Abe and John

I spotted this interesting 19th Century photo alteration here. The caption reads:

Circa 1860: This nearly iconic portrait of U.S. President Abraham Lincoln is a composite of Lincoln's head and the Southern politician John Calhoun's body. Putting the date of this image into context, note that the first permanent photographic image was created in 1826 and the Eastman Dry Plate Company (later to become Eastman Kodak) was created in 1881.

The Texas-New Mexico Border: New Mexico Stakes its Claim

In May 1850, at the urging of the Taylor administration, New Mexico held a constitutional convention that drafted a proposed state constitution and petitioned for admission.

The boundary section [of the proposed constitution] . . . prescribed a line beginning at the dam in the Rio Grande near El Paso running due east to 100 degrees west longitude and due north on that meridian to its intersection with the Arkansas River [in what is now Kansas]; then up that river to its source [in what is now Colorado] and then in a direct line to the intersection of 111 degrees west longitude with the Colorado River; then due south on that meridien to the Gila River and up that river to some point yet to be determined as the international boundary by a U.S.-Mexican commission, then east along this international boundary line, to the Rio Grande and, finally, down the Rio Grande to the place of beginning.

Mark J. Stegmaier archly observes:

Just as Texas had laid claim to the settled parts of New Mexico, so did the New Mexico convention audaciously lay claim to an area that included at least two longitudinal degrees of territory within the settled area of Texas.

The Texas-New Mexico Border: The Webster-Bell Plan

The Joint Resolution of Congress authorizing the annexation of Texas to the United States, signed by President Tyler on March 1, 1845, included a provision that up to four additional states of “convenient” size, in addition to Texas, could later be created from the state's territory. Moreover, states that were formed from Texas lying south of the Missouri Compromise line would admitted "with or without slavery":

New states, of convenient size, not exceeding four in number, in addition to said state of Texas, and having sufficient population, may hereafter, by the consent of said state, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution. And such states as may be formed out of that portion of said territory lying south of thirty-six degrees thirty minutes north latitude, commonly known as the Missouri compromise line, shall be admitted into the Union with or without slavery, as the people of each state asking admission may desire. And in such state or states as shall be formed out of said territory north of said Missouri compromise line, slavery, or involuntary servitude, (except for crime,) shall be prohibited.

Five years later, the application of California for admission as a free state threatened to upset the balance of free states and slave states in the Senate. In addition, most observers expected that New Mexico and Deseret (Utah) would prove inhospitable to slavery. One potential remedy was to take advantage of the Joint Resolution’s invitation and divide Texas into two or more states – presumably slave states – each of which would have its own senators.

Senators Daniel Webster and John Bell contemplated precisely such a plan as a key element of a compromise to the resolve the Crisis of 1850. In late February 1850, newspapers reported on elements of a compromise plan that Webster was expected to introduce. Among other things, Webster was reportedly contemplating a proposal to divide Texas into no fewer than three states. Texas itself (marked "T" on the map above) would be reduced to the area between the western border of Louisiana and the Trinity River; to the west, one new state (marked "1") would extend from the Trinity River on the east to the Colorado River on the west; even further west, a second new state (designated "2") would be created between the Colorado on the east and the Rio Grande on the west.

The northern boundary of the new states would be 34 degrees north. Land north of 34 degrees would be ceded to the federal government and included in New Mexico territory.

Webster never introduced his proposal because colleagues told him that it would be viewed as so pro-southern in New England that it would destroy his political career. However, Whig Senator John Bell of Tennessee then introduced a plan that was based on Webster's. "The propositions for the subdivision of Texas [in Bell's Plan] were exactly the same as those reported as part of Webster's plan in the press."

Mark J. Stegmaier reports that the Bell Plan "initially received some supportive comments, but [it] would fail as the basis for compromise, just as all other schemes focused on the subdivision of Texas did." There were two primary reasons for this. First, "the great majority of Northern legislators [would] not countenance a subdivision." But equally important was the fact that "the Texans did not desire it either."

Texans could appreciate the need for more slave states and the intent of the 1845 annexation resolutions to permit Texas to subdivide into as many as four additional states, but, when it came to the practical accomplishment of this, Texans were at best reticent and mostly hostile to the idea in 1850. Many were fearful of the economic and trade implications of dividing the old imperial republic into states of middling size. More worrisome was the slavery question in west Texas. The frontier region beyond the Colorado was still sparsely populated, and the whites there possessed only a few slaves. The reality was that any state in that area would probably become a free state if detached from eastern, slaveholding parts of Texas. Texans' dread of a free-soil territory or state on their norther and western border in New Mexico was only compounded when they considered that a state carved out of the frontier even closer to the settled parts of Texas would likely also become a free state.

