A Constitutional History of the United States Chapter XXXV - Early Controversies Over the Slavery Problem (1833-1842) byMcLaughlin, Andrew C.
Nullification had been called into action and state sovereignty with all
its mysteries had been exhibited in opposition to the tariff. There was at the
beginning no open connection between state sovereignty and slavery. But the
wedlock was soon to be consummated.[1] As slavery reached out
westward, taking up new areas in the old states and extending into the
Mississippi basin, an economic basis was laid for sectional sentiment. State
sovereignty and local pride could then rely on a developing sense of sectional
interest. The doctrine, inaugurated against the tariff, was soon used to deny
the right to interfere with the slaveholder; but the real danger to the union
was not so much the "interposition" of a single state, as the development of a
sectional consciousness, a consciousness based on the possession of a
"peculiar" institution which was daily becoming more peculiar.
The rise of the abolitionists is of importance; [2] but the
abolition movement cannot properly be isolated and treated as altogether
separate from certain main movements and qualities of the day. In reality, if
we study the abolitionists carefully, we find that by the very extravagance or
intensity of their zeal they gave conspicuous evidence of the social mind, or
of social tendencies, not so readily discovered in more restrained efforts or
more placid movements. Great social movements do not thrive in shallow or
infertile soil. The decade beginning with 1830, in western Europe as well as in
America, was preeminently the era of humanitarianism, of social and political
reform, of movement toward a wider and freer democracy.[3] "It was
now the day of ideals in every camp," wrote John Morley in his Life of
Richard Cobden. "The general restlessness was as intense among reflecting
Conservatives as among reflecting Liberals.... A great wave of humanity, of
benevolence, of desire for improvement, — a great wave of social
sentiment, in short, — poured itself among all who had the faculty of
large and disinterested thinking." Morley was writing of England but this
tumult of new — and yet not new — emotions showed itself in America;
it appeared conspicuously among the intellectuals of New England. Emerson's
essay on "New England Reformers" should be read by anyone desiring to
understand the agitation of the reforming mind. "What a fertility of projects
for the salvation of the world! One apostle thought all men should go to
farming, and another that no man should buy or sell, that the use of money was
the cardinal evil; another that the mischief was in our diet, that we eat and
drink damnation. These made unleavened bread, and were foes to the death to
fermentation.... Others devoted themselves to the worrying of churches and
meetings for public worship; and the fertile forms of antinomianism among the
elder puritans seemed to have their match in the plenty of the new harvest of
reform.... A restless, prying, conscientious criticism broke out in unexpected
quarters. Who gave me the money with which I bought my coat? Why should
professional labor and that of the counting-house be paid so disproportionately
to the labor of the porter and woodsawyer?"
There were many movements or new social activities in various fields:
temperance, religion, newspapers, public education, missionary societies, and
labor. Even nationalism — involving a sense of unity combined with
individual responsibility — was a mark of the developing social sense. In
these movements we find in general two tendencies that were, or appear to be,
mutually antithetical: revolt against the formalism of the social order or zeal
for personal freedom and, on the other hand, the establishment of communities
or associations — individual liberty coupled with a sense of
responsibility for one's fellows. For the newer humanitarianism was in essence
different from the individualistic doctrine of an earlier day. Democracy,
indeed, contains within itself these two elementary ideas which superficially
appear to be in conflict.
If we accept these statements, we are freed from the notion that the
antislavery movement was isolated and essentially peculiar and that even
Garrisonian abolitionism was distinct and entirely isolated from the main
movements of the time. The real nature of the tragic controversy which began in
the fourth decade of the century to menace the union is seen only when we
recognize the developing forces of occidental civilization — or what we
still call civilization. It is necessary to see the south seeking to maintain a
worn-out system of economic order and battling against a resistless tide of
social progress, or, if progress be denied, of social change. The struggle to
maintain the old was long, brave, able, hopeless, foredoomed to failure.
Garrisonian abolitionism was permeated with religious zeal. To the
followers of this intrepid leader, slavery was not a misfortune or a wrong, but
a sin, a corroding sin. Like all other sins, it should be cast forth; to delay
was to indulge in willful wickedness. No excuse for moral iniquity could be
based on historical forces or on the danger and the difficulty of immediate
emancipation. Sympathy with the slaveholders, caught in a net which they had
not themselves cast, played small part in the drama of the abolitionist's
denunciation of wrongdoing. Once again appear the diversity and the
contradictions of this amazing life of ours: here was Garrison filled with zeal
for the welfare of the blacks, but filled with everything but pity for the
whites who held the blacks in bondage. Ere long, while he and his fellows were
proclaiming no union with slaveholders, they announced their devotion to a
greater union: "Our country is the world — our countrymen are all
mankind." Though the maintenance of the Constitution and the union was
necessary for the success of democracy and its mission, the Garrisonian
abolitionist scorned the Constitution as a covenant with death and an agreement
with hell.[4]
The abolitionists of the Garrison type were at no time a very large
number; nor were they a very large portion of the earnest opponents of slavery.
Among the antislavery forces there were, naturally, all degrees of activity and
interest; some were opposed to slavery on principle, but were content with
their mental disapproval; others were outspoken and vigorous; comparatively few
were committed to the doctrine of sin and instant repentance or to other ideals
cherished by the Garrisonian cult. The advanced abolitionists had no patience
with mere remedial measures; ere long they refused to vote under a government
which recognized slavery. Equally earnest but more worldly-minded and practical
souls were desirous of doing what could be done, and after a time many of them
joined actively in political and party movements. Acrid attack upon the
slave-owner and demands for his immediate repentance could not bring about
emancipation, and it did not.
It is often said that the violence of the abolitionists — their
scathing and maddening attack alone — aroused the southerners to
bitterness and made certain the direful antagonism which ended in war and
forcible manumission. This may be true. Undoubtedly Garrison's words did not
turn away wrath. A slaveholder did not relish being held up as a sinner and the
embodiment of evil. But no one of us can know that if Garrison had used gentler
manners, slavery would have peaceably disappeared. We know that certain
southerners had before 1830 worked out a philosophy of slavery [5]
which was doubtless strengthened in its appeal by vehement attack and also by
less vociferous but irritating disapproval. The slaveholding system was so
strongly intrenched, so influential, so dominant, that strenuous defense, even
reaching into philosophy and religion, was inevitable. At all events, the
south, especially the older lower south, quickly reacted against
criticism.[6]
The north was not at ease. Despite a widespread disapproval of slavery
in the abstract, the northern people in the thirties disapproved of agitation.
