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A Constitutional History of the United States
Chapter XXXVIII - The Compromise of 1850
by McLaughlin, Andrew C.


The Whigs elected Taylor in 1848, and the defeat of Cass was chargeable partly to the defection of the Free Soil Democrats in New York.[1] The slavery question remained to be dealt with. Taylor was inexperienced in political affairs, but he was by temperament inclined to be judicious, and, though a slaveholder, he was not likely to take an extreme position on slavery. In his inaugural address (March 5, 1849) he scarcely touched upon the great problem, but he did express an intention not to support "any particular section or merely local interest...."

His annual message (December 4, 1849) called the attention of Congress to California, where the people had formed a state constitution and were about to ask admission into the union. He spoke with a degree of uncertainty because word of the final framing and adoption of the state constitution had not as yet reached Washington: "latest advices" gave him reason to suppose the work was finished and he expected the state would apply for admission. He knew well enough, however, what was going on in the western west; the eager gold-hunters wished to govern themselves and were equal to the task. In fact, he announced to Congress that he had sent agents to California and New Mexico, and he "did not hesitate to express to the people of those Territories" his wish "that each Territory should, if prepared to comply with the requisitions of the Constitution of the United States, form a plan of a State constitution and submit the same to Congress...." Denying any intention of interfering with the domestic institutions of the western people, he nevertheless had advised the formation of a constitution, for he was actuated by a "desire to afford to the wisdom and patriotism of Congress the opportunity of avoiding occasions of bitter and angry dissensions among the people of the United States." He believed both territories, if they should present themselves for admission, should be allowed to enter the union.[2]

The Californians formed a constitution which did not recognize slavery. The rest of the territory acquired from Mexico was without territorial government. Would Congress admit California and thus disturb the existing balance between free and slave states; and would it look with any favor on the exclusion of slavery from the territories not yet organized? Those were the critical questions during the fateful months of 1850. There were certain additional problems. What should be done with the western part of Texas which might properly be considered as lying within the general region of New Mexico, if not legally a part of it? The existence of slavery in the District of Columbia still stirred the antislavery forces. The slaveholders, on the other hand, complained because their slaves were escaping from bondage and finding protection at the north.

As we enter upon a brief study of the debates, the constitutional arguments, and the expansive oratory of the session of 1850, the tragedy of the coming civil war seems to cast its shadow upon us. We realize, too, that in some respects we have passed into a new era; Calhoun, Clay, and Webster, who had begun their active political careers some forty years before, were still living and they participated in the debates; but they were reaching the end. They had entered the field when American nationality was endangered by internal dissension and when national dignity was attacked by contemptuous treatment from foreign nations. Each in his own way, southerner and northerner alike, had striven to maintain the union. Calhoun had always asserted his devotion to the union, the union as he conceived it to be; and now at the end, the hand of death upon him, there still burned within him a spark of affection for the nation which he would refuse to consider a nation at all. Clay, a border statesman, who more than any other statesman during those forty years had appealed to the sympathy and loyal affection of all sections, had done valiant service by his real spirit of generous nationalism. "Compromise" is the word usually used in speaking of Clay's statesmanship, but the word need carry no opprobrious meaning; we need to bear in mind the continuing presence of sectional interests and of rivalries which might have become hostilities. Sectionalism, moreover, had not been confined to the controversies between north and south, and adjustment was a continuing necessity. Webster's oratory had enthralled men, and he, too, had cherished the union and aroused in his hearers, if they had ears willing to hear, ardent devotion to their country. Now these men, leaders for a generation, were leaving the field of action. But the old question remained: could the nation survive?

The reader of the debates finds himself in a new, though not utterly strange, atmosphere. The younger men — not mere striplings, but already experienced combatants — were prepared to speak with a certain directness; they spoke bluntly; their thinking appears, in a way, more realistic; but the difference between them and the men of the generation then passing from the field is not easily described. The northerners among them recognized the actuality of sectional variations. William H. Seward, Salmon P. Chase, and Stephen A. Douglas cannot be charged with a want of national spirit; but they had not been brought up in a school in which the one motivating principle was the necessity of maintaining the union. Alexander H. Stephens of Georgia was, or had been, a strong unionist; but he was not willing to sacrifice all for the cause. Jefferson Davis, upon whom the mantle of Calhoun fell when the old warrior was summoned by death, contended vigorously for the peculiar interests of the south, but to us he seems to be lacking in the intensity of moral enthusiasm which characterized the great Carolinian, and to be in some ways more sectional in his sympathy than the exponent of the philosophy of sectionalism himself.