The Texas-New Mexico Border: Clay's Proposal

Many accounts of the Compromise of 1850 treat the resolution of the Texas-New Mexico boundary dispute as an afterthought, or at least a subsidiary issue. Mark J. Stegmaier's Texas, New Mexico, & The Compromise of 1850: Boundary Dispute & Sectional Crisis places the emphasis where I think it should be:

Of all the issues presenting themselves in 1850, this one alone -- the boundary dispute -- offered the immediate potential for bloodshed and subsequent evils if Texas should send a militia force into New Mexico. President Taylor's already-strong distaste for Texans and his belief that the Texan claim to New Mexico east of the Rio Grande was invalid, combined with his stalwart inflexibility, only added to the volatility of this situation.

One reason I'm enjoying the book (thanks Sean Nalty for the recommendation!) is that it contains a number of maps illustrating different proposals that were made to resolve the Texas-New Mexico border and, in some cases, to carve additional states out of Texas. I'd read descriptions of some of these proposals, but they were always hard to visualize.

In fact, I had been looking on the net for several years to see whether anyone had posted maps showing at least some of the proposals. I never found any. It is that dearth of maps that I propose to remedy.

The boundary proposal that I was most interested to understand was that proposed by Henry Clay as part of his initial compromise plan at the end of January 1850. Professor Stegmaier describes Clay's boundary proposal as follows:

[Clay's] third resolution suggested that the boundary run up the Rio Grande "to the southern line of New Mexico" and thence eastward to the 1819 treaty line between Spain and the United States [i.e., the western border of the state of Louisiana]. However, Clay never specified where "the southern line of New Mexico" lay.

The choice for the southern border of New Mexico was (again according to Professor Stegmaier) probably either 32 or 34 degrees north latitude. Of the two, Professor Stegmaier believes that Clay must have intended (assuming he understood the geography sufficiently to have an intention one way or the other) the more northerly 34 degree line:

Clay, in devising his compromise, certainly did not intend to promote the latter view [the 32 degree line], which Texans and all other Southerners at the time would have deemed absurd. The Southern extremists in Harrison County, Texas -- which lay above 32 degrees -- were about as likely to accede peacefully to such a proposal as those in Charleston, South Carolina, would have been!

To illustrate the difference, I have taken a county map of current Texas, New Mexico and environs, drawn in rivers and some population centers, and then drawn lines across at 32 and 34 degrees. That is the map that appears at the top of this post. It should give you some idea of Clay's proposal(s), and the difference between it (or them).

Unfortunately, I have not yet figured out how to label the elements (rivers and population centers) I have added. I uploaded the map to Flickr and placed labels on the map there. You may see the Flicker version here.

The version of the map at the top of this post expands to a larger version if you click on it (I hope).

Dancing in the Streets

I, for one, am going out dancing in the streets. Obama has clearly lost his mind. The Republicans with have a field day with Biden. I am not being facetious.

The Eleventh Amendment and the Sovereignty of the States

I believe I have previously expressed regret that students of American history do not take more advantage of some of the historical studies being produced by legal scholars. This is understandable. Much writing by legal historians winds up in law reviews. Although law review articles and drafts are becoming more accessible via the internet and SSRN, it may simply not occur to laypersons with a historical bent to look there. In addition, law reviews for the most part tend to publish obscure, turgid rubbish, which is of no interest to lawyers, much less non-lawyers. It’s not easy to find the historical wheat amongst the legal trash.

Still, there are legal books and articles out there that I think would be comprehensible, interesting and useful to lay students of history. A number of members of the academic legal community are producing articles and books with substantial historical components. In large part, this is the result of an increasing appreciation of the need to explore the original understanding of the United States Constitution and the Amendments to it.

By way of example, I thought I’d briefly discuss an article I read recently that I think might be of interest to serious American history students. It is freely available on SSRN, so it costs you nothing to take a peek.

Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction is by Kurt T. Lash, a professor at Loyola Law School (Los Angeles). Professor Lash has written a number of great articles on the Ninth and Tenth Amendments and is one of the writers on constitutional history that I always make sure to read.