Antislavery sentiment grew, partly by the very effort to suppress discussion;
and after a time the chief crusader was allowed to talk and write in peace
— such peace as his own tumultuous spirit allowed him. Every passing year
made more difficult the solution of the great problem by some process of
gradual improvement, a process by which the two sections could work
harmoniously.
The preceding paragraphs, brief and inadequate though they are, may
explain in some degree why and how it was that America was slow and backward in
the task of casting off slavery. Other nations moved on, but America had to
crush slavery by force, to pay the enormous price of civil war. In explaining
or extenuating our tardiness and our final resort to bloodshed, it is necessary
to remember the tremendous importance of cotton, the fact that slavery was not,
as in the case of the British empire, in colonies, but in the very midst of the
nation, that the industrial and social fabric of a large section and of
millions of people was built upon it, that the slaves were members of a
backward race, and that our union was not a centralized unitary state, but a
confederated republic. It is not, however, the task of this work to depict the
play of the conflicting forces of freedom and slavery except as the contest
involved constitutional discussion. This must now be briefly traced.
The new activity of the antislavery forces and the rise of new sentiment
brought before Congress a number of questions involving constitutional power.
Should the slaves be emancipated in the District of Columbia, or, at least,
should the slave trade be there forbidden? What should be done with the
antislavery petitions submitted to Congress? Could and should antislavery
propaganda, the so-called incendiary publications, be excluded from the mails?
Before 1835 there was not much discussion of either the right of petition or of
slavery in the District. In the latter part of that year, the debate began.
Petitions praying for the abolition of slavery and the slave trade in the
District were presented in the House by Fairfield of Maine, and one of them was
summarily laid on the table. Discussion arose because of the motion of Slade of
Vermont that Fairfield's second petition be printed. He defended briefly the
desirability of printing. The Speaker interposed with the ruling that, on the
motion to print, it was not in order to go into the merits of the petition. The
motion to print, as well as the petition, was laid on the table by large
majorities.
Two days later (December 18, 1835) another petition was presented, and
Hammond of South Carolina moved that it be not received. "He could not sit
there and see the rights of the southern people assaulted day after day, by the
ignorant fanatics from whom these memorials proceed." [7] Discussion
followed concerning procedure under the rules of the House. Thomas of Maryland,
who had previously voted to lay petitions on the table, now declared petitions
should be received and the announcement distinctly made that they were
unreasonable and ought not to be granted. And yet he saw what was coming:
"Without our agency, indeed in defiance of all precautions on the part of
Congress, the power and purpose of the General Government to interfere with the
question of slavery has been, and will be, discussed in every newspaper, in
every periodical publication, from Maine to Missouri. It is a gross error to
suppose that this House can, by a mere sic volo, give law to the people
of the United States." The petition, on the second day of debate, was laid on
the table by a vote of 140 to 76. On the negative side were arrayed such
strange companions as John Quincy Adams of Massachusetts and Hammond and
Pickens of South Carolina.
But the matter was not so easily decided. Immediately another question
arose and gave further opportunity for debate. Adams, who had been chosen to
Congress soon after his retirement from the presidency, now entered the lists
and began the long contest for freedom of petition. The right could have found
no abler or more earnest advocate. And still, at the beginning at least, he
hoped discussion would be avoided; he believed that orderly and respectful
treatment of memorials on the dread subject would not foment debate, but an
attempt at suppression would inevitably have that result. This old, experienced
statesman, speaking freely, irrepressible, saw one thing most clearly: the way
to arouse the people was to attempt a policy of enforced silence. At first,
therefore, he advocated submission of memorials to a committee and the
unanimous acceptance of its report: [8] "And what will the
discussion amount to? A discussion upon the merits of slavery.... Well, sir,
what becomes of these incendiary pamphlets, the speeches in this House, if they
go to the public? ... The newspapers report these speeches; every speech is
circulated through your whole country; and how can you arrest it? Will you
introduce a resolution that members of this House shall not speak a word in
derogation of the sublime merits of slavery? ... Well, sir, you begin with
suppressing the right of petition; you must next suppress the right of speech
in this House; for you must offer a resolution that every member who dares to
express a sentiment of this kind shall be expelled, or that the speeches shall
not go forth to the public — shall not be circulated." [9]
During the winter the vexed subject would not down. January 4, Adams
presented a petition from certain citizens of Massachusetts praying for the
abolition of slavery and the slave trade in the District. He appeared willing
to accept the course recently followed and to move that it be laid on the
table. A Virginia member asked if the petition had been received and the
Speaker said it had not; whereupon a Georgia member moved that it be not
received. Evidently the pro-slavery leaders had decided upon final and
conclusive measures; for the Speaker, James K. Polk of Tennessee, now said
that, upon looking up authorities, he had formed the opinion that the first
question to be decided upon the motion of a member was whether the petition
should be received.[10] This was a magnificent blunder; discussion
followed discussion, not only on the rules but also on slavery. Adams appealed
from the decision of the chair.[11] Not until three weeks later was
the decision rendered, the House supporting the Speaker's ruling. "Mr. Adams
said he was glad the question had been at last decided. By the decision, every
member of the House, having a petition to present, is authorized to debate, as
long as he shall think proper, the question of reception, whether on slavery or
any other subject." [12]
In May, the fatal step was taken, fatal because the effort to prevent
discussion and to quiet the rising fever increased agitation beyond the walls
of Congress. A committee made a report and introduced resolutions announcing
that Congress had no authority to interfere with slavery in the states and
ought not to interfere with slavery in the District of Columbia; that it was
extremely important that the agitation of the subject should be finally
arrested to restore tranquillity to the public mind; and that "all petitions,
memorials, resolutions, propositions, or papers, relating in any way, or to any
extent whatsoever, to the subject of slavery, or the abolition of slavery,
shall, without being either printed or referred, be laid upon the table, and
that no further action whatever shall be had thereon." These resolutions were
passed, May 25-26, 1836. Adams, when called upon to vote on the final
resolution, said, "I hold the resolution to be a direct violation of the
constitution of the United States, the rules of this House, and the rights of
my constituents."