Clay, entering upon the last great effort of his life, introduced in January a series of resolutions [3] which became the subject of prolonged controversy. The first resolution provided for the admission of California without any restriction in regard to slavery. The second declared that as slavery did not exist by law and was not likely to be introduced into any of the territory acquired from Mexico, it was inexpedient for Congress to provide either for or against its inclusion, and that suitable territorial governments ought to be established in the region without any restriction or condition on the subject of slavery. The third laid down boundaries for Texas "excluding any portion of New Mexico...." The fourth proposed that the United States should provide for the payment of that portion of the public debt of Texas contracted prior to her annexation — a payment not above a sum to be specified — on condition that Texas relinquish claim to any part of New Mexico. The fifth announced the inexpediency of the abolition of slavery in the District of Columbia except under certain conditions. The sixth declared the expediency of prohibiting the trade in slaves brought into the District either to be sold therein as merchandise or to be transported to other markets. The seventh declared that a more effectual fugitive slave law ought to be enacted. The eighth denied the powers of Congress to prohibit or obstruct the trade in slaves between slaveholding states, and asserted the admission or exclusion of slaves brought from one state into another was wholly a subject for state legislation.[4]

These subjects consumed the attention of Congress for months. Speech followed speech. There was much plain speaking and no little bitterness. Threats of secession were not uncommon,[5] and there were fervid declarations of devotion to the union. Some of the southerners were willing to accept the Missouri Compromise line through to the Pacific: "We maintain", said Jefferson Davis, "that it is the right of the people of the South to carry this species of property to any portion of the Territories of the United States; that it rests under the Constitution, upon the same basis as other property; but, when speaking of a compromise, it was the ultimatum I announced.... It is a partial recognition of a right we claim to be co-extensive with the Territories of the United States; but which we are willing, in a spirit of compromise, and in compliance with the past acquiescence of the States, to restrict by the parallel of 36 30' north." [6]

As we might expect, able and incisive speeches, direct and forceful, not clouding the issue, came from the men who had not been leaders and orators for a generation. Stephen A. Douglas took active part. Salmon P. Chase of Ohio spoke on one occasion for the greater part of two days, especially disclosing by copious references to historical documents the opposition to slavery in the days of the Revolution. An effective speech was made by George W. Julian, a Representative from an Indiana district peopled largely by Quakers. Anyone desiring a plain, unvarnished presentation of the attitude of common men of the north toward slavery, anyone desiring to read a straightforward statement in reply to the charge that the northern fanatics had vexed the south by their aggression, may well read this sincere speech of a man who felt deeply but did not indulge in unnecessary and acrimonious assaults upon the south.

Three speeches have become famous in American history — those made by Calhoun, Webster, and Seward. Calhoun emphasized the balance of the sections. To an extent quite unsupported by historical fact, he saw the union in reality as a union of sections; he found the equilibrium existing at the time the Constitution was formed, and conveyed the impression, though perhaps unintentionally, that such balancing was the plain purpose of the framers of the Law of the Land. When the government was established "there was nearly a perfect equilibrium between the two, which afforded ample means to each to protect itself against the aggression of the other; but, as it now stands, one section has the exclusive power of controlling the Government, which leaves the other without any adequate means of protecting itself against its encroachment and oppression." [7] It is unnecessary for us to say again that the framers of the Constitution did not intend to establish a union of sections rather than a union of states; but the fact which in Calhoun's mind was fraught with peril was the preponderance of northern power and northern votes.

Webster's seventh of March speech was the most sharply criticized and was probably the most important. On the whole, he defended the proposed Compromise. "Now, as to California and New Mexico," he said, "I hold slavery to be excluded from those territories by a law even superior to that which admits and sanctions it in Texas. I mean the law of nature, of physical geography, the law of the formation of the earth." He believed the south had been wronged by the northern people and legislators by their "disinclination to perform fully their constitutional duties" in regard to the return of fugitive slaves. He did not enter upon a consideration of technical problems of constitutional law; he seemed to think the time for that had gone by. The speech was an appeal to the spirit of union and nationalism. It was intended to be soothing, and it was inspiring, but it brought down upon him the maledictions of thousands at the north who had expected, or hoped for, support of the antislavery cause. He sketched the change in the attitude of the south toward slavery from the days of the Revolution. He spoke of the antislavery forces in terms which were at times contemptuous. He found fault with men who thought clearly of their own duty but in the embracement of one truth were led to a disregard of other truths equally important: "As I heard it stated strongly, not many days ago, these persons are disposed to mount upon some particular duty, as upon a war-horse, and to drive furiously on and upon and over all other duties that may stand in the way.... They are apt, too, to think that nothing is good but what is perfect, and that there are no compromises or modifications to be made in consideration of difference of opinion or in deference to other men's judgment.... They prefer the chance of running into utter darkness to living in heavenly light, if that heavenly light be not absolutely without any imperfection." This characterization, while harsh and unfeeling, was not altogether false as a portrayal of the extremists; but there was little defense, little at least that served as consoling defense, for the conscientious and sober-minded men who thought the time had come to stop the spread of slavery.

How Webster's speech affected many thousands at the north, we know well enough. They resented it. To what extent it caused others to hesitate and finally to adopt an attitude of compromise is not so easily determined. Recent investigators are convinced of its effect on the south, where the break-up of the union was openly discussed and by many openly advocated. Webster had made up his mind to save the union, if he could; and there seems good reason for believing that he succeeded.[8] That his words held the south from the last fatal plunge and delayed the attempt at secession for a decade, is at least a possible judgment. Neither at the north nor at the south was the advance-guard satisfied with his pronouncement; but he probably made an impression on the more easily persuaded in both sections. Anything that helped to retard the unification of the south in defense of slavery, and postponed the trial of physical strength of the respective sections, helped to preserve the union; for the northern states were rapidly developing in industrial strength, and railroads were increasing northern industrial integrity.

