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|Joe Ryan Speaks on the Capitol Mall 1989|
Racism caused the American Civil War, plain and simple: a racism that transcended social culture, geographic section, and political orientation, and became entangled with the creation of the Constitution and the Union.
Columbus discovered the Americas in 1492, and within three years the beginning was made of the harsh oppression which would cause the native races to disappear and bring Africans in chains to America. One hundred and thirty years later, at the time the Jamestown colony took root in Virginia, slavery was the rule in the Americas. Initially, to people its American colonies, the British government sent indentured servants to the New World, then criminals, and finally Africans as slaves. By the middle of the Eighteenth Century, the slave trade had developed into a huge business, profitable to both the indigenous entrepreneurs along the West African coast and the owners of New England ships. Slaves were assembled in Africa through purchase, barter, raiding, kidnapping and warfare, brought to the coast by Africans and sold to African brokers who held them in barracoons until ships arrived to carry them by the Middle Passage to America. The total volume of this trade is unknown, but during its heyday at least seven million enslaved souls reached American shores.
Slave Percentage of Total Population by State, 1790
(See, Clayton E. Cramer, Black Demographic Data, A Sourcebook (1997))
The Fledgling United States, 1787
The map illustrates the military situation as the founders knew it, in 1787, when at Philadelphia they drafted the Constitution. At that time the general government of the “United States” was known as the Continental Congress, a body made up of representatives of the several “States” which could pass no substantial laws governing the whole without unanimous consent. With their “country” surrounded as it was by the Great Powers of Europe, the founders at the time the constitution was written had to be thinking there was going to be heavy military confrontations between their Union and the Great Powers for possession of the resources of the continent. Therefore, the paramount thought in all their minds had to be the concept of unity—the principle of all for one and one for all. This reality explains how two distinctly different societies became so locked together politically that no key but war could separate them.
History records the plain fact that, at the time the Constitution was drafted, the attitude of the people living in the states north of the Mason-Dixon line was steadily coalescing in support of abolition. In 1777, Vermont prohibited slavery through its constitution. In 1783, the supreme courts of Massachusetts and New Hampshire declared slavery volative of their state constitutions. In 1784, the legislatures of Rhode Island and Connecticut abolished slavery. And by 1799, New York and Pennsylvania followed suit, with New Jersey tending to follow. Yet, at the Philadelphia Convention, their leaders—men like Benjamin Franklin, John Jay, and John Adams—joined with the great men of the South—George Washington and James Madison—to fashion a new government for the country that would preserve the legality of slavery in the United States for eighty years. The simple fact of the matter was that National Security depended upon slavery at the time: the North needed the South to be a functioning economic unit of the Union, if unity was to have any value in staving off the great powers of Europe.
The Continental Congress was in session in New York at the same time the Constitutional Convention was in session in Philadelphia. Key negotiations occurred between the two bodies which resulted in the formation of the new government.
On the South’s side there could be no common government unless its slave population was counted in the calculation of the number of representatives to be assigned its congressional districts. On the North’s side, there could be no common government unless Free states would always exceed Slave states and thus ultimately control the balance of power.
Since Virginia held title by Royal land grant to the “Old Northwest Territory,” a deal was made whereby the Continental Congress accepted Virginia’s cession of the Territory to the Union, with slavery prohibited therein; and the Constitutional Convention accepted the insertion of Article I, Section 2 into the Constitution. (“Representatives. . . shall be apportioned among the several States. . . according to their respective numbers, which shall be determined by adding to the whole number of free persons. . . three fifths of all other persons.”)
Both sides understood at the beginning of the new compact that when all the existing territory of the Union was turned into states, there would be more Free states than Slave; but not enough Free states to make up a super majority—the number needed to amend the constitution. As long as that number did not reach three fourths the constitution, permitting slavery plainly by its terms in any state that embraced it, could never be amended. Thus, the constitutional provision of Article I, in conjunction with Article IV, Section 2—“No person held to labor in one State, under the laws thereof, escaping into another shall. . . be discharged from such labor”—created the uneasy alliance that preserved the institution of slavery in the South for another eighty years.
The Continental Congress was handed the proposed constitution that the Philadelphia Convention had drafted: instead of voting it up or down, under the authority of the Articles of Confederation, the Congress chose to send it to the legislatures of the several states as Madison proposed; so that the legislatures might form conventions of the people to vote it up or down. Thus, in political theory, the sovereign power of the people would trump the paper barrier presented by the “perpetuality” of the Articles of Confederation..
Articles of Confederation and Perpetual Union between the States
(Ratified by Unanimous Consent July 9, 1778)
“Whereas the Delegates of the United States of America in Congress assembled agree to certain articles of confederation and perpetual Union between the states to wit:
Article I. The style of this confederacy shall be “The United States of America.”
Article II. Each State retains its sovereignty, freedom and independence. . .
Article III. The said states enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and. . .bind themselves to assist each other against all force made upon them. . .
Article IV. . . . the free inhabitants of each of these states shall be entitled to all privileges and immunities of free citizens in the several states. . .
Article V. Each state shall maintain its own delegates to the Congress. . . In determining questions in the United States, in Congress assembled, each state shall have one vote.
. . . .
Article XIII. The Articles of Confederation shall be inviolably observed by every state, and the Union shall be perpetual; nor shall any alternation at any time hereafter be made in any of them; unless such alternation be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state. . . and we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determination of the united states in congress assembled, on all questions. . .and that the articles shall be inviolably observed by the states and that the union shall be perpetual.”
The Proposed Constitution
“Article VII. The ratification of the conventions of nine states, shall be sufficient for the establishment of this constitution between the states so ratifying the same.”
The government of the United States to be spontaneously reconstituted upon the vote of nine states: so much for the “inviolability” of words. Here is the explicit semantic seed of civil war and the implicit manifestation of the ultimate axiom of political science. Despite the solemn pledge, four times repeated, that the Union was to be “perpetual” as framed by the Articles, which required unanimous consent of the states to be changed, the states of the perpetual Union, not consenting, would suddenly be out into the cold.