Of course this did not restore tranquillity to the public mind; the "gag
resolutions" awakened popular opposition and they did not altogether prevent
discussion in Congress. The earnest advocates of the full right of petition,
like Adams, as well as stern and more radical opponents of slavery, such as
Slade, could find a loophole somewhere by which to intrude the hated subject.
On February 6, 1837, Adams rose, said he had a petition from twenty-two slaves,
and asked if it came under the rule. Vociferous confusion followed. There were
demands for censure of the presumptuous member. But nothing like that could be
done without debate; and Adams had his day. The scene reminds the reader of the
famous lines of Macaulay about the boys ranging the woods to start a
hare.[13] He reminded his excited accusers that he had only asked
the Speaker for his opinion; he had presented no petition; and, to throw oil on
the fire, he remarked that in reality the petition asked not for the
emancipation of the slaves but for their continuance in bondage.[14]
The ironic humor of the whole affair would have stirred any normal-minded body
to laughter; but on this subject the House was no longer normal; it was more
nearly so after Adams had finished his scathing counter-attack and his defense
of free speech.
We may pass over the debates and the developing irritation during the
next two or three years to notice that on January 28, 1840, the House adopted
as a standing rule "That no petition, memorial, resolution, or other paper
praying the abolition of slavery in the District of Columbia, or any State or
Territory, or the slave trade between the States or Territories of the United
States in which it now exists, shall be received by this House, or entertained
in any way whatever." Nearly five years later this rule was repealed (December,
1844). It had worked immeasurable harm to the proslavery cause, had aroused
intense opposition at the north, had linked in men's minds the repression of
free speech and petition with the slavery cause, had widened and deepened the
chasm between north and south; it had helped to place the whole dreadfully
perplexing problem beyond the point where peaceful and considered plans of
restriction or gradual emancipation could be carefully and calmly
examined.[15]
The purely technical question of the right to refuse all attention to a
petition, as well as the authority to deal with emancipation or the slave trade
in the District, sinks into comparative insignificance when compared with the
consequences of suppression and the worse than futile attempts to preserve
silence. But a word is needed. Any legislative body is justified in refusing to
consider petitions concerning a topic over which it has no authority. Arguments
were put forth to the effect that Congress had no constitutional power to deal
with slavery in the District, but such arguments will scarcely bear inspection.
Congress had as much authority as had any state to deal with emancipation
within its own limits.[16] Again, no legislative body can justly
allow itself to be smothered by countless petitions and ensuing discussion on a
subject with which it does not care to deal. Justification for refusal to
discuss is thus dependent on the extent of the troublesome intrusion. But such
consideration at once leads us into a broader view of constitutional right. To
refuse to receive, to reject utterly without notice, a petition dealing with
matters vitally interesting to many people is in practical effect to nullify in
that particular the whole sacred right of petition. Free popular government
does not consist only of periodical elections or of setting up for two or more
years a hermetically-sealed legislature without avenues of contact with the
people during the term for which officials are chosen.
Thus far we have omitted the discussion in the Senate. But the speeches
there are of great interest and deserve attention. That body at no time went
quite so far as the House. No general rule was adopted against reception, but
petitions were summarily laid on the table and the effect on the public mind
was much the same as that produced by the more extreme procedure of the other
chamber. Debates in the winter of 1836 are of special interest. There was keen
argument, but very little defense of the purpose of the petitions, yet much
serious declamation about the danger of discussion, as the discussion went on
from week to week.
One, and only one, quotation can be given, and that from Calhoun,
disclosing as it does his fervent anxiety to bring the south to a common
position on this one subject of slavery. He seemed in his fervor actually to
have thought the outright refusal to accept petitions would have the effect or
some effect in silencing northern opposition. "The Senators from the
slaveholding States, who most unfortunately have committed themselves to vote
for receiving these incendiary petitions, tell us that whenever the attempt
shall be made to abolish slavery, they will join with us to repel it.... I
announce to them that they are now called on to redeem their pledge. The
attempt is now making. The work is going on daily and hourly. The war is waged,
not only in the most dangerous manner, but in the only manner it can be waged.
Do they expect that the abolitionists will resort to arms, and commence a
crusade to liberate our slaves by force? Is this what they mean when they speak
of the attempt to abolish slavery? If so, let me tell our friends of the South
who differ from us, that the war which the abolitionists wage against us is of
a very different character, and far more effective. It is a war of religious
and political fanaticism, mingled, on the part of the leaders, with ambition
and the love of notoriety, and waged, not against our lives, but our
character.... How can it be successfully met? ... There is but one way: we must
meet the enemy on the frontier, on the question of receiving; we must secure
that important pass — it is our Thermopylae." [17] Never did he
speak more wisely; and never more inadequately; slavery could not be saved by
enforced silence; and yet only by silence — as he clearly saw — could
it be saved. If that appear to be an insoluble paradox, it must stand at
that.
Calhoun's words are significant because there was already at the south,
as has been pointed out, a fairly well developed philosophy of slavery, though
of recent origin, and there was growing up, not only a social philosophy but a
religious, as well as a Biblical, defense of the system. Religious agitation
against slavery had to be met by religious pronouncements and by the awakening
of religious fervor.[18] You cannot, by passing resolutions and
rules in Congress, stem the tide of social movement, supported by religious
enthusiasm. After all, the great conflicts are conflicts of opinion and often
of opinion inflamed by religious devotion — "religious" in a very general
sense, meaning enthusiastic and emotional response to a cause believed to be
right and . just, a cause, in this case, based on conscientious beliefs and
scruples. While the petition debates went on, another problem thrust itself
upon Congress and the country: the right to exclude "incendiary" publications
from the mail. Under fear awakened by the Turner insurrection in Virginia
(1831) the south was greatly excited by the prospect of similar disorders. In
the summer of 1835 there was much excitement in South Carolina over the
discovery of a considerable quantity of inflammatory matter.[19] The
Charleston post office was broken into and the obnoxious material carried off
and burned on the Parade Ground. The postmaster brought the subject of the use
of the mails to the attention of Postmaster-General Kendall, who replied that
he had no authority to exclude matter from the mails; he said, however, to the
New York postmaster: "... you and the other postmasters who have assumed the
responsibility of stopping these inflammatory papers, will, I have no doubt,
stand justified in that step before your country and all mankind."