And still, Webster's main line of appeal and assertion, judged by the light of history, is wanting in moral fervor. Even if he were wise in his declaration that slavery could never obtain a hold in the desolate regions of the southwest, was there to be from him no statesmanlike declaration against the institution of slavery, no mild objection to its expansion?[9] He paid but slight attention to the grounds of northern complaint against the south, and must have left the impression that the main if not the only source of irritation was the excited imagination and the mad impulse of northern fanatics. Could a New England statesman find no word of sympathy for the cause of free labor?

If Webster's words were calculated to tranquilize the excited south, and if, as seems to be the fact, they encouraged a spirit of compromise and stimulated hope for a peaceful country, we are still forced to see that expectations of a united country were ill-founded. After all is said, one is justified in appraising statesmanship by the events of later years. By such appraisal, the speech of William H. Seward of New York must take high rank. Seward was a Whig, still comparatively young, though experienced in political life. From now on he awakened sympathetic response in the hearts of many young men of the north who were looking forward to a new, united, non-slaveholding country. No one, probably, would ascribe to the speech as a whole any degree of emotional appeal; portions were eloquent, and portions, from our present point of view, were just plain sense. There is difficulty in realizing that his words appeared at the time to be radical or dangerous. The world, he pointed out, was giving up slavery. Why debate for a moment the propriety of admitting California as a free state? Not one of the existing free states would think of adopting slavery; why question the right of California to be free? Furthermore, the extinction of slavery must come: "I feel assured that slavery must give way, and will give way, to the salutary instructions of economy, and to the ripening influences of humanity; that emancipation is inevitable, and is near; that it may be hastened or hindered; and that, whether it be peaceful or violent, depends upon the question, whether it be hastened or hindered — that all measures which fortify slavery, or extend it, tend to the consummation of violence — all that check its extension and abate its strength, tend to its peaceful extirpation. But I will adopt none but lawful, constitutional, and peaceful means, to secure even that end; and none such can I or will I forego." [10]

One portion of Seward's speech attracted particular notice and was given an interpretation unjustified by a fair consideration of the words: "The Constitution regulates our stewardship; the Constitution devotes the domain to union, to justice, to defence, to welfare, and to liberty. But there is a higher law than the Constitution, which regulates our authority over the domain, and devotes it to the same noble purposes." [11] This was his famous pronouncement of a "higher law"; pro-slavery sympathizers held this "higher law" doctrine to be a blasphemous declaration requiring men to abjure the law and the Constitution, to push forward to their chosen end, and to be guided only by their own zealous fanaticism. The phrase remained in the public mind to trouble the less vehement opponents of slavery at the north and to furnish the defenders of slavery with proof of the unconstitutional aspirations of northern fanatics. But this interpretation of his words seems quite unfair. Men were asked to act not only on their legal authority but in accordance with right and justice.[12]

Before the presentation of Clay's resolutions, Cass made a long and able defense [13] of his doctrine: the constitutional right of the people of a territory, while it existed as a territory, to decide for themselves whether or not they would have slavery in the territory. So plain is this statement that one finds difficulty in attempting to discover how it came about that the theory of territorial or popular sovereignty was later interpreted by some persons as merely the right of a people in a territory to decide the question of slavery when forming a state constitution. The subject under discussion then, and the subject which continued to be under discussion, was the question of slavery in the territories, not in the states. Perhaps the confusion of partisan controversy, the passing of time, congenital difficulty in understanding constitutional theory, and, it may be, the purposeful desire of the canny politicians all contributed to the transmutation of the Cass doctrine.

Jefferson Davis, though at times apparently excited, on the whole spoke calmly. Not indulging in irritating attack upon the north, he presented a forceful argument in favor of slavery-extension. He did not thoroughly accept the reasoning of Calhoun, but did, more plainly than formerly, place his argument on the basis of state sovereignty; the exclusion of slavery from the western region could rightfully come only from agreement of the states, and the validity of the Missouri Compromise was derived from the acquiescence of the states.[14]

Early in May, a committee, to which the perplexing questions involved in Clay's proposals were submitted, presented a report recommending (1) the postponement of any decision concerning the admission of new states formed out of Texas; (2) the admission of California; (3) the establishment of territorial governments for Utah and New Mexico without the Wilmot proviso, embracing all the territory acquired from Mexico not contained within California; (4) the combination of the two last-named measures in the same bill; (5) the establishment of a boundary for Texas, and the exclusion of New Mexico from the jurisdiction of Texas ("with the grant to Texas of a pecuniary equivalent"); (6) a more effectual fugitive slave law; and (7) the prohibition of the slave trade in the District of Columbia. A bill which included the second, third, and fifth proposals, and dubbed the "omnibus bill", was introduced, and the debate went on. The President believed the combination objectionable;[15] but his days of opposition were drawing to a close; in the evening of July 9, 1850 he died. Millard Fillmore assumed the presidency. Seward, who had been friendly with Taylor, had influence in the White House no longer. Webster became Secretary of State; the stage was set for the acceptance of the Compromise.