It’s not surprisingly, then, that soon after the Constitution became the supreme law of the land, there emerged an irrepressible struggle between the two sections for political supremacy: one side pressing for the restriction of slavery, the other side pressing for its expansion. As the threat of war with the Great Powers faded, the North shrugged off its constitutional commitments about slavery and began sticking knives into the South. The South, too entwined with an alien population of Africans to get rid of it, was left with no rational choice, but to seize upon the example set by the founders and declare, by the sovereign power of its people, independence from the North.
When the Constitution became operative, in 1789, the United States was composed of six slave states: Virginia, Delaware, Maryland, North Carolina, South Carolina and Georgia; and seven essentially Free states—Massachusetts Bay, New Hampshire, Rhode Island and Providence Plantation, Connecticut, New York, New Jersey and Pennsylvania. Between 1789 and 1819, operating on the basis of equal division, the Congress admitted into the Union five Free states—Vermont, Ohio, Indiana, Illinois and Maine—and five Slave states: Kentucky, Tennessee, Louisiana, Mississippi and Alabama.
In 1804, the United States through a treaty with France received possession of the territory of the Spanish Empire, extending from the charter limits of Virginia, the Carolinas, and Georgia, and ending at the line of the Sabine River in Arkansas. In 1819, under a treaty with Spain, the U.S. acquired the territory of Florida.
The acquisition of this new territory put considerable political stress on the principle of division that was inherent in the compact shaped by the Constitution. In 1818, the free inhabitants of that part of the Louisiana Territory known as Missouri established a provisional government and petitioned Congress for admission into the Union as a state.
The Missouri Compromise
In the House of Representatives, Tallmadge of New York moved that Missouri be admitted upon condition that all children of slaves born after the date of admission be deemed free when they reached the age of twenty-five, and that the introduction of slaves into the state after its admission be prohibited. Tallmadge’s amendment passed the House, but was stricken by the Senate, sending the bill back to the House. The House refused to pass the bill without the amendment.
When the debate continued into the session of 1819, Henry Clay, then a member of the House, urged the admission of Missouri without the amendment, on the ground that, under Article 4, Section 4 of the Constitution, which provides that “The United States shall guarantee to every State a Republican form of government,” Missouri was entitled to decide for itself whether its laws should recognize a right of property in persons. On this basis, the House again passed the admissions bill and sent it to the Senate.
In the Senate, the argument arose that, under its power to “make all needful rules and regulations for the Territory of the United States,” (Article 4. Section 3) Congress had authority to prohibit slavery, and the prohibition should be imposed for all territory above Missouri’s southern border—the so-called 36-30 line.
In June, 1820, as the debate over admission continued in Congress, Missouri ratified a constitution that contained a provision excluding free Negroes from residence. A majority of congressmen then voted against admission, on the ground that free Negroes were citizens of the states in which they resided and, hence, citizens of the United States, entitled to all the privileges and immunities of same, which included the right to travel anywhere in the United States.
The outcome of the debate in the Senate was the passage of a resolution accepting Missouri into the Union, under the constitution prohibiting the residence of free Negroes, but with the condition that slavery would henceforth be prohibited in the remaining territory above the 36-30 line. After more furious debate in the House, the bill of admission passed the Congress, with the proviso that Missouri promise not to enforce its “no free Negroes” provision. Missouri agreed to this and thus became a state.
Under the 36-30 rule, between 1820 and 1837, the Free states of Maine and Michigan, and the Slave states of Missouri, Arkansas, and Florida, were admitted into the Union.
In 1845, the Republic of Texas was admitted into the Union. There the matter in dispute rested until the war with Mexico, in 1846-47, added the Spanish Crown’s old Southwestern lands west of the Sabine River to the Territory of the United States. After this war, two Free states were admitted: Iowa and Wisconsin. The Free and Slave states were now evenly balanced at fifteen a piece.
In August 1848, a bill for organizing the Oregon territory into a state was introduced in the House of Representatives. Now began the political struggle in earnest, which led directly to the collapse of the Whig party and the emergence of the Republican Party, the election of Abraham Lincoln and the descent of the people of the United States into civil war.
Consistent with the principle of the 36-30 rule, the Oregon Admission Bill was passed by the House with a general slavery restriction in it and sent to the Senate. In the Senate, Illinois Senator Stephen Douglas moved to strike the restriction and insert in its place the provision that the 36-30 line be extended to the Pacific Ocean. The Senate adopted the amendment and the bill returned to the House. Quickly, a majority of representatives voted to reject the bill, for it was plain to see that, if the 36-30 was so extended, the territories of Southern California, Nevada, Utah, Arizona, and New Mexico, forcibly taken from Mexico in 1847, would be open to the introduction of slavery.
With the weight of congressional representation by now firmly grounded in the general population of the Free states, the political fact was plain that the votes of the Free states controlled the balance of power in Congress and they would use that power to prevent the admission of new slave states. Even so, in the Senate, the votes showed that some senators were more interested in the economic profits flowing from the admission of states than in preventing the introduction of slavery.
In the Senate, at the beginning of the Oregon debate, it appeared that sixteen states were in favor of extending the 36-30 line. Two of these states were Pennsylvania and Indiana. Nine states, all Northern, were against it, and three states—New York, Michigan, and Illinois, were divided. On the final vote, the vote was 14 Free states to remove the Douglas amendment and 13 Slave states to keep it. Missouri’s vote was divided, Senator Thomas H. Benton voting with the Free states. The senators from Iowa and Florida did not vote. In the House of Representatives seventy-eight of the eighty-eight votes for the amendment were from Slave states and four from Free states. 121 votes were cast against it: only one of these votes was cast by a representative of a Slave state.