In his annual message of December, 1835, Jackson referred to incendiary
material and expressed the belief that doubtless no respectable portion of the
people could feel anything but "indignant regret at conduct so destructive of
the harmony and peace of the country, and so repugnant to the principles of our
national compact and to the dictates of humanity and religion." He suggested
the passing of a law to prohibit, "under severe penalties, the circulation in
the Southern States, through the mail, of incendiary publications intended to
instigate the slaves to insurrection." In the Senate, the subject, on the
motion of Calhoun, was referred to a committee of five; its members consisted
of four from the slaveholding states and one from the north. But the committee
could not reach agreement. It finally introduced a report and proposed a bill,
all the terms of which satisfied only a minority of the
committee.[20] The constitutional questions raised in the discussion
are still of unusual interest.
The bill, it should be noted, did not carry out the President's
suggestion, for the bill provided for the punishment of any deputy postmaster
who knowingly received or put into the mail "any pamphlet, newspaper, handbill,
or other paper ... touching the subject of slavery, addressed to any person or
post office in any State, ... where, by the laws of the said State, ... their
circulation is prohibited." [21] The President's plan implied the
right of the government to decide what was objectionable and what not; it might
indeed have tacitly admitted that the government was not under obligation to
act at all; but the bill placed the duty on the government to recognize and
give effect to the laws of the states. Calhoun was now prepared to use his
sovereignty doctrine as a shield for slavery. The course of the debate, we
unfortunately cannot follow in detail; the yellow pages of The Globe or
the Register of Debates furnish interesting reading
to-day.[22]
Of particular consequence was Calhoun's position.[23] The
federal government was under obligation to protect the states, and "Though the
power of the general Government over the mail is delegated, it is not more
clear and unquestionable than the rights of the States over the subject of
slavery — a right which neither has been nor can be denied. In fact, I
might take higher grounds, if higher grounds were possible, by showing that the
rights of the States are as expressly reserved as those of the general
Government are delegated.... Will any rational being say that the laws of the
States of this Union, which are necessary to their peace, security, and very
existence, ought to yield to the laws of the general Government regulating the
Post Office, which at best is a mere accommodation and convenience, and this
when this Government was formed by the States mainly with a view to
secure more perfectly their peace and safety? But one answer can be given. All
must feel that it would be improper for the laws of eleven States in such case
to yield to those of the general Government, and, of course, that the latter
ought to yield to the former. When I say ought, I do not mean on the
principle of concession. I take higher grounds. I mean under the obligation of
the constitution itself." [24]
But, in the opinion of the great Carolinian, the slaveholding states had
a constitutional remedy. In closing his great speech of April 12, 1836, Calhoun
turned conclusively to "interposition", that is to say, to nullification. "If
you refuse co-operation with our laws, and conflict should ensue between your
and our law, the southern States will never yield to the superiority of yours.
We have a remedy in our hands, which, in such event, we shall not fail to
apply. We have high authority for asserting that, in such cases, 'State
interposition is the rightful remedy' — a doctrine first announced by
Jefferson — adopted by the patriotic and republican State of Kentucky by a
solemn resolution, in 1798, and finally carried out into successful practice on
a recent occasion, ever to be remembered, by the gallant State which I, in
part, have the honor to represent." [25] In other words, what was
best for the states in the protection of their reserved rights, and especially
in the protection of slavery, was a question for the states to answer; in such
a decision the general government must acquiesce. If the general government
refused to acquiesce, then nullification and presumably, if need be, secession
must follow. But the result was not what Calhoun hoped. The bill introduced in
February was defeated in June by a vote of twenty-five to nineteen. A bill was
finally passed making it a penal offense for a postmaster unlawfully to detain
and not deliver mail-matter to the person addressed.
Naturally there was comment on the freedom of the press and denial of
the right of Congress to exclude material from the mail. In light of later
construction of the Constitution, we can speedily dispose of some of these
problems. Congress can certainly determine that certain matter must not be
carried in the mail; in managing the post office it can exercise what is
sometimes called (probably improperly) the federal police power — the
right, in exercising its granted authority, to take into consideration the
peace and well-being of society.[26] What limits there may be upon
this power of exclusion has not been authoritatively decided, but it has been
declared that in the enforcement of an act the protection furnished by
constitutional provisions, notably the fourth amendment, is not to be
infringed. The Court has also declared that if printed matter be excluded from
the mail, its transportation in other ways cannot be forbidden, and that no
regulations can be enforced against the transportation of printed matter in the
mail so as to interfere in any manner with the freedom of the
press.[27] Whether Congress can enforce the right of carrying into
the state and delivering mail-matter held by the state to be seditious or
dangerous has not been passed upon by the Supreme Court. The question would
seem properly to turn upon the moment when the material becomes subject to the
state law.[28]
Was Calhoun totally wrong or can Congress recognize in any way the laws
of the states and, by acting or refusing to act, support or give effectiveness
to those laws? In light of decisions of a later day, there appears now to be no
difficulty in answering that question. The problem arose in connection with
state prohibition laws; an act of Congress provided that liquors transported
into a state should upon arrival be subject to the police power of the state
and should not be exempted therefrom by reason of their being introduced in
original packages. If Congress in its discretion can determine what is or is
not a suitable regulation of commerce, and can adopt, if it sees fit,
regulations intended to give effect to the laws of the state,[29] it
can presumably take the same position under the post office power.
But when all is said, the important fact is not the power of Congress,
technically considered, but application of the principle of state sovereignty
to the slavery question. The union was formed for the sake of the states and
their interests; in performing its duties, those interests should be paramount
and conclusive; what the states, even in their ordinary legislation, desired,
that must be done by Congress in exercise of its delegated powers. Such in
essence was the argument; and more: whatever any one state asserted to be its
particular interest must be a check on congressional action, and if Congress
neglects the interest of a state, nullification is the rightful remedy. Under
this interpretation of national authority, what was "the supreme law of the
land"?
Here, then, the banns of wedlock between slavery and state sovereignty
were formally proclaimed. The announcement was a momentous fact and of great
consequence. The master of ceremonies was in deadly earnest; but after all, it
was a marriage of convenience, indeed in some ways an unnatural union; for
loudly as it might be asserted that slavery was a matter for the south alone,
slavery was in danger as long as it attempted to be purely local. As the days
went on, the thought that slavery might be confined to the states where it
existed, to live actually a local life, cut off from territorial expansion,
became a sort of nightmare to the southern leaders. Agriculture, where work was
done by slaves, could not thrive except as an extensive industry, and — as
the past had shown exhaustion of soil and wasteful methods — new lands,
and fresh soils, and virgin opportunities beckoned slavery on to expansion, we
might even say conquest.