The senators, undeterred by the heat of a Washington summer, continued with their work and succeeded in carrying through the various measures of the Compromise. Utah and New Mexico were given territorial governments with no pronouncement concerning their authority to deal with slavery; California was admitted as a free state; Texas was presented with ten million dollars to recompense her for surrender of her claims, and the boundaries of the state were drawn as they appear to-day; after the first of the succeeding January it should be unlawful to bring a slave into the District of Columbia "for the purpose of being sold"; a fugitive slave act, more drastic than its predecessor, was adopted.

The measures went through the House without substantial change, but September was well advanced before the great composite Compromise was completed.[16] The slavery question was "settled"; the crisis was passed. The only remaining necessity was — to use Lincoln's words of a later day — that people should cease talking about the vexing problem and care nothing about the very thing they cared most about.[17]

Let us now consider the constitutional principles involved in the settlement, though settlement it proved not to be. Concerning the right to exclude slavery from the territories, the most difficult question — the pivotal question — no decision was reached. On that point the Compromise did not contain a clear principle; that was the beauty of it. It neither accepted nor rejected the doctrine of territorial power to deal with slavery; it neither set forth nor denied the theory of the right of Congress to exclude slavery; nor did it embody the constitutional right of the southerner to take his slaves into the national domain and hold them there under the protection of the Constitution. The pretense of later years that it contained a principle of constitutional right or of justice was only "window-dressing."

Perhaps it may be contended that the principle involved in the Compromise was the doctrine of "non-intervention". But this doctrine had not then and has not now any distinct and positive meaning. If someone wearily reading the sources reaches the conclusion that the act must be read one way and not another, his conclusions will not be very valuable, because he must decide in the end that the people of 1850 did not and could not follow the constitutional arguments as a modern investigator in his study may do as he turns the numberless pages of the Congressional Globe or as he fingers the correspondence and biographies of the politicians of the mid-century.[18]

One thing more: did the framers of the Compromise expressly intend to leave the constitutional problem undecided, expecting the matter to be brought to the Supreme Court? And was there any distinct pledge or agreement to abide by a judicial decision? There is some indication of such an intention; there is no plain evidence of such a pledge. The indication of an intention arises chiefly from the provision in the acts for Utah and New Mexico that all cases involving the title to slaves, without regard to the value of the matter in controversy, might be carried to the Supreme Court, and also that a writ of error or appeal should be allowed to this supreme tribunal "upon any writ of habeas corpus involving the question of personal freedom...." That this was a clear and precise intention to turn over the sole and final responsibility to the Court is certainly not evident.[19]

We now come to the most fateful measure of the whole Compromise — the Fugitive Slave Act. The advanced and earnest antislavery men at the north were indignant. In such attention as we may give the act, perplexing constitutional problems appear. The Constitution provides that "No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."[20] As early as 1793, Congress passed an act authorizing anyone claiming a fugitive slave to carry him before either a federal or a state magistrate. In practice, the fugitive was usually brought before a state official.[21] Some of the northern states began to pass laws which sought to prevent the kidnapping of free negroes and furnished remedies in state tribunals. An important case arose in Pennsylvania where a statute (1826) provided against the seizure of free negroes and for procedure in the state courts to protect the rights of persons claimed as slaves. The case was carried to the federal Supreme Court, which, in a long and learned opinion from the pen of Justice Story, pronounced the seizure and return of fugitives solely a matter of federal, not state concern, and declared that while state officials might act, the state was not under obligation to participate in the reclamation of fugitives.[22]

To discuss the constitutional questions is probably a fruitless task. Like other problems, they are not wholly abstract, for historical facts and attitudes of mind complicate them. Even in 1793 there was recognition of the right of the owner or the agent of the owner of an alleged fugitive to seize him without any formal process; he was to be brought before a judge or magistrate and upon satisfactory proof was to be delivered to the claimant. This procedure was decidedly informal and seems more so when compared with the processes of extradition. But the provisions in the Constitution dealing with fugitive slaves and fugitives from justice (both of them in the fourth article) are not alike. In the case of extradition, the fugitive from justice is to be delivered up on demand of the executive of the state from which he fled. There is no such provision for executive demand in the case of a fugitive from labor. He is to be delivered up on claim of the party to whom the labor is due.

There is at least one astonishing provision in the act of 1850. It declared that in no trial or hearing under the act should the testimony of the alleged fugitive be admitted in evidence. It is true that in the case of extradition the fugitive is not necessarily entitled to a hearing.[23] There is a difference between this principle and the distinct declaration in the act of 1850 that a fugitive should not be allowed to speak in his own behalf. Furthermore, in the case of the alleged criminal, the governor acts upon formal papers,[24] as we have already indicated — papers emanating from the governor of the state demanding the return.