When the Congress convened in 1849, there was great excitement throughout the land. The congressional votes over the Oregon Bill had shown that the Free states were no longer willing to honor the principle of equal division which had originally underpinned the consensus of the Philadelphia Convention. As a consequence of this changing attitude, the Whig Party would disintegrate, the Republican Party would be born, and the Democratic Party would split into conservative and radical factions, with the radicals eventually coalescing with the new Republicans.
In the summer of 1849, President Taylor manipulated events in California which resulted in a setting up of a convention, the framing of a constitution, and a petition arriving at Congress seeking admission as a state.
In January 1850, the Democrats controlled the Senate but the House was deadlocked: 111 Democrats, 105 Whigs, and 13 Freesoilers.
Henry Clay now appeared in the Senate as senator from Kentucky. When he took his seat in the tiny Senate chamber, John C. Calhoun and Daniel Webster —both old men now—were still there. Among the younger men there was Stephen Douglas, now the recognized leader of the Democratic Party, Jefferson Davis of Mississippi, Salmon Chase of Ohio, the founder of the Republican Party, William Seward of New York. And Fillmore, as Vice President, occupied the chair.
When the 1850 session opened, Thomas H. Benton of Missouri introduced a bill to reduce the size of Texas. Other senators introduced bills to spilt Texas into more than one state. Still others proposed territorial governments for California, New Mexico, and Utah.
Now began an intensity of rhetoric that rose and rose in shrill noise and anger until the collapse of the Union in 1860. It began with Henry Clay gaining the Senate floor and, holding it for two days, arguing for a series of resolutions. Clay proposed that the matter of Texas be postponed, that California be admitted, that the territorial governments for Utah and New Mexico be organized without the slavery restriction, and that the domestic slave trade existing in the District of Columbia be abolished.
At this time, Douglas was chairman of the Committee on Territories in the Senate and McClernand was chairman of the committee in the House. Alexander Stephens and Robert Toombs of Georgia controlled the Southern Whigs in the House and they persuaded Douglas to compromise between the two sides: in exchange for the admission of California as a Free state, additional states to be formed from the remaining territory could determine for themselves whether to recognize or reject slavery.
No doubt motivated by his political ambitions, Douglas agreed to Stephens's plan and both Douglas and McClernand introduced bills in their respective chambers to that effect. At the same time, President Taylor sent California's petition for admission to the Congress for ratification.
Compromise of 1850
At the time these issues came to a head, in March of 1850, the senators were at their seats, with the galleries and privileged seats and places on the floor filled with ladies, officers of the government and members of the House and other visitors. Everyone present knew that when California came in the Union a Free state, the principle of equal division of territory between the Free and Slave states would be lost forever, and the balance of power in favor of the Free states, as it had in the House, would shift in the Senate.
In the course of the session, Seward of New York and Davis of Mississippi, friends outside the Senate, stood behind their wooden desks, gesticulating and hurling invectives at each other. Davis proclaimed that the Slave states would never take less that the 36/30 line extended to the Pacific with the right to hold slaves in California below the line.
Benton of Missouri cut in before Seward could respond, to say no earthly power existed which could compel the majority to vote for slavery in California. In the flaring of temper, Foote was seen to draw a pistol from his coat and point it at Benton, when, suddenly, the appearance of the gaunt form of John C. Calhoun hushed the clamoring throng.
Calhoun leaned heavily on his cane as he slowly swayed down the center aisle of the chamber. The contending senators stepped aside into the rows of desks to make way for him to pass. Calhoun's face was deeply tanned, but his cheeks were sunken and his body seemed swallowed in the great cloak he wore.
Clay, Webster, Davis, Douglas and others crowded around him, escorting him to his place among the desk rows. When he reached his old seat, Calhoun gathered the folds of his long cloak in his hands and feebly sat down in his chair. There was a general scurrying among the people in the chamber as they found their places and Vice President Fillmore recognized the senior senator from South Carolina.
Calhoun rose slowly to his full height to say in anticlimax that Mason from Virginia would read his speech, and he sat back down.
In a matter of days Calhoun would be dead. Calhoun's speech was cold and blunt. He had no illusions about the nature of the Union. He knew that the incredible acquisition by the United States of territory, which stretched from Oregon to the Gulf of Mexico, would cause the unraveling of the ropes that held the country together.
How to preserve the Union? Not by Clay's plan, Calhoun contended, for it ignored the root of the issue: the Union could not be preserved by admitting California as a Free state. It could only be done by the North conceding to the South an equal right to the acquired territory, to enforce the fugitive slave provision in the Constitution, stop the antislavery agitation in the halls of Congress, in the pulpits and the press, and amend the Constitution to expressly recognize the right of property in man.
Interrupting Mason’s reading of his speech, Calhoun raised himself from his seat and asked his supporters to show their hands. Hands tentatively appeared one by one above the heads of some of the spectators in the galleries and the senators on the floor. As Calhoun scanned the faces of his fellow senators, Mason continued with the speech, saying that, if the North would not do these things, the States should part in peace. And, if the Free states were unwilling to let the South go in peace, "Tell us so,” Calhoun said, “and we shall know what to do when you reduce the question to submission or resistance."
At this statement, the chamber became quiet as a church. Daniel Webster leaned forward in his chair, staring gloomily into space; Thomas Benton on the back bench sat rigid like a slab of granite; Henry Clay sat with his hands shielding his face. In the minds of each of the politicians came a quick black image of cities in smoking ruins. And everywhere in the little chamber was felt the veiled touch of dreadful black ghosts wandering.
On March 7th, 1850, Daniel Webster took the Senate floor and responded to Calhoun's speech, his piercing black eyes flashing. Webster was dressed in tight vanilla breeches, with a blue cloth coat cut squarely at the waist, and adorned with brass buttons, his neck encased in a high soft collar surrounded by black stock.