And still, as we have already seen, there was some bond of natural
affection between slavery and state sovereignty. The menace to state autonomy
was the increasing population of the free states, and that increase must be
met. As already indicated, Calhoun at a later day elaborately developed the
whole philosophy of inhibitions on governmental action; and he found no
sanction for the authority of mere numbers. Slavery and state sovereignty were
in some respects bound in a companionate marriage, a marriage of inner
sentiment and of mutually supporting emotional responses.
As one watches Calhoun, struggling like a valiant knight in defense of
honor and for the colors of his fair lady, slavery, the picture elicits at once
admiration and compassion. With superb ability he encountered invincible hosts;
he was confronted by the growing spirit of humanitarianism, not confined to
America, though strikingly illustrated by waxing antislavery sentiment and
extravagantly exhibited by the Garrisonian abolitionists; he was faced by
growing nationalism, and by the disconcerting temper of modern life which in
some ways was to grow in intensity — a temper which battered at the walls
of local privacy and broke down the walls of seclusion of nations.
No one could put the case for slavery more cogently than Calhoun. He
chiefly defended negro slavery, the fact and the form of slavery as it
existed in America. But his arguments must stand as a defense of the few and of
the right of the strong and those possessed of assumed superiority to be served
by the many, whether the many be black or white. He defended negro slavery
because it solved the race problem and the labor problem. It hardly seems
possible that in 1836 and 1837 Calhoun saw all this so clearly as it is here
presented; but there his words stand to be read by anyone curious enough to
take the trouble. Slavery to Calhoun in 1837 was no longer a thing to be
regretted or even remotely apologized for, but a thing for which the south
would sacrifice its life.
Calhoun's most powerful defense of slavery is in his speech on the
reception of abolition petitions, February 6, 1837. "They who imagine that the
spirit now abroad in the North, will die away of itself without a shock or
convulsion, have formed a very inadequate conception of its real character; it
will continue to rise and spread, unless prompt and efficient measures to stay
its progress be adopted.... By the necessary course of events, if left to
themselves, we must become, finally, two people.... The conflicting elements
would burst the Union asunder, powerful as are the links which hold it
together. Abolition and the Union cannot co-exist." Thus did Calhoun anticipate
by some twenty years the statement of Lincoln that the nation could not long
exist half slave and half free; a house divided against itself cannot stand. "I
hold that in the present state of civilization, where two races of different
origin, and distinguished by color, and other physical differences, as well as
intellectual, are brought together, the relation now existing in the
slaveholding States between the two, is, instead of an evil, a good — a
positive good." He compared the conditions of the laboring classes of Europe
with those of the American slaves and found the verdict in favor of American
slavery. With this, however, he was not content: "But I will not dwell on this
aspect of the question; I turn to the political; and here I fearlessly assert
that the existing relation between the two races in the South, against which
these blind fanatics are waging war, forms the most solid and durable
foundation on which to rear free and stable political institutions. It is
useless to disguise the fact. There is and always has been in an advanced stage
of wealth and civilization, a conflict between labor and capital. The condition
of society in the South exempts us from the disorders and dangers resulting
from this conflict; and which explains why it is that the political condition
of the slaveholding States has been so much more stable and quiet than that of
the North." Slavery was not only the solution of the labor problem but the
surest basis for a developing civilization; the way to promote civilization
and, presumably, culture was to rear them upon the backs of labor owned by
capital.[30]
Determined to have a duel à outrance with abolitionism and
also desiring to force the Senate to accept some of his basic theories, Calhoun
introduced into the Senate a series of resolutions, December 27,
1837.[31] They are of consequence because, though Calhoun was then
in advance of his time, they show his power as a prophet, his appreciation of
the issues which time would make plain. Their substance is as follows:
(1) The Constitution was adopted by independent, sovereign states acting
severally, and each state entered the union with a view to its increased
security against all dangers, domestic as well as foreign.
(2) The states retained, severally, the sole power over their own
domestic institutions and police, and "any intermeddling of any one or more
States, or a combination of their citizens, with the domestic institutions and
police of the others, on any ground, or under any pretext whatever, political,
moral, or religious, with the view to their alteration, or subversion, is an
assumption of superiority not warranted by the Constitution ... subversive of
the objects for which the Constitution was formed...."
(3) The government was instituted by the several states as a common
agent, and it is bound so to exercise its powers as to give increased stability
to the domestic institutions of the states.
(4) Slavery is an important part of the domestic institutions of the
slaveholding states, inherited from their ancestors and recognized by the
Constitution as forming an essential element in the distribution of powers
among the states; no change of opinion in other states can justify attacks upon
it; such attacks are a violation "of the mutual and solemn pledge to protect
and defend each other," are a breach of faith, and a violation of the "most
solemn obligations, moral and religious."
(5) The intermeddling of any person, with the intent to abolish slavery
in the District or in any of the territories on the ground that it is sinful or
immoral, or the passing of any act of Congress with that in view, would be a
dangerous attack on the institutions of the slaveholding states.
(6) The union rests on equality. "... to refuse to extend to the
Southern and Western States any advantage which would tend to strengthen, or
render them more secure, or increase their limits or population by the
annexation of new territory or States, on the assumption or under the pretext
that ... slavery ... is immoral ... would be contrary to that equality of
rights and advantages which the Constitution was intended to secure alike to
all the members of the Union, and would, in effect, disfranchise the
slaveholding States, withholding from them the advantages, while it subjected
them to the burthens, of the Government."
The first and second resolutions were passed without modification. It
seems scarcely possible that the learned senators comprehended fully the
implications of the first, concerning which Calhoun said, "The idea that this
Republic was made up of one great aggregate of individuals, tended to increase
the zeal of these fanatics, and a more rapid spread of their doctrines. The
remedy must be found in the promulgation of opposite doctrines" — the true
doctrines of the Constitution. The third and fourth resolutions were passed
after slight alteration; the fifth was altered; the sixth was not adopted but
there was added to the fifth a statement against abolishing slavery in the
territories where it already existed. That anyone, not an earnest and sincere
advocate of slavery, should have been willing to vote for the declaration which
was embodied in the fifth resolution, as it was finally passed, seems strange;
for the declaration was there made that any attempt to abolish slavery in the
District would be a violation of the faith implied in the cessions by Virginia
and Maryland. Nothing could be more in conflict with historical
fact.[32]
So it seemed that, as long as any state maintained slavery, nothing must
be done by Congress to detract in any manner from its security; the citizens in
every other state must preserve inviolable quietness; the United States must
stand alone chained to a system of labor and social order from which the rest
of the civilized world was moving rapidly away. Did Calhoun really mean that no
man or woman in a remote valley of the White Mountains or a far-off corner of
the western prairies should denounce slavery or lament its existence or declare
its immorality, because to do so was to break the holy spirit of the compact?