What prompted such palpably unfair procedure, certain to arouse the animosity of the antislavery people, whether heretofore lukewarm or excited? Probably it was partly due to the belief that a hearing participated in by the alleged slave would be likely, because of northern prejudice, to result in his being freed. Someone may also answer the question by saying that as the slave was property, there was no reason why he should be heard. But such answer only begs the question or asserts that affidavits in the hand of a claimant should be sufficient to decide the question of status; and this sufficiency appears in fact to be the intention of the act. But another question arises and it carries us far into the body of the constitutional problem of slavery. Suppose the man seized as an alleged fugitive were a white man. Could he not deny his bondage? Under the terms of this act, if Jefferson Davis should go to Massachusetts, put his hand on the shoulders of Daniel Webster, hale him before a commissioner and produce affidavits, Webster could not deny his obligation to serve Davis as a slave. Of course the ready answer is that the act did not mean to sanction any such procedure against a white man. What then is the interpretation of the Constitution? Is slavery the natural condition of black men? Does the Constitution presume that every black man is a slave? Is the presumption so conclusive that at least in some circumstances a black man cannot even deny his slavery? Was there a general supposition when the Constitution was formed and for decades thereafter that this was a white man's government, and a white man's country, and that the natural and normal protections of the law were not intended to guard black men? The south, at least in later days, so believed the facts to be. But on the face of the Constitution such does not appear to be the fact.[25]

If one objects to the inadequacy of the summary process of the Fugitive Slave Act, he may be answered by the assertion — again, it would seem, a begging of the question — that the processes were intended, not to injure free men, but to make certain the prompt and speedy return of fugitives. But constitutional provisions and legal practices are in many respects directed to the protection of the innocent; an act making it quite legal and possible to deny a free man (indeed, white or black) ordinary protection, and forbidding him to deny his guilt or his alleged status, cannot be looked upon as wholly free from an unconstitutional stain. If such criticism as this affects no one, and if the reader says that a black man, claimed as property, ceases to be a person for the time being and is not protected by the normal safeguards of law, he is entitled to his opinion; but all can agree on the implication of the act. And all can appreciate the wrath of those men at the north who believed a black man was a person, at least to the extent of retaining his ability to deny he was only property. It may be contended that the procedure provided by the act was not essentially different from extradition, and that a negro taken to the south would have the right — mayhap the opportunity — to have his freedom tested in a court. Such a right did not appeal to the northerners as of great practical value; and their inevitable suspicion was perhaps unjust, for negroes asserting their freedom in southern states were not without remedy on the face of the southern laws, not totally without redress as a practical matter.[26]

The antislavery men denounced the act because judicial duties were assigned to commissioners whose appointment and term of office were not in accord with the constitutional provision concerning judicial officers. The validity of this objection is at least doubtful, especially in the light of recent developments of administrative law and tribunals.[27] The same conclusion must be reached concerning the charge that the act made no provision for the writ of habeas corpus. Even if the writ had been specially provided for, the judge issuing the writ must have decided that the fugitive was legally in custody, if the law was valid.[28]

Under the terms of the act, the southern slave-owner had a right to his escaped slave. He was justified in complaining because obstacles were thrown in his way. The Personal Liberty Laws of the northern states [29] were not illegal in providing against the participation of state officers in the seizure of the fugitive and against the use of state public property. But they were illegal when they sought to obstruct or to prevent the execution of the act. Possibly even the milder laws were at variance with the spirit of interstate comity, a vague term but not without its legal connotation. The laws differed one from another, and an accurate general description is therefore made with difficulty. It is plain that the more objectionable acts were passed after 1850, and particularly after the repeal of the Missouri Compromise in 1854. The statute of Vermont (1850) declared it the duty of the state's attorneys to protect, defend, and secure the release of every person claimed as a fugitive slave. Michigan passed a similar act in 1855, and provided that any person arrested as a fugitive slave should be entitled to the benefits of the writ of habeas corpus and of trial by jury. Similar laws were passed in other states. But as a matter of fact, though these measures were provocative, they were ineffectual. I see no reason for denying the truth of the remark made by Charles Francis Adams in January, 1861, referring to "The personal liberty laws, which never freed a slave." [30] They were the light darts of the picador, but they were not fatal.

The salient fact was that the slaves were escaping. The underground railroad was in active operation, helping thousands to find shelter in the north or to make their way to Canada.[31] The south resented both this fact and the spirit which actuated the north; and here the southerners found impregnable ground for complaint. The north more and more detested slave-hunting.

The most conspicuous incident, which involved discussion of the constitutionality of the Fugitive Slave Law and brought to view the essential antagonism between north and south, arose out of the arrest of Sherman M. Booth in Wisconsin on the charge of assisting in the escape of a fugitive. A state justice issued a writ of habeas corpus and released Booth from the custody of a federal marshal. The matter dragged its way through the courts; the supreme court of the state declared the act of 1850 void. The controversy finally reached the Supreme Court of the United States where Chief Justice Taney rendered a decision upholding the federal authority.[32] The state indulged in exclamatory protest. The legislature drew up resolutions attacking the presumption of the federal judiciary which had assumed the power to reverse a judgment of a state tribunal involving the personal liberty of a citizen. Using with emphasis and freedom the Kentucky resolutions of 1798 and 1799, Wisconsin now announced that "a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument [the Constitution], is the rightful remedy." These declarations were made on the eve of a civil war which brought forth national power and expanded national authority, a war in which Wisconsin lost thousands of her men in defense of the union and national enforcement of national law.