Webster flatly rejected the idea of separation of the States as a physical impossibility. It is impossible, he said, for the simple reason that the Mississippi cannot be cut in two, the North to control its headwaters and the South its mouth. How could the North's commerce flow uninterrupted from the Ohio and Mississippi valleys to the Caribbean? What would become of the border states as they are pulled north and south? What would become of commerce between the West and the East?
Then the Senator from Massachusetts suggested to the Senate the one politically honest solution which might have redeemed the tyranny of the people of the Free states, in bottling up the African Negroes in the old states of the South.
Return to Virginia, Webster proposed, and through her to the whole South, the two hundred millions of dollars the National government obtained from the sale of the old Northwest Territory she ceded to the United States—in exchange for the abolition of slavery in the South.
Here was a solution to the problem of maintaining the South’s economic integrity—a solution which recognized that the existence of slavery was a national, not sectional, responsibility; a solution which shared the burden the abolition of slavery entailed. But to adopt it, there must have been included the recognition that the Africans were now “citizens of the United States,” with all the privileges and immunities that term entails—the right to travel, the right to litigate in the courts, and the right to vote. This the Northern senators were not then prepared to allow. It would mean living with the Africans on a basis of equality.
Once freed, where were the Africans to go? How were they to earn their living? What was to be their new place in society? Where? And what was to be the conditions of the society in which they might find their place?
The then existing social caste of the African was founded in a deep-rooted prejudice in Northern public opinion as well as the South. Before the Revolution, it was not southern planters who brought the Africans in chains to America's shore. It was New England vessels, owned by New England businessmen, manned by New England citizens, which traversed the Atlantic Ocean a thousand times to bring black cargo wailing into the ports of Norfolk, Charleston and Savannah. In 1850, the laws of many of the Free states did not recognize free Africans as citizens. They could own certain property and they were required to pay taxes but they could neither vote nor serve on juries, and their children were forced to attend segregated public schools.
Just the year before, for example, in 1849, a little five year old colored girl, Sara Roberts, had sued the Boston School District, seeking the right to attend the school closest to her home, instead of the colored school way across town. Though colored children, the Supreme Court ruled, have a right to public education, the right was limited to a separate education. (See Roberts v. Boston (1849) 59 Mass. 198) New England had no slaves, it is true, but still a majority of its citizens didn’t want to live with Negroes.
Thus, even if the Government of the United States could have found the means somehow, to compensate the slaveowners for the taking of their property—Alexander Stephens thought compensation was worth two billion—and though the former slaves might live peacefully with their former owners, it could not be done on the basis of equality under law, and certainly not on the basis of citizenship. Emancipation would bring the Africans the freedom to perform work for some form of wages, but for a long time to come, in the eyes of most whites in the North as well as South, they would be a degraded and despised people not fit to socialize with.
Distribution of Slave Population in 1860
The Death of John C. Calhoun
John C. Calhoun died on March 31, 1850. The funeral ceremonies were conducted in the Senate chamber. President Taylor, Vice-president Fillmore, and Cobb, the Speaker of the House, attended with the members of the Supreme Court. The diplomatic corps was also present, standing with the other dignitaries in the well in front of the screaming eagle perched above the Senate President's chair. Daniel Webster and Henry Clay walked at the head of the simple metal casket as the pallbearers brought it down the center aisle past the rest of the senators standing by their desks.
The senators and dignitaries closed in around the pallbearers as they set Calhoun's casket down. In his eulogy, Webster said there was nothing mean or low about the man who had spent his life in the service of the National government, first as senator, then secretary of state, then vice president and finally as senator again. In fulfilling his public duties, Webster said, Calhoun was perfectly patriotic and honest.
. When the ceremony ended, the casket of South Carolina's greatest son was transported by caisson through the streets of Washington to the Navy landing and taken by vessel down the Chesapeake, past the Capes into the ocean and then to Charleston harbor where it was brought ashore and laid to rest in the quiet little churchyard of St. Phillips Church. Today, a hard-faced statute of Calhoun stands in a small, bare park in Charleston through which African Americans daily stroll.
Thomas Hart Benton was the next oldest member of the Senate behind Webster. He had spent thirty years in the Senate, voting always against measures which favored the slave interest. To convey his disdain for Calhoun's political views, Benton had turned his back as Webster spoke. Benton thought Calhoun's ideas were treason.
Benton was wrong about Calhoun. In Calhoun's view, allegiance to the sovereign meant faithful service to one's native state, the minority social group of which each American citizen was then a constituent member, and not faithful service to the Federal government.
The constitutional function of the federal government, Calhoun thought, was to administer the external affairs of the aggregate of the group. His view was consistent with the view of the Old states, whose political leaders designed the original Union. The delegates to the Constitutional Convention which framed the constitution, in 1787, were elected by the state legislatures. But the instrument, when it came from their hands, was nothing but a mere proposal. It carried no obligation. The people of each state acted upon it by assembling through their delegates in separate conventions held in each state. Thus, the government of the United States ultimately derives its whole authority from these state conventions. Sovereignty, whether the Federal Government likes it or nor, resides in the people.
By accepting the stipulation that the assent of the people of merely nine states was sufficient to make the constitution operative, the delegates to the Constitutional Convention and the delegates to the United States Congress expressly adopted the political principle that the people of the states, in a combination which amounted to less than the whole people of the United States, were naturally free to leave the "perpetual union" of the United States and among themselves, "form a more perfect union."
The only constraint on the power of the people of the seceding states to disengage from the perpetual union defined by the Articles of Confederation was the power of the people of the States remaining loyal to the original Union to resist disengagement. The nation styled the United States of America, therefore, was certainly not one Nation indivisible, with liberty and justice for all: it was a combination of divergent political societies, motivated by self-interest to unite together against the world.