Democracy and popular government are founded on the right and the duty of free
speech, free discussion, and interchange of opinion; but slavery would have
none of it; and so its very presence, with all the much-heralded alarm and
apprehension, was contradicting the very essence of free government.
But the slavery problem would not down, despite resolutions. It came up
in one place if not in another. In the discussions concerning petitions and the
circulation of incendiary materials, there was the assumption or the expressed
declaration that meddling of northerners with the subject of slavery was a
violation of constitutional obligation. Slavery belonged to the south, and the
south must be left alone; slavery was a local matter, so local that to discuss
it a thousand miles away endangered its existence; so local that it must be
national — at least there was national obligation binding on Massachusetts
and Vermont not to discuss the denial of human rights by South Carolina. The
time was not far distant when slavery must be considered so local, so
distinctly a "peculiar institution", that it must in some degree have
recognition even in international affairs.[33]
A series of questions and controversies arose from the domestic slave
trade whereby slaves were carried by sea from one American port to another. Of
these, the most important was the case of the brig Creole. The slaves on
board that ship going from Hampton Roads, Virginia, to New Orleans rose in
revolt (November, 1841), took charge of the ship, and brought her into the port
of Nassau, in the Bahamas, where slavery had been abolished. Did they become
free men when by revolt they obtained their physical freedom? Were they free
when they reached free soil and found refuge in a land which did not recognize
slavery?
Webster, then Secretary of State, demanded of the British government the
return of the negroes as criminals guilty of mutiny and murder. Britain
refused. Joshua Giddings, a Representative from the Western Reserve District of
Ohio, offered in the House a series of resolutions deserving particular
attention: (1) before the adoption of the Constitution, each state had full and
exclusive jurisdiction over slavery within its own territory. (2) By adopting
the Constitution, no part of this power was delegated to the federal
government. (3) All authority over commerce on the high seas was surrendered to
the federal government. (4) Slavery, being an abridgment of the natural rights
of man, can exist only by force of positive municipal law and is confined to
the territorial jurisdiction of the power creating it. (5) When a ship leaves
the waters of a state and enters upon the high seas, the persons on board cease
to be subject to the slave laws of the state. (6) When the Creole left
the territorial jurisdiction of Virginia, the persons on board became amenable
only to the laws of the United States. (7) In resuming their natural rights of
personal liberty, these persons violated no law of the United States and were
not justly liable to punishment. (8) All attempts to regain possession of them
and reenslave them are unauthorized by the Constitution and incompatible with
national honor. (9) Efforts to exert national influence in favor of the
coastwise slave trade, "or to place this nation in the attitude of maintaining
a 'commerce in human beings,' are subversive of the rights and injurious to the
feelings of the free States, are unauthorized by the Constitution, and
prejudicial to our national character."
Thus, at last, the gauntlet was frankly thrown down. It is as if
Giddings had said: you claim that slavery is your peculiar institution, that it
is nobody's business but your own, that it is purely local; we accept your
assertion; we proclaim it a local institution and insist that it be kept at
home. You have complained of alarm and of harassed feelings; we also complain,
for our pride and our love of national honor are sorely assaulted by your
endeavor to make slavery a national institution, subject to national
protection, and to be defended by the nation in international disputes.
But passing over the cleverness of Giddings's tu quoque argument,
the issue was fairly presented — was slavery really a local institution?
Did Congress have any authority over the subject at all? Must slavery be
protected beyond the limits of the slaveholding state? Could a slaveowner under
national protection take his slaves onto the high seas or into the national
domain of the west?
In his argument with the British authorities concerning the status of
the fugitive blacks, Webster claimed that slavery was recognized by the
Constitution and that the slaves on the brig Creole continued to be
property on the high seas. Not until twelve years later was the dispute
decided, when Joshua Bates, an American-born English banker,[34] to
whom as arbitrator the subject was submitted, decided in favor of the land of
his birth; and the British government paid one hundred and ten thousand dollars
because British officials had refused to return the refugees to slavery.
Giddings was censured by a vote of the House of nearly two to one; a
two-thirds vote was needed for expulsion. Enough members voted in his favor to
indicate a developing sense of self-respect among the northern
members.[35] He immediately resigned but he was promptly
reëlected by his constituents; henceforth members of Congress were allowed
to speak and offer resolutions on the subject of slavery without being harried
and browbeaten by an intolerant majority.
Webster, as we have seen, defended property in slaves on the high seas
on the ground that the Constitution recognized property in slaves. The pivotal
question of the next two decades was this: what was the nature of slavery,
constitutionally speaking? To what extent, if at all, did the Constitution
recognize slaves as property? The Constitution did not use the words "slaves"
or "slavery"; the words were carefully avoided. It provided for the counting of
three-fifths of "other persons" in determining the number of representatives
assigned to a state. It forbade Congress to prohibit, before the year 1808, the
introduction of "such persons" as any of the existing states should think
proper to admit before the year 1808. It declared that no person held to
service or labor in one state should obtain freedom by flight into a free
state, but should be delivered up on demand to his master. The first of these
constitutional provisions recognizes in reality the existence of slavery within
some of the states; the second, in placing the limitation on the power of
Congress, evidently recognizes prevalent objections to the slave trade and the
probability of congressional action; the third — the fugitive slave clause
— plainly indicates that slavery is in its nature a local institution; it
was not considered necessary to place in the Constitution an announcement that,
if horses should escape from Maryland into Pennsylvania, they would remain the
property of the person from whom they fled. As a matter of plain, unadorned
fact, the Constitution and the debates in the Convention suggest strongly, if
they do not actually demonstrate, that slavery was on the whole looked upon
with disapproval. To meet the immediate demands of the far southern states,
where there was or seemed to be a need of labor, a temporary concession was
made; importation of slaves was allowed for twenty years (1788-1808). This and
the other provisions of the Constitution already referred to furnish slender
basis on which to set up a constitutional and national recognition of property
in slaves and the duty of Congress to protect it on the high seas and to defend
it in international controversies.