In those trying days, when the slavery discussion was at its height, there was much talk at the south of secession. There were threats and there were arguments. Just how far the principles of Calhoun had permeated the south it is impossible to say; but those principles were active. Against them was arrayed able and sturdy opposition, especially the opposition of Whig leaders. Of course, to sum up a complicated condition in a few words and to state exact truth is quite impossible, but on the whole the fact appears to be this: men of Whig tradition, although that element included a considerable portion, and probably indeed the greater portion, of the large slaveholders, true to the nationalistic spirit of their party, were inclined to attack the theoretical legal right to secede; they rejected Calhounism, the doctrine of state sovereignty.[33] But they were not, many of them at least, opposed to the idea of disunion to protect their interests, if the northern states refused to recognize substantial justice as the south conceived justice to be — principally the right to an equal share of the public domain, the right to carry slavery into the west. Of course the reader may declare that there is no practical difference between (1) the doctrine of unalloyed full sovereignty of the state with the right of secession, (2) the right to revolt — that is to say, the right to break up the union for "just causes" — the justice to be passed upon by the individual state. In the history of constitutional theory, however, the distinction is not unimportant.


[1] New York was a "close" state. In 1844, if the Liberty party men had voted for Clay, he would have carried that state, and if the Free Soilers had voted for Cass, he would have carried the state in 1848; but of course not all the Free Soilers were recreant Democrats.

[2] Richardson, Messages and Papers, V, pp. 27-28.

[3] January 29, 1850. Congressional Globe, 31 Cong., 1 sess., pp. 246-247.

[4] Henry S. Foote of Mississippi, after Clay had finished presenting his resolutions and commenting on them, said if other questions connected with the subject of slavery could be satisfactorily adjusted, he saw no objection to admitting all California above the thirty-six thirty line, provided a new slave state could be formed within the existing state of Texas "so as to keep up the present equiponderance between the slave and the free States," and provided all was done by way of compromise. Ibid., p. 247. This is another evidence of the determination of southern leaders to maintain a balance between sections. See also Ibid., pp. 166-168.

[5] Even from certain inhabitants of Pennsylvania and Delaware came a petition praying for the immediate and peaceful dissolution of the union. Ibid., p. 311. See also Ibid., p. 414.

[6] Ibid., p. 250. Reference should be made to the speech of Toombs of Georgia, February 27, 1850, Congressional Globe, 31 Cong., 1 sess., appendix, p. 199: "We have the right to call on you to give your blood to maintain these thousands and all the rest of the slaves of the South in bondage.... This is a pro-slavery Government. Slavery is stamped upon its heart — the Constitution."

[7] Works, IV, p. 544. This "balance" interpretation of the Constitution is shown with astonishing clearness in a speech by S. W. Inge of Alabama defending the principle of ownership of the territories by the states as separate sovereignties, and announcing that the Constitution not only guaranteed slavery where it existed but provided for its extension. "Will the representatives of the North attempt," he asked, "by the power of numbers, to outrage the Constitution and degrade the South by the the admission of this Territory as a State, without the offer of some equivalent?" This "outrage" was the admission of California as a free state. Congressional Globe, 31 Cong., 1 sess., appendix, pp. 103-103. If one also wishes to see the ideas which hardened the northern heart, he may read in Inge's speech the account of southern prosperity which would result from southern independence — the mouth of the Mississippi would be held, Cuba would be ready to spring into the embrace of the south, a field of indefinite extension would invite "us south and west of the Rio Grande," Ibid., p. 105.

[8] Cf. H. D. Foster, "Webster's Seventh of March Speech and the Secession Movement, 1850," with a foreword by Nathaniel Stephenson, Dartmouth College Reprints, series 1, no. 5, p. 5. The main body of this article is in Am. Hist. Rev., XXVII, pp. 245-270. Stephenson says: "Here is the aspect of Webster's great stroke that was so long ignored. He did not satisfy the whole South. He did not make friends for himself of Southerners generally. What he did was to drive a wedge into the South, to divide it temporarily against itself. He arrayed the Upper South against the Lower and thus because of the ultimate purposes of men like Cheves with their ambition to weld the South into a genuine unit, he forced them to stand still, and thus to give Northern pacifism a chance to ebb, Northern nationalism a chance to develop."

[9] In 1848, he had declared, "I shall oppose all slavery extension and all increase of slave representation, in all places, at all times, under all circumstances, even against all inducements, against all supposed limitation of great interests, against all combinations, against all compromise." See James Schouler, History of the United States, V, p. 110.

[10] Congressional Globe, 31 Cong., 1 sess., appendix, p. 268.

[11] Ibid., p. 265.

[12] Seward's interpretation of "higher law" in a speech delivered July 2, 1850, appears to give a more reasonable ground for asserting that he was advocating the application of abstract theories in disregard of constitutional obligations.

[13] January 21-22, 1850. It occupies about fifty columns of the Congressional Globe, and if anyone wishes to read it, no one will interfere with him. See Congressional Globe, 31 Cong., 1 sess., appendix, p. 58 ff.