When the people of the Old states first formed a Union between themselves under the Articles of Confederation, Virginia held title from the English crown to the territory north and west of the Ohio River extending to the Mississippi valley and the Great Lakes. Virginia could have remained aloof from the original Union and adopted the policy of concentrating a population sympathetic to its culture in the area of what is now Ohio and Michigan. Such a policy would have blocked New England from expanding the influence of its culture westward.
In such circumstance, if New England did not attempt by force of arms to wrest the Northwest Territory away from Virginia, Virginia and its allies might eventually have gained possession of all the territory between the Mississippi and the Pacific. Just look at the map!
Virginia certainly possessed the men, materiel and the allies necessary to enforce a policy of unilateral expansion into the western territories. Instead, Virginia not only joined the original Union but assented to the adoption of a more perfect union transferring in the process title to its Northwest Territory to the United States—with the stipulation that slavery be prohibited there. Truly Virginia, the mother of states, stands at the head of the first flight.
Virginia's voluntary transfer to the United States of its title to the Northwest Territory radically changed the strategic situation for New England. Instead of being bottled up on the northeast seaboard of the continent, the people of New England could peaceably migrate west and north of the river Ohio and take their culture with them. It can hardly be imagined, under such circumstance, that New England could have reasonably believed that Virginia and her allies would not likewise expect to migrate with their culture west and south of the river.
The principle of division of the Territory of the United States between two fundamentally divergent forms of Republican government, therefore, must have been understood by the whole people of the United States to be the bedrock upon which the political stability of the Union depended. If the representatives in Congress of a majority of the people of the United States were to discard it, without reference to the powers granted them by the Constitution, they could expect the people of the affected States to judge for themselves whether the usurpation justified their secession.
After Calhoun's death, the Congress returned to the debate regarding the admission of California in the Union as a Free State. As a consequence of the debate that had been waged between Webster, Clay, Benton and Davis, in the early months of the 1850 Senate session, the bills and amendments the senators had suggested were sent to a joint committee on the territories.
The Southern Whigs, led by Alexander Stephens and Robert Toombs, who were in the House at that time, wanted the Congress to agree that, in organizing all other territorial governments formed from the newly acquired Spanish territories, the settlers should be left alone to introduce slaves or not, and to frame their constitution as they might please. Stephen Douglas, as chairman of the committee on territories in the Senate, agreed with the Southern Whigs' plan and introduced a bill in the Senate in March 1850. Then Henry Clay was made chairman of a committee to review the series of resolutions he had offered on the Senate floor.
On May 8, 1850, Clay reported an "omnibus" bill which provided for restrictions on the introduction of slavery into the New Mexico territory. Jefferson Davis countered with an amendment which would allow slavery in Utah and Douglas moved to strike previous amendments to his bill. In the House, the majority rejected several amendments which would have allowed slavery to exist in the western territories.
In the Senate, in June 1850, Webster spoke in favor of Douglas's latest proposed amendment, which would leave the territorial governments free to decide the slavery issue for themselves. This meant that all territorial governments formed after the admission of California in the Union would not be subject to a slavery restriction.
At this point in the debate, President Taylor died, Fillmore became president and Webster left the Senate to join the Cabinet. After these events, in August 1850, with the admission of California and the organization of the territories of Utah and New Mexico, the Congress adopted the policy of leaving the issue of slavery to the territorial legislature to decide. At this, a country lawyer in Illinois, Abraham Lincoln, perked up.
In December 1852, a bill was introduced in the House to organize Nebraska territory. This territory was part of the territory obtained by France from Spain and ceded to the United States, in 1804. The bill passed and went to the Senate, in March 1853, but was voted down. The bill as it passed the House provided for the organization of a territory bounded by the 45th parallel on the north, Missouri and Iowa on the east, in the south by the 36th parallel and on the west by the Rocky Mountains.
The issue of organizing the Nebraska territory had come up in the Senate before 1853, but the Slave states rejected the organization bills because they did not want to open the territory to settlement under the restriction imposed by the Missouri Compromise. In addition, by keeping settlers out of Nebraska, the proposed transcontinental railroad could not be built from either Chicago or St. Louis, leaving open the possibility that the railroad would pass through Texas
Later, in December 1853, Dodge of Iowa introduced an organization bill for Nebraska. This bill was referred to the Committee on the Territories which was chaired by Stephen A. Douglas. In January 1854, Douglas reported favorably on Dodge's bill, but an amendment was attached to the bill which declared that, in accordance with the principles adopted in 1850, all questions relating to slavery should be left to the decision of the people who occupied the territory.
When southern senators indicated that they would introduce an amendment expressly repealing the Missouri Compromise, Douglas withdrew the Committee's report and presented it again with two amendments: one provided for two territories to be named Nebraska and Kansas and the other asserted that the Missouri Compromise had been superseded by the Compromise of 1850.
On March 3, 1854, the Senate passed Dodge's bill as reported by Douglas by a vote of 37 to 14. Slave state senators voted 23 in favor. Free state senators voted 14 to 12 in favor. The vote made plain that the Free state senators cared more about opening the Indian territory for construction of a railroad to the Pacific than they did about restricting slavery.
The House, with the general population of the Nation having shifted in favor of the restriction of slavery, experienced a bitter fight over the issue of the express repeal of the Missouri Compromise. On May 22, 1854, the Dodge bill passed the House by a vote of 113 to 100. As soon as the bill became law, the people of the border states began agitating for the opening of the Indian territory south of Kansas and west of Arkansas in order to open trade routes to Texas, New Mexico and California.
Meanwhile, Charles Sumner, freshman senator from Massachusetts, joined by Salmon Chase of Ohio, published a paper, which appealed to disaffected Whigs and Democrats to oppose the "monstrous plot" of the slave power to spread slavery further into the territories.
When Douglas introduced the revised bill for debate in the Senate, he had charged that Sumner and Chase were confederates in a conspiracy to force the abolition of slavery. The two senators, Douglas had bellowed, were the agents of "Niggerism in the Congress of the United States." Interrupting Douglas, Sumner snapped back that the policy behind the effort to repeal the Missouri Compromise, which the amended bill expressly codified, was a "soulless, eyeless monster—horrid, unshapen and vast."