The Eleventh Amendment is obscure even to most lawyers. Very briefly, after the Constitution was ratified in 1788, a number of states were named as defendants in lawsuits brought in federal courts (that is, the United States Supreme Court or inferior courts created by Congress) by citizens of other states or countries. The states were not sued in their own (state) courts because that was not an option – at the time, every state had declined to waive the sovereign immunity that protected it from suit.

In February 1793, the United States Supreme Court, in a case called Chisholm v. Georgia, held that the Constitution authorized States to be sued in federal court, without their consent, by citizens of other States or foreign countries.

With a handful of exceptions, the states expressed outrage, and acted on it. They directed their representatives in Congress to amend the Constitution. Within eleven months, both the Senate and the House passed, by overwhelming margins (23 to 2 and 81 to 9 respectively), a proposed corrective amendment. Less than a year after that, a sufficient number of states ratified the proposed amendment, which became the Eleventh Amendment, declaring that the Court had incorrectly construed the Constitution.

Professor Lash uses this story to document and illuminate what Americans at the time understood the relationship between the federal government and their state governments to be. The central impulse that fueled outrage was the widespread belief and understanding that the states remained sovereign entities, which were entitled to sovereign immunity. The Supreme Court’s ruling effectively stripped the states of their status as sovereigns and treated them instead as mere “dependent corporate bodies”. The federal government alone was sovereign. Consolidation, loss of freedom and tyranny were the foreseeable results.

Nowadays, most of us (except for some of us troglodytes) are accustomed to thinking of the federal government as the bulwark of liberty, protecting us against the potentially repressive states, which have been reduced to virtual nonentities. Professor Lash’s article provides a vivid illustration of the startlingly different worldview of the founding generation. At the very beginning of the article, for example, he paints a dramatic picture of the dying John Hancock, then Governor of Massachusetts, rising from his final illness to call the state legislature into special session to address what he believed was an imminent threat to liberty:

There are certain inherent principles in the Constitution . . . which can never be surrendered, without essentially changing the nature, or destroying the existence of the Government. . . . A consolidation of all the states into one Government, would at once endanger the Nation as a Republic, and eventually divide the States united, or eradicate its principles which we have contended for.

At the same time, Professor Lash tells a tense and tawdry tale of deceit and deception by the federalists who championed and won ratification of the Constitution. In and in connection with the state conventions called to consider ratification, the federalist proponents repeatedly promised that, except as to those powers specifically delegated to the federal government, the states would remain sovereign. For example, in Federalist 39, James Madison’s “Publius” insisted that the federal government’s “jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”
More specifically, proponents of ratification also repeatedly promised that it was inconceivable that states could be sued against their will in federal court under the Constitution – the States retained their sovereignty, and they had not ceded it to the federal government. The text of the proposed Constitution contained a provision that appeared to permit suits against States: Article III, Section 2 provided in relevant part that

The judicial Power shall extend to all Cases, in Law and Equity . . . between a State and Citizens of another State . . . and between a State . . . and foreign States, Citizens or Subjects.

Nonetheless, Madison (for example) assured the Virginia Convention in no uncertain terms that this language did not permit states to be hauled into federal court without their consent:

It is not in the power of individuals to call any state into court. The only operation it [Article III, Section 2] can have, is that, if a state should wish to bring suit against a citizen, it must be brought before the federal court. . . . It appears to me that this can have no operation but this – to give a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it.

Likewise, in Federalist 81, Alexander Hamilton (of all people) represented that states could not be sued without their consent precisely because they would remain sovereign entities:

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States and the danger intimated must merely be ideal. . . . The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force.

Finally (one last example), in the Massachusetts convention, Rufus King, according to the reporter,

“pledged his honor that the convention at Philadelphia never discovered a disposition to infringe on the government of an individual state; and that in his opinion no Congress on earth would dare invade the sovereignty of this commonwealth.” On the strength of this gentleman’s opinion, [Article III] was assented to but by a small majority.

And yet, only five years later, when the Supreme Court ruled otherwise, many “national” federalists (my term) justified the result by citing what we today would call the “plain meaning” of the language of Article III, Section 2. Others remained conspicuously silent.