Of course, someone may assert that Congress is under obligation to
recognize as property whatever any state by its laws holds to be property. That
Calhoun or other zealous advocates of property in men would have been content
with such a principle is exceedingly doubtful. Would the government of the
United States have been under obligation to protect property in white men and
women, if Massachusetts had established white slavery? If the answer is in the
negative, then the particular right to have slave property protected by
national power had to rest, not upon the mere fact of slave property in one or
more states, but either upon express constitutional recognition of property in
black slaves or upon the presumption that the natural and inevitable
condition of blackness was a condition of bondage.
[1] Benton, speaking of earlier conditions in the south and
comparing them with the situation in the thirties, wrote: "A real change had
come, and this change, the effect of many causes, was wholly attributed to one
— the unequal working of the Federal Government — which gave all the
benefits of the Union to the North, and all its burdens to the South. And that
was the point on which Southern discontent broke out — on which it openly
rested until 1835; when it was shifted to the danger of slave property." T. H.
Benton, Thirty Years' View, II, p. 133.
[2] For the early history of the antislavery movement in
America, see Hart, Slavery and Abolition, ch. XI. For a fuller study,
see A. D. Adams, The Neglected Period of Anti-Slavery in America
(1808-1831). "When Jackson became president, in 1829, anti-slavery seemed,
after fifty years of effort, to have spent its force. The voice of the churches
was no longer heard in protest; the abolitionist societies were dying out;
there was hardly an abolitionist militant in the field; the Colonization
Society absorbed most of the public interest in the subject, and it was doing
nothing to help either the free negro or the slave; in Congress there was only
one anti-slavery man, and his efforts were without avail. It was a gloomy time
for the little band of people who believed that slavery was poisonous to the
south, hurtful to the north, and dangerous to the Union." Hart, op.
cit., pp. 165-166.
[3] "... the general humanitarian movement was by no means
solely an American movement; it showed itself in Europe as well as on this side
of the water. Furthermore, it was closely associated with, or it embodied
within itself, the fundamental philosophy of developing democracy, even
political democracy; it helped toward the enlargement of the suffrage, the
growing appreciation of man's right to self-government, and it made for an
improvement in the conditions of labor.... There was a general trend toward
social reform, which in succeeding years swept strongly onward and has by no
means spent its force at the present moment." A. C. McLaughlin, Steps in the
Development of American Democracy, pp. 118-119.
[4] "And your covenant with death shall be disannulled, and
your agreement with hell shall not stand...." Isaiah, XXVIII, 18. Garrisonian
abolitionism outran itself; so anxious was Garrison for freedom for everyone
that he despised the nation and nevertheless reached out for a world of
brotherhood.
[5] See A. O. Craven, Edmund Ruffin Southerner, pp.
124-125; W. E. Dodd, The Cotton Kingdom, pp. 48-70.
[6] There had been a good deal of opposition to slavery in
the southern states. Still we find the Governor of South Carolina recommending
a "firm determination to resist, at the threshold, every invasion of our
domestic tranquillity, and to preserve our sovereignty and independence as a
state, ... and, if an appeal to the first principles of the right of
self-government be disregarded, and reason be successfully combatted by
sophistry and error, there would be more glory in forming a rampart with our
bodies on the confines of our territory, than to be the victims of a successful
rebellion, or the slaves of a great consolidated government." The South
Carolina senate and the house passed resolutions. Governor Troup of Georgia in
1825 said, "Temporize no longer — make known your resolution that this
subject shall not be touched by them, but at their peril...." Words of this
kind were brought forth not by abolitionism, but by opposition to the Negro
Seamen Act, by resolutions of the Ohio legislature advocating gradual
emancipation and favoring colonization of free negroes, and by a bill
introduced by Senator King for using funds from land sales to aid in
emancipation and removal of slaves. Ames, State Documents, no. 5, p. 11
ff.
[11] "Mr. Hardin rose to a question of order. It was not in
order, in his estimation, to discuss the motion of the gentleman at this time.
The order of business now seemed to be, first, prayers, then the journal was
read, and afterwards, on almost every morning, the gentleman from Massachusetts
[Mr. Adams] made a speech." Ibid., col. 2315.
[12]Ibid., col. 2316. It is to be noticed that a
Maine member, Leonard Jarvis, in January, 1836, offered a resolution declaring
that the subject of the abolition of slavery in the District ought not to be
entertained, and petitions ought to be laid on the table and not referred or
printed. Ibid., col. 2241.
[13] "All shrank, like boys who, unaware, Ranging the woods
to start a hare, Come to the mouth of the dark lair Where, growling low, a
fierce old bear Lies amidst bones and blood."
[15] For discussions of those fateful five years, see H. von
Holst, The Constitutional and Political History of the United StatesIII,
especially pp. 475-478 on "Adams's 'Trial.'"
[16] Arguments on constitutional power to emancipate can be
found in Congressional Debates (Register of Debates), 24 Cong., 1 sess.,
cols. 2020-2021. Of special interest is the speech of Wise of Virginia.
Ibid., col. 2024 ff. He reached the conclusion that Congress was without
technical authority; by this reasoning slavery, it would appear, was riveted
forever on the District and hence on the nation. For Slade's speech and reply
to Wise, see Ibid., col. 2042 ff. Slade effectively showed that but
recently the subject of slavery and emancipation had been openly discussed in
Virginia and Kentucky. Ibid., cols. 2058-2060. Much has been made of the
extreme position of the abolitionists; and one should read Wise's speech,
which, aside from the constitutional argument, illustrates the sort of
declamatory denunciation which was bound to awaken resentment at the north. It
was not enough to complain of Garrisonian taunts and vituperation; anyone
proposing emancipation in the District, however courteously, was in southern
eyes heaping insult on the south and endangering the very foundations of
society. Further constitutional arguments may be found in Ibid., 2070
ff.