For a month, Douglas, Butler, Mason and Sumner and Chase wrangled over the issue. Douglas saw the opponents to the bill as strutting down the path of abolition, "in Indian file, each treading close upon the heels of the other" avoiding ground "which did not bear the foot-print of the Abolition champion." Deep into the debate, Sumner finally gained the floor and declared that the slave power was reneging on a solemn covenant of peace after the free power had performed its side of the bargain; that it was destroying, with Douglas's revised bill, a "Landmark of Freedom." Immediately when Sumner finished his speech and sat down, Douglas took the floor and challenged Sumner's assertion that the Missouri Compromise was sacred. If one congressional act touching slavery was to be considered sacred, why not another like the Fugitive Slave Act which increasingly the Free States were repudiating. When the vituperative debate between the two antagonists finally ended, in May 1854, the bill easily passed the Senate. In the House, the debate lasted two weeks, the bill passing by a 13 vote majority. The repeal of the Missouri Compromise was history. The power of patronage proved greater than the power of principle.
Immediately after the passage of the Kansas-Nebraska organization bill, a petition signed by 3,000 Massachusetts citizens asking for the repeal of the 1850 Fugitive Slave Law was received in the Senate. Since 1850, every Free State had experienced great excitement over a "fugitive slave case." In Racine, Wisconsin, for instance, in March 1854, an African named Joshua Glover was arrested on a warrant issued by a United States District Court judge under the Fugitive Slave Law. Glover was accused of being a runaway slave from Missouri. Two United States marshals, with four other men, broke into Glover's house, arrested Glover and transported him to Milwaukee where he was placed in jail. The next morning, news of Glover's arrest by the marshals spread across Wisconsin. Soon a mob gathered in front of the jail. As the crowd in the courthouse square increased to five thousand, speakers denounced Glover's arrest and demanded the repeal of the slave catching law. Soon the temper of the mob became volatile and men gathered in a knot in front of the jailhouse door and battered it down, freeing Glover who the crowd then lifted bodily over their heads and carried away through the streets, shouting, "No slave hunters in Wisconsin," Glover escaped across Lake Michigan to Canada in a schooner.
In Boston, the very day that Charles Sumner rose in the Senate to speak in support of the Massachusetts petition to repeal the Fugitive Slave law, Faneuil Hall was filled with citizens protesting the arrest by United States marshals of an African named Anthony Burns. Speakers soon incited the crowd to action and the citizens streamed out of Faneuil Hall and through the streets and attempted to storm the courthouse where Burns was being held. In the melee that followed one of the police officers guarding Burns was killed. President Pierce immediately ordered Federal troops to Boston and they took Burns into their custody and returned him to his master in Virginia.
In his speech, in support of the Massachusetts petition, Sumner told the Senate that the repeal of the Missouri Compromise annulled all past compromises with the slave power and made future compromise impossible. No more would the Free States tolerate the "disgusting rites" by which the slave hunters sent their dogs, with savage jaws, howling into Massachusetts after men escaping from bondage, Sumner said.
In the course of the uproar that followed Sumner's vehement words, Senator Butler of South Carolina gained the floor and demanded that the Free State senators say whether South Carolina could expect the return of runaway slaves if the Fugitive Slave Law was repealed.
Charles Sumner sat in the desk row in front of Butler's and when Butler spoke, Sumner jerked his chair back from his desk and stood up and faced him. Speaking over Butler's head to the spectators crowded together behind him in the vestibule space and the public gallery at the back of the senate chamber, Sumner shouted out,"
Is thy servant a dog, that he should do this thing?"
Butler's face flushed and he stumbled slightly as he took a step backward.
"Dogs? Dogs?," Butler cried.
Behind Butler, Mason of Virginia leaped to his feet and, stabbing his index finger toward the domed ceiling of the Senate chamber, he hissed at Sumner, "Black Republican, you dare to tell us there are dogs in the Constitution." Other senators shouted out that Sumner should be expelled for dishonoring his solemn oath to support the Constitution which provided that a "person held to service" in a Slave State escaping to a Free State "shall be delivered up" on demand of his master.
As the verbal storm swirled around him, Sumner braced himself against his chair. He stood tight-fisted and scanned the hot, red faces around him with black burning eyes.
"How many are there here," he shouted, "who will stoop with Butler and Mason to be a slave hunter? Who is here who will hunt the bondmen down, flying from Carolina's hateful hell? "
Calls of "censure, Censure," rang out from senators seated on both sides of the aisle, but no one directly answered Sumner's challenge. Sweeping his arm in an arch around the Senate chamber, Sumner continued,
"No Sir. No Sir, I do not believe there are any dogs, however keen their scent or savage their jaws, that can bind me to return your fugitive slaves."
Senator Cass of Michigan rose to remonstrate with Sumner, labeling his outburst "the most un-American and un-patriotic that ever grated on the ears." Douglas of Illinois joined Cass to charge Sumner with uttering obscenities which should be suppressed as "unfit for decent young men to read." Mason chimed in with the rebuke that Sumner's language reeked of "vice in its most odious form."
In rebuttal, Sumner attacked Douglas directly, saying, "No person with the upright form of man can be allowed—" Sumner's voice broke off.
Douglas leaped back to his feet in a rage. "Say it," Douglas shouted.
"I will say it," Sumner retorted; "No person with the upright form of man can be allowed, without violation of all decency, to switch out from his tongue the perpetual stench of offensive personality. . . The nameless animal to which I now refer, is not the proper model for an American senator. Will the Senator from Illinois take notice?"
"I will not imitate you," Douglas shouted back.
Sumner would not stop. "Again the Senator has switched his tongue, and again he fills the Senate with its offensive odor."
