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A Constitutional History of the United States
Chapter XXXV - Early Controversies Over the Slavery Problem (1833-1842)
by McLaughlin, 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 ŗ 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 reŽlected 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.

[7] Congressional Debates (Register of Debates), 24 Cong., 1 sess., col. 1967.

[8] Ibid., col. 2001.

[9] Ibid., col. 2002.

[10] Ibid., col. 2129.

[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."

[14] Congressional Debates (Register of Debates), 24 Cong., 2 sess., col. 1611.

[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).

[20] Congressional Debates (Register of Debates), 24 Cong., 1 sess., col. 385.

[21] Ibid., col. 383.

[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.

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