[17] March 9, 1836. Ibid., cols. 774-775. Clay
objected to receiving and immediately rejecting a petition. "He thought that
the right of petition required of the servants of the people to examine,
deliberate, and decide, either to grant or refuse the prayer of a petition,
giving the reasons for such decision." Ibid., cols. 778-779. For a later
presentation of Clay's position (1839) on the right to provide for
emancipation, see The Life and Speeches of Henry Clay (1843 ed.), II, p.
395 ff. Lest one get the opinion that the objection to the abolition petitions
came solely from the south, it is well to notice resolutions passed by the
Maine legislature and presented to the federal Senate (April 8, 1836). They
were passed unanimously by the Maine senate and almost unanimously by the
house. They asserted that the government of the United States is one of
enumerated, limited, and defined powers, that the power of regulating slavery
within the states does not belong to Congress, that the states, "with certain
defined exceptions," are, with respect to each other, distinct and sovereign
states; any interference by a state, or by the citizens of a state, with the
domestic concerns of another state, "tends to break up the compromises of, and
to disturb, the Union." Congressional Debates (Register of
Debates), 24 Cong., 1 sess., col. 1109.
[18] I am not implying by these sentences that the
southerners were insincere or hypocritical. I am speaking of a natural tendency
to develop a philosophy and, if need be, a religious enthusiasm to support a
cause.
[19] In 1835, a circular from the American Anti-Slavery
Society was sent to the auxiliary societies asking for money for agents,
periodicals, and distribution of tracts. Many tracts and papers were printed
and sent into the south. None, it was said, were sent to negroes; but of course
the south took alarm not to be wondered at. Alarm was followed by violence. For
some details, see J. B. McMaster, A History of the People of the United
States, VI, p. 272 ff. The Anti-Slavery Society of Massachusetts
indignantly denied that it had been "guilty of circulating incendiary
publications among the southern slaves." Nor, it believed, was any antislavery
society guilty. "We have never advocated the right of physical resistance, on
the part of the oppressed." Reference should be made to "Walker's Appeal" which
pictured "wretchedness in consequence of slavery" and found its way to the
south (1829).
[22] "Who is to determine, and in what manner, whether the
constitution of Massachusetts, which declares that all men are born free and
equal, or the declaration of independence ... touch the subject of slavery, or
are incendiary? ... if I wish to send a letter, a paper; yes, sir, the
declaration of independence itself, through the Post Office, it must first be
scrutinized by a clerk, to ascertain whether it violates the laws of Alabama,
Carolina, or some other State; and if, in his opinion, the subject of slavery
is touched, so as to offend one of these sweeping laws, I am denied the
privilege of the mail." Davis of Massachusetts, Ibid., col. 1106.
[23] "But the principle of the message goes still farther,"
Calhoun pointed out. "It assumes for Congress jurisdiction over the liberty of
the press. The framers of the constitution (or rather those jealous patriots
who refused to consent to its adoption without amendments to guard against the
abuse of power) have, by the first amended article, provided that Congress
shall pass no law abridging the liberty of the press, with the view of placing
the press beyond the control of congressional legislation. But this cautious
foresight would prove in vain, if we should concede to Congress the power which
the President assumes of discriminating in reference to character what
publications shall or shall not be transmitted by the mail. It would place in
the hands of the general Government an instrument more potent to control the
freedom of the press than the sedition law itself, as is fully established in
the report." Ibid., col. 1138.
[24]Ibid., cols. 1144-1145.
[25]Ibid., col. 1148.
[26] "The circulation of newspapers is not prohibited, but
the government declines itself to become an agent in the circulation of printed
matter which it regards as injurious to the people." Ex parte Rapier, 143 U. S.
110, 133 (1892).
[27] The Supreme Court has upheld the right of Congress to
exclude lottery circulars and newspapers containing lottery advertisements from
the mail. Ex parte Rapier, 143 U. S. 110 (1892). In an earlier case, the Court,
upholding a federal statute making it a penal offense to send lottery circulars
through the mail, called attention to the obligation to recognize the fourth
amendment and said also, "Nor can any regulations be enforced against the
transportation of printed matter in the mail, which is open to examination, so
as to interfere in any manner with the freedom of the press. Liberty of
circulating is as essential to that freedom as liberty of publishing; indeed,
without the circulation, the publishing would be of little use. If, therefore,
printed matter be excluded from the mails, its transportation in any other way
cannot be forbidden by Congress." Ex parte Jackson, 96 U. S. 727, 733 (1878).
Under the commerce power the carrying of lottery tickets by an express company
from one state to another can be prohibited. See Champion v. Ames, 188
U. S. 321 (1903). For further discussion, see Lewis Publishing Co. v.
Morgan, 229 U. S. 288 (1913); Milwaukee Publishing Co. v. Burleson, 255
U. S. 407 (1921).
[28] In 1857 Attorney-General Cushing gave his opinion
concerning this matter. The crucial portion of the opinion is as follows: "On
the whole, then, it seems clear to me that a deputy postmaster, or other
officer of the United States, is not required by law to become, knowingly, the
enforced agent or instrument of enemies of the public peace, to disseminate, in
their behalf, within the limits of any one of the States of the Union, printed
matter, the design and tendency of which are to promote insurrections in such
State." He was discussing the act of 1836. Official Opinions of the
Attorneys General, VIII, p. 501. We are, however, entitled to question this
opinion as of present validity.
[29] See In re Rahrer, 140 U. S. 545 (1891); Clark Distilling
Co. v. Western Maryland Railway Co., 242 U. S. 311 (1917).
[30] Further defense of slavery is in the report of the
committee on incendiary publications, February 4, 1836. Calhoun, Works,
V, p. 190 ff. Here one passage is specially significant. To what extent was it
true prophecy? "Social and political equality between them [the two races] is
impossible.... But, without such equality, to change the present condition of
the African race, were it possible, would be but to change the form of slavery.
It would make them the slaves of the community instead of the slaves of
individuals...." Ibid., p. 205.
[31]Cong. Globe, 25 Cong., 2 sess., p. 55.
[32] Webster answered the faith argument. See Works,
IV, pp. 374-375.
[33] See Calhoun's position in connection with the annexation
of Texas which will be referred to in a later chapter.
[34] Hart, Slavery and Abolition, pp. 294-295.
[35] The vote indicates clearly that the odium of intolerance
is not to be placed upon the south alone. Northern members, with no such
provocation as the southerners felt, voted in the affirmative. The excuse for
the vote was that the matter was at the time a subject of diplomatic
discussion. But that is no excuse at all.