[14] "The sovereignty rests in the States, and there is no power, save that of the States, which can exclude any property, or can determine what is property, in the Territories so held by the States in common.... It is, therefore, that I have held and hold that the Missouri compromise derived its validity from the acquiescence of the States, and not from the act of Congress." Ibid., p. 150. If the states owned the territory in common, then only a unanimous agreement could exclude slavery. Davis attacked the doctrine of Cass, "This vagrant power to govern the Territories...." He denied the existence of the power of "any number of individuals, however small, however unauthorized." to exercise the sovereignty held by the states. Ibid.

[15] "The avowed object of uniting the three questions in one bill was, that the new state should serve as a tow-boat for the two territories." H. von Holst, The Constitutional and Political History of the United States, III, p. 525. "General Taylor told me, in the last conversation I had with him, that he preferred that California should not come in at all, rather than that she should come in bringing the territories on her back." Webster, Private Correspondence, II, p. 387. There was trouble brewing in Texas and threats of serious opposition, but Taylor's stand was like that of Jackson two decades before. Southern Whigs interviewed Taylor. "Southern officers," one of them told him, "will refuse to obey your orders if you send troops to coerce Texas." "Then," replied Taylor, "I will command the army in person; and any man who is taken in treason against the Union I will hang as I did the deserters and spies at Monterey." See Schouler, op. cit., V, p. 185, referring to Thurlow Weed, Memoirs, II, ch. 13, and a conversation with F. W. Seward.

[16] On the passage of the bill in the Senate admitting California, a protest was handed in by ten southern senators. It spoke of the act as contrary to the spirit and intent of the Constitution, and as in effect a declaration that the purpose of excluding slavery was so important that all principles of sound policy and of the Constitution itself were disregarded. "Against this conclusion we must now and for ever protest, and it is destructive of the safety and liberties of those whose rights have been committed to our care, fatal to the peace and equality of the States which we represent, and must lead, if persisted in, to the dissolution of the confederacy, in which the slaveholding States have never sought more than equality, and in which they will not be content to remain with less." See T. H. Benton, Thirty Years' View, II, pp. 769-770. Two senators from Virginia, two from South Carolina, one from Tennessee, one from Louisiana, one — Jefferson Davis — from Mississippi, one from Missouri, and two from Florida, signed the protest. Here there was threat of disunion based on the ground of unconstitutional action because a free state was admitted into the union without provision for a like addition to the slaveholding members of the union. What had become of the idea that admission should not turn upon the question of slavery or freedom, but on whether the constitution of the state was in accord with the Constitution of the United States? The nation was a combination of distinct sections; disturbance of the balance was unconstitutional. At no time was a more preposterous declaration submitted to a candid world. The Senate refused to receive the protest.

[17] "Is it not a false statesmanship that undertakes to build up a system of policy upon the basis of caring nothing about the very thing that everybody does care the most about? — a thing which all experience has shown we care a very great deal about?" Lincoln's reply to Douglas at Alton, October 15, 1858. Political Debates Between Abraham Lincoln and Stephen A. Douglas, p. 350. Italics of the original omitted.

[18] Of interest is a letter written by Howell Cobb of Georgia, July 17, 1850, to be found in The Correspondence of Robert Toombs, Alexander H. Stephens, and Howell Cobb, Am. Hist. Asso., Report for 1911, II, p. 196 ff. But this long letter may leave the reader in doubt of Cobb's own opinion of the technical meaning of the Compromise. He apparently firmly believed that Congress could not exclude slavery (though he would have been willing to acquiesce in the Missouri Compromise line through to the mountains of the west), and apparently to him "non-intervention" meant this: he says the Senate bill "virtually repudiates" the doctrine of the Wilmot proviso, "leaving the decision of the subject where we have always desired that it should be left, where the Constitution has put it, in the hands of the people, to be decided by their free and unrestricted will under the operation of those great natural causes and influences to which I have already referred." p. 203. This might be interpreted as meaning popular sovereignty — the right of the people of the territory to exclude slavery; he perhaps meant their right to decide when coming into the union.

[19] It is difficult to conceive that A. H. Stephens construed the Compromise as leaving the decision to the Court, in light of the fact that in 1854 he was still contending that unless Congress positively acted to establish slavery, the territory remained free as it was when admitted, and that the Court would so decide. See his letter of June 15, 1854 in Am. Hist. Rev., VIII, pp. 91-97. E. E. Sharpe, "Slavery in the Territories under the Compromise of 1850," The Historical Outlook, XVIII, p. 108: "Statesmen in Congress did not agree as to the meaning of the Compromise of 1850." Cass referred to the possibility or desirability of a Court decision. Congressional Globe, 31 Cong., 1 sess., p. 1121. What the authors said after 1850 is not sufficient to show what they intended in 1850, but their words show that the Compromise might mean many things. In considering this matter some weight should probably be given to the proposal of the Clayton Compromise of 1848.

[20] Art. IV, sec. 2, para. 3. The first two sections of the article deal with interstate relations and interstate comity, i.e., what we may term the international relations of the states.