When the newspapers reported Sumner's harangue, the public response from the North was highly favorable toward Sumner. The residents of Washington, generally pro-slavery in sympathy, discussed his speech on the street corners, expressing the view that somebody ought to kick the Massachusetts senator down a flight of stairs.
During the next two years, the issue of the settlement of Kansas and the recognition of a territorial government constantly occupied the attention of the Congress. The radical Democrats and Whigs, now transformed into new Republicans, actively supported the migration of people from the Free States to Kansas territory while the slave power in the Democratic Party supported the immigration of Southerners. The Pierce administration appointed a Southerner to act as Territorial Governor and he quickly held elections for a territorial legislature. Since Southern immigrants outnumbered their Northern counterparts early in the process of settling Kansas, the slave power won a majority of the seats in the legislature, which was seated at the town of LeCompton, and it promptly adopted the civil law of Missouri. As time passed, however, settlers from the Free States began to arrive in substantial number and established towns in the northwestern part of the territory. Then they met in convention and organized a shadow legislature seated at Topeka and it adopted a constitution which prohibited any Africans, whether free or slave, from residing in Kansas. In January 1856, President Pierce issued a proclamation which recognized LeCompton as the legitimate legislature and ordered the shadow legislature at Topeka to disband. When the members of the Topeka legislature refused, supporters of the LeCompton legislature sacked the free soil stronghold of Lawrence, Kansas. In retaliation, John Brown and his five sons appeared on the scene and began killing slave-holding settlers in the countryside.
As these events were debated on the floor of the Senate, Sumner continued to bitterly attack his opponents on a personal level, always returning in his arguments to Senator Butler of South Carolina and Senator Mason of Virginia, and rebuking them for swinging the "overseer's lash" in the Senate, as if it were one of their plantations stocked with slaves. During these debates various senators made motions to expel the Massachusetts senator for perjury and treason, but the motions never came to a vote.
Senator Charles Sumner Attacked
Finally, in May 1856, Sumner spoke for three hours, calling the concept of popular sovereignty a "crime against Kansas" by which the people of the Free states were swindled into accepting the repeal of the Missouri Compromise.
Several days after Sumner's "crime against Kansas" speech, Preston Brooks, a young congressman from South Carolina, came into the vestibule of the Senate chamber, carrying a walking stick. The cane had a gold head and tapered from the head down to the end with a weight of about a pound. At 12:45 p.m. the Senate recessed and most of the senators cleared the chamber except for a scattered few. Brooks came down the center aisle and sat down at a desk several seats removed from Sumner who was reading from a pile of documents at his desk. When all the spectators had exited the gallery above the Senate floor, Brooks got up from the desk, came down the aisle, to a position in front of Sumner. When Sumner looked up at Brooks's call of his name, Brooks began furiously whacking at his head with the cane. Sumner tried to rise, but got caught up in his chair. Finally breaking free, Sumner staggered sideways and fell between the desk rows, while Brooks frantically whipped the cane back and forth across his face and shoulders.
Only when the cane splintered into pieces too small for Brooks to handle, did the assault end. When Brooks backed away, Sumner laid motionless on the crimson carpet of the Senate floor. Globs of dark red blood oozed from the cuts and gashes of his face and formed a pool around his head. Slowly, Sumner rolled over on his hands and knees and struggled to rise. Stephen Douglas came into the chamber from the cloakrooms where he had been standing behind the Senate president's chair, but did not approach Sumner. Robert Toombs of Georgia and John Crittenden of Kentucky also appeared in the room but they did not offer Sumner help. By the time Sumner's few friends arrived, Sumner was alone, slumped in his chair, the blood still seeping from his head wounds down his neck, saturating the blue broadcloth coat he wore. The wounds Brooks inflicted on Sumner did not cause permanent physical damage, but they destroyed Sumner's will. Once taken from the Senate chamber, the abolition champion soon left America and traveled through Europe for two years, only returning to his Senate seat in 1859.
The Dred Scott Decision
The breakdown in political civility in the Senate was made permanent in December 1856, when the United States Supreme Court announced its decision in the matter of Dred Scott. Eight years earlier, in 1848, Dred Scott's wife, Harriet, was sued in Missouri state court by a Mr. Emmerson. Emmerson alleged that he had purchased Dred and Harriet from an army officer who had taken the Scotts as slaves from Missouri to army posts in the Free State of Illinois and the Territory of Minnesota, and then returned with them to Missouri. Emmerson's action was tried to a jury who gave verdict for Harriet, but the trial court granted Emmerson a new trial. Harriet appealed from the order granting new trial but lost in the Missouri Supreme Court. Dred Scott then instituted suit against Emmerson in St. Louis Circuit Court. Scott contended that the fact that he and Harriet had been taken voluntarily into Illinois and Minnesota Territory made them free under both Illinois law and the Missouri Compromise. The circuit court agreed with Scott and Emmerson appealed to the Missouri Supreme Court.
The Missouri Supreme Court acknowledged that, as a matter of comity between the courts of the Free and Slave States, many times in the past persons held to service had been adjudged to be free by the courts of the Slave States on the ground that the master had forfeited his chattel interest in such persons because they had been wrongfully held to service in territories or States where slavery was deemed unlawful. Similarly, prior to 1850 at least, many decisions of the Free State courts had held that, in a spirit of comity and in light of the Fugitive Slave Clause in the U.S. Constitution, slaves escaping from a Slave State to a Free State must be returned to the Slave State.
But the laws of other states, the Missouri Supreme Court held, "have no intrinsic right to be enforced beyond the limits of the State for which they were enacted." Since 1850, the Supreme Court observed, the courts of the Free State had repeatedly refused to recognize the legitimacy of the Fugitive Slave Law enacted by Congress as the controlling law of the land. Indeed, the Free State courts by 1856 persistently refused to punish persons who were known to attack federal marshals holding runaway slaves in custody. This conduct on the part of the citizens and courts of the Free states, the Missouri Supreme Court held, justified enforcing the public policy of Missouri which recognized the right of property in persons held to service as paramount.
