the Confederacy’s leaders, then it did for states’ rights. It fought against an oppressive government. It fought to defend its way of life. Don’t ask just what rights, what form the oppression took, or what the way of life entailed. The politicians of the seceding South used fear of abolition to gin up a war over some arcane constitutional point, or a few cents on the tariff, but nothing more. Trust them. At any rate, their however many times great-grandfathers wouldn’t have fought for slavery. We all have only righteous ancestors who strangely chose just the right causes for us to admire, just as we all have above-average children. We would not choose ancestors who disregarded future standards and shamefully misbehaved, after all.

That this rehabilitation of the southern cause happens to involve the simultaneous rehabilitation of the people, doctrines, and symbols used by avowedly white supremacist groups to suppress the advancement and destroy the gains of black Americans toward equality more than once seems, to this random person on the internet, rather more coincidental than one would expect of a genuine coincidence. The ghost of Lee lives on, imagined perfection and real politics alike.

America in 1830

The fourth census comes before the second great sectional crisis, that one that never quite happened as such. In 1828, Congress passed the highest tariffs the nation had ever known. The United States would not again levy a tariff so high until the 1930s. The Southern radicals read the tariff as an attack on slavery, ignoring how the same tariffs that shielded Northern manufactures also shielded Southern cotton and sugar. They also ignored, or didn’t care, that most of the tariff duties paid in the United States came in not through Charleston or New Orleans, but New York City.

I want to write more about that at some point, but it bears more reading before I try to take it on in any detail. I say the great sectional crisis didn’t quite happen because South Carolina charged out in front of the South, declared its power to ignore federal laws it didn’t care for, and expected the South to flock to its banner. Even as Andrew Jackson prepared to enforce the tariff by force, at the least with Navy ships anchored off Charleston and possibly calling out the army to suppress South Carolina’s incipient revolution, the rest of the region left them hanging. The Carolina radicals took from these event the lesson that they could not expect the South to throw its full weight automatically behind any wildcat disunion.

But that confrontation hides years into the future at the time of the fourth census. That census found the nation of  15.62% (2,007,465) slave, up slightly from the 15.15% of 1820. Of those slaves, a mere 0.18% (3,599) lived in the North. By national standards, anything above 32.19% enslaved meant significant variance from the norm.

The North in the fourth census. (Click for a larger version.)

The North in the fourth census. (Click for a larger version.)

As usual, no Northern state or territory comes within a several miles of unusually heavily enslaved. In fact, no Northern locale has as much as 1% of its population in bondage. Only one place comes even close to having half its black population enslaved, the Wisconsin Territory. Of Wisconsin’s 64 black residents, 31 had owners. After some censuses with no slaves in many places, only Vermont has that distinction in 1830. However, the small numbers in states previously entirely free and without legal sanction for slavery suggests the census caught the property of outsiders passing through.

Taking the North on its own, anything above 0.27% enslaved warrants extra notice. Illinois (0.47%, 747 slaves), New Jersey (0.70%, 2,254 slaves), and Wisconsin (0.85%, 33 slaves) come in too enslaved to belong in the section. Of those misfits, Wisconsin amounts to a negligible 0.86% of the Northern slave population. New Jersey accounts for the lion’s share, 62.63%, followed by Illinois at 20.76% and then Pennsylvania at 11.20%. No other place has more than New York’s 75 slaves (2.08%).

New York’s performance stands out especially in light of how it once exceeded New Jersey in percent enslaved and still had 10,008 slaves in 1820. The states adopted gradual emancipation plans only five years apart so their divergence really draws the eye. Demographically, they had a lot in common when it came to slavery. New Jersey’s emancipation law came late and, I’ve read, treated the property rights of slaveholders very gently. I can only guess without some more reading -Always more to read, Gentle Readers- but I incline toward ascribing the difference in the laws to the difference in slavery’s decline.

The South in the fourth census. (Click for a larger version.)

The South in the fourth census. (Click for a larger version.)

The remaining 99.82% of the nation’s slaves, 2,003,866 in all, lived South of the Mason-Dixon Line and the Ohio River, or in Missouri. By national standards (32.19%), Alabama (37.98%), Florida (44.63%), Georgia (42.09%), Louisiana (50.85%), Mississippi (48.06%), North Carolina (33.28%), South Carolina (54.27%), and Virginia (38.78%) come in as exceptionally enslaved. To someone from the North, the South must have looked fantastically enslaved. Of course, by Southern standards, the North looked fantastically white.

Of course to Southern eyes and Southern demography, a normal rate of enslavement goes up to 47.57%, up from 45.59% in 1820. By that metric, only Louisiana, Mississippi, and South Carolina stand out. As usual, South Carolina leads the pack. By 1860, Mississippi would join it in the majority slave club but by then Louisiana would leave the same club.

By Southern standards, anything less than 21.08% (down from 21.97%) represents an unusual degree of freedom. In 1830, Arkansas (15.06%), Delaware (4.29%, as usual far and away the region’s leader), the District of Columbia (14.89%), Missouri (17.87%), and Tennessee (20.77%) underachieve in slavery.

The degree to which the overachievers and underachievers in slavery, within the South, consist of largely the same places and the degree to which those places map to the usual 1860 subdivisions of the South stands out to me. I have known that the center of slavery moved South with cotton for years, but seeing the trend census to census really brings it home. If I had more locales, I would think about doing average deviations for just each subregion and comparing them as I compare North and South, but five data points vs. four vs. seven doesn’t seem likely to tell a lot that doesn’t leap right out from the raw numbers. Possibly some day if I do county-level statistics I could use those, but those only exist from 1820 onward and counties tended to change borders more often than states, so longitudinal comparison doesn’t look entirely proper.

Blatant Tariff Lying with a Picture

I forgot to link to it yesterday, but using data a colleague collected Andy Hall made a helpful visualization of the tariff data he put into a previous post. If, like me, you have a little trouble imagining numbers in proportion to each other it’s a great way to see just how incredibly New York (and to a vastly lesser extent, other Northern ports) dominated revenue generation.

It also transpires that Craig Swain had the same numbers a few years ago, and a broader a treatment of the issue.

Update: The previous version of this post mistakenly credited the visualization to Andy’s colleague. Sorry about that.

Blatant Tariff Lying

Over at Dead Confederates, Andy Hall exposes some fairly blatant lying in service to the claim that the Civil War erupted over tariffs. Supposedly the South paid 75% of the nation’s tariff revenue and Lincoln would not let that cash go as it formed the lion’s share of federal revenues. Fair enough, tariffs did in fact make the federal government most of its money. However:

In summary, during that year the Port of New York took in $233.7M, of which $203.4M were subject to tariffs ranging from 4 to 30%. During that same period, all other U.S. ports combined received $128.5M in imports, of which $76.5M was subject to tariff. So the Port of New York, by itself, handled almost two-thirds (64.5%) of the value of all U.S. imports, and almost three-quarters (72.7%) of the value of all tariffed imports


Williams’ assertion that “Southern ports paid 75 percent of tariffs in 1859″ isn’t a case of “lying with statistics,” because the statistics don’t actually say anything remotely like that. It’s a case of lying, period.

Andy has much more. The raw wrongness staggers me a bit. How do these people sleep nights? Are the piles of money they extract from those who don’t think to check that good a pillow?