[21] A. B. Hart, Slavery and Abolition, p. 280. Conditions before 1850 are set forth briefly by Hart. See also, M. G. McDougall, Fugitive Slaves (1619-1865), and W. H. Siebert, The Underground Railroad. For the use of state courts and state officials in carrying out federal laws, reference may be made to the use of the state courts in naturalizing foreigners, and in condemnation proceedings under the right of eminent domain. United States v. Jones, 109 U. S. 513 (1883).

[22] Prigg v. Pennsylvania, 16 Peters 539 (1842). "Upon this ground we have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace or any illegal violence." 613. "The clause is found in the national Constitution and not in that of any State. It does not point out any State functionaries or any State action to carry its provisions into effect. The States cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the Constitution." 615-616. Congressional legislation must supersede all state legislation. "... State magistrates may, if they choose, exercise ... authority, unless prohibited by State legislation." 622.

[23] Munsey v. Clough, 196 U. S. 364 (1905) and cases cited. "The person demanded has no constitutional right to be heard before the governor on either question, and the statute provides for none." Ibid., 372. "The contention that the Governor of Missouri could not act at all on the requisition papers in the absence of the accused and without previous notice to him is unsupported by reason or authority...." See Marbles v. Creecy, 215 U. S. 63, 68 (1909).

[24] "The charge against the accused must be made in some due form of law, in some species of judicial proceeding instituted in the State from which he is a fugitive." T. M. Cooley, General Principles of Constitutional Law (4th ed.), pp. 243-244.

[25] Nowhere is the difficulty of maintaining a union made of states with differing underlying presumptions more clearly illustrated than by the words of the attorney representing Pennsylvania in the Prigg case: "Now, in a slaveholding Stae [sic] color always raises a presumption of slavery which is directly contrary to the presumption in a free or non-slaveholding State; for in the latter, prima facie, every man is a free man." Prigg v. Pennsylvania, 16 Peters 539, 576 (1842).

[26] See Allen Johnson, "The Constitutionality of the Fugitive Slave Acts," Yale Law Journal, XXXI, pp. 179-181.

[27] Ibid., pp. 173, 181.

[28] J. J. Crittenden discussed this subject in Opinions of the Attorneys General, V, pp. 257-258 (September 18, 1850).

[29] For a brief summary of the Personal Liberty Laws, see McDougall, op. cit., ch. V. The author says: "But the action of the State governments in the personal liberty bills, from the time the Fugitive Slave Act of 1793 began to be executed to the outbreak of the Civil War, showed that the dissatisfaction of the North was fundamental, and was not confined merely to the few in the van of the Antislavery movement." p. 65.

[30] Congressional Globe, 36 Cong., 2 sess., appendix, p. 124.

[31] Siebert gives various estimates of the number. He refers to statements of men living at the time of the Compromise to the effect that there were from twenty to fifty thousand escaped slaves living at the north. Siebert, op. cit., pp. 237-238. For estimates of the number escaping to the north, see p. 340 ff.

[32] Ableman v. Booth, 21 Howard 506 (1859). Taney's statement of divided sovereignty — the orthodox doctrine — is especially clear and deserves attention.

[33] "Even those Democrats who saw no justification for recourse to secession in the existing situation, usually defended the doctrine of secession as a remedy against oppressive conditions. The Whigs throughout the South took issue with the Democrats on this point and were nearly united in their denial of any such right. They held that when conditions became intolerably oppressive and all other remedies had been tried and had failed, there remained recourse, in the last resort, to the inalienable right of revolution. This was the burden of the letters and speeches of their candidates, of the editorials of the Whig press, and of the resolutions of local and state Union conventions, besides those which the Mississippi constituent convention and the Tennessee legislature officially adopted under Whig influence." A. C. Cole, The Whig Party in the South, pp. 194-195. A letter of Howell Cobb, August 12, 1851, is an interesting and able refutation of secession as a constitutional right based on the suppositions of Calhoun. But even Cobb placed the right of a state to secede upon "just causes", to be determined by itself. The nature of the argument cannot be here presented in full. See The Correspondence of Robert Toombs, Alexander H. Stephens, and Howell Cobb, Am. Hist. Asso. Report for 1911, II, p. 249 ff. Stephens wrote to Cobb (then classified as a Union Democrat) June 23, 1851: "In reference to the calling out of the militia, etc., maintain the right of the President and duty of the President to execute the law against all factious opposition whether in Mass, or S. C. Maintain the power to execute the fugitive slave law at the North and the power to execute the Revenue or any other law against any lawless opposition in S. C. Turn the whole force of this upon the revolutionary movement in S. C., and urge all good citizens who value law and order and the rights of liberty and property to stand by the supremacy of the law. This is the life and soul of a republic. Warn the good people of Georgia to beware of revolution — refer to France — and plant yourself against the factionists of S. C., upon the constitution of the country. The right of secession treat as an abstract question. It is but a right to change the Govt., a right of revolution, and maintain that no just cause for the exercise of such right exists. And keep the main point prominent, that the only question now is whether we should go into revolution or not. S. C. is for it. This is the point to keep prominent." Ibid., p. 238.

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