After the Scotts lost a second time in the Missouri state courts, Emerson sold Dred Scott to John Sanford, a citizen of New York. Scott, alleging that he was a citizen of Missouri, then sued Sanford for his freedom in the Federal District Court in Missouri. Scott based his suit for freedom on the ground that, since the Missouri Compromise had prohibited slavery in that part of the Louisiana territory at the time he had been taken there, he was now free. Sanford opposed the suit on the ground that the federal court lacked jurisdiction because Scott, as an African whose ancestors were brought to America as slaves, could not be a citizen of Missouri. The district court rejected Sanford's argument regarding Scott's lack of standing, but granted judgment for Sanford against Scott's claim that his being taken to Minnesota made him free.
Scott appealed the decision to the United States Supreme Court. Led by Chief Justice Roger Taney, a majority of the Supreme Court, all southerners, refused to recognize that Scott was a citizen of the United States within the meaning of the Constitution and, therefore, the justices held, he could not sue John Sanford in federal court.
Although a free African residing in a state may be recognized by the people of that state to be, like them, a citizen, Taney wrote, he cannot be a citizen of a state, "in the sense in which the word `citizen' is used in the Constitution of the United States." Taney argued that the word "citizen" as used in the constitution is synonymous with the words "people of the United States" which describes the sovereign, the source of the supreme law. In Taney's peculiar view, Dred Scott could not possibly be included as a part of the people of the United States, in 1856, because at the time the people established the constitution as the supreme law of the land, in 1789, Scott's ancestors were considered "beings of an inferior order. . . [so] that they had no rights which the white man was bound to respect." Therefore, Taney concluded, Scott was an alien who lacked the rights, privileges and immunities guaranteed citizens of the United States, one of which was the privilege of bringing suits in its courts.
Chief Justice Taney wasn't satisfied, however, with resolving the matter of Dred Scott by narrowly interpreting the meaning of "citizen of the United States." The Chief Justice and his associates had been in secret communication with James Buchanan who had been elected President in November, 1856. Taney promised Buchanan that the Court would use Dred Scott's case to rule on the issue of whether Congress had the power to make unlawful, white persons forcibly holding black persons to service in the territories of the United States.
In 1820, the Congress had based the enactment of the Missouri Compromise on the express power granted it by the Constitution, "to make all needful rules and regulations respecting the Territory or other property belonging to the United States." Taney, with an apparent majority of the Supreme Court supporting him, rejected the reasonable notion that the Territory clause authorized Congress to enact laws which prohibited citizens of the United States from holding Africans to service in the territories of the United States. The Framers intended the express grant of power to make rules and regulations for the administration of the territories, Taney asserted, to apply only to that particular territory, which, at the time of the Constitution's ratification in 1789, was claimed by the United States. The power to regulate the affairs of new territories acquired after 1789, Taney maintained, springed solely from the express grants of power to make war and treaties, which implied the power to acquire territory.
In the exercise of the latter powers, Taney argued, Congress could make rules and regulations for the new territories acquired by the United States only in a manner which promoted "the interests of the whole people of the United States" on whose behalf the territory was acquired. As the agent of the whole people of the United States, Taney wrote, it was the duty of the general government, in organizing the territories for settlement, to not enact laws which infringed upon the "rights of property of the citizen who might go there to reside." Thus, despite the fact that the laws Congress enacts constitute the supreme law of the land, "anything in the. . . laws of any State to the contrary notwithstanding," in the strange logic of Taney's mind, Congress was powerless to prohibit a person from taking to the territories, a person held to service under only the common law of a Slave state.
Before the whole people made the Constitution the supreme law of the land, in 1789, the sole basis for recognizing a white person's right to hold a black person as property was the common law of the state in which the white person resided. Yet, as the Missouri Supreme Court explained in 1848, with Dred Scott's state court suit for freedom, the state courts had always understood that their respective common laws had "no intrinsic right to be enforced beyond the limits of the State for which they were enacted."
It is true that the whole people did recognize as the supreme law the duty of the general government to deliver up a black person escaping from a Slave State, if the right to hold the black person as property in the state was shown; but the whole people did not write anything in their Constitution that said their general government must recognize the right of white persons to hold black persons as property anywhere else. Chief Justice Taney and his associates could have easily decided, therefore, that, since the general government held the territories in trust to advance the interests of the whole people, it was reasonable for the citizen of a Slave State emigrating to the territories to expect to enjoy the right of property in pigs, cows and horses because the whole people recognized such rights; but it would be unreasonable for the same citizen to expect to enjoy the right of property in man which the whole people did not recognize.
All of the great moments in the Nation's political struggle over slavery—the Missouri Compromise, the Compromise of 1850, the emergence of the doctrine of popular sovereignty, the disintegration of the Democratic and Whig parties, the rise of the Black Republicans and the Dred Scott decision—were certainly nails in the coffin of domestic slavery, but it remained for the nation to produce Abraham Lincoln and place him in command of the executive branch of government, to undo the Union as it was, under the constitution framed by the founders, and to replace it with the constitution we live by today.
The founders used the constitution as the means to control the power of democracy, in order to protect the minority from the tyranny of the majority. If the power of the democracy attempts to usurp the supreme law, twist it into something it is not, whatever the moral ground it claims, the retribution it faces is civil war. At its barest root the American Civil War was about the human impulse not to submit willingly to the power of the majority to oppress. This is the irony of the war; the oppressor becoming the oppressed: It is this sacred heritage--the power of the people to change their government--that both black and white Americans can share; and General Lee's great battleflag, though sorely used in latter times, is the most poignant example of it.
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Joe Ryan is a Los Angeles trial lawyer who has traveled the route of the Army of Northern Virginia, from Richmond to Gettysburg several times.
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