Doubters who had relied upon the assurances of proponents were understandably outraged. “Brutus” of Massachusetts specifically reminded readers that “’apprehensions’ about Article III voiced in the state ratifying convention ‘were said to be groundless by the advocates of the Constitution, and the jealousies of the members on that subject, were laughed at, and treated as ridiculous by [Rufus] KING and others.”

These suspicions were considered by them, as visions and chimeras of the brain, and as phantoms of distorted imaginations. But what do we now behold! These chimeras, these phantoms, these visions, are no longer imaginary, but appear in bold colors of a demand, as founded on that very Constitution!

“A True Federalist” spelled out similar thoughts:

I am a firm friend to the federal government; I consider it as an inestimable blessing to this country . . . . But I consider our motion, and your arguments and opinions as subversive of it, and as tending to establish a civil government for the United States, which the citizens of these communities, have never consented to. When the Constitution under consideration, was proposed to the people of Massachusetts, some men, in whom the people had placed confidence, openly and solemnly declared, that there never could be a construction given to it which would render the states liable to be sued on a common civil process. Some of them, for reasons very obvious to their fellow citizens, have altered their opinions, and others openly confess, that they thought it best to deceive the people into the measure of adopting the plan proposed. The idea of deceiving the people into a measure, is much more criminal, in my opinion, than of subduing them by force; in the first there is necessarily a perfidious breach of trust, but in the last here is only open and manly warfare. The first is predicated upon the tyrannical idea, that the people are incapable of understanding what is best for them, and most conducive to their own political happiness; but in the last there is a hope of relief in revolution, to be gained at one time or another, by superior force.

Professor Lash uses the underlying history as a basis to raise a number of more purely “legal” issues. It may well be that the student interested in history rather than legal theory will want to skim over portions of the article or ignore them entirely. But substantial portions of the article can be read simply as thought-provoking history. How did most people understand the relationship between the federal and state governments? Were the anti-Federalists the paranoid nut-jobs they are usually portrayed as now? Conversely, should we reconsider, or at least temper, the exalted status we accord some of the Federalist icons?

The Vote for President in New Jersey, 1860

In the presidential election of 1860, New Jersey awarded 4 electoral votes to Abraham Lincoln and three electoral votes to Stephen A. Douglas. How did this happen? This New York Times article from December 26, 1892 tells the story.

After the breakup of the Democratic nominating convention in Charleston, SC, a second convention met in Baltimore and nominated Stephen Douglas.

Back in New Jersey, however, that did not settle matters. The State Committee of the party was in the hands of friends of the Buchanan administration. For this reason, and because it wanted to present a slate of electors with the broadest possible appeal in the hopes of defeating Abraham Lincoln, the state Committee was unwilling to endorse a slate of seven pro-Douglas electors.

The Douglas men rejected this idea. They gathered in a convention in Trenton, NJ on July 25, 1860 and nominated a slate of seven pro-Douglas electors:

William Cook of Hudson County
Joel Parker of Monmouth County
Theodore Runyon of Essex County
Abraham W. Nash of Camden County
Moses Wills of Burlington County
Joseph Vliet of Warren County
Daniel S. Anderson of Sussex County

The State Committee refused to back down, however. It nominated a fusion slate of seven electors divided among the anti-Republican factions as follows:

The three pro-Douglas electors William Cook, Joel Parker and Theodore Runyon;
Two pro-Breckinridge electors, Alexander Wurts and Peter D. Vroom; and
Two pro-Bell electors, Silas Condict and Edmund Brewer.

Notwithstanding protests of Douglas men, the State Committee had sheets printed listing these seven names as the official Democratic ticket and distributed them to local party leaders throughout the state. The local party leaders would make these printed tickets available to voters, who could cast them as their ballots. Under conventions of the time, voters submitted the preprinted tickets as their ballots, either as is or after making changes (by, for example, crossing out one or more names and writing others in by hand).

One local pro-Douglas party leader, however, rebelled. He refused to distribute the fusion tickets he had received from the State Committee. Instead, he distributed tickets containing the names of the seven pro-Douglas electors.

The election was sufficiently close in New Jersey that the loss of some 5,000 to 6,000 fusion tickets affected the outcome. The three Douglas electors who appeared on both the fusion ballots and the straight Douglas ballots (William Cook, Joel Parker and Theodore Runyon) were the top three vote-getters in the state, receiving about 63,000 votes each. Next came four of the Republican electors (Joseph C. Hornblower, Edward W. Ivins, George H. Brown and Charles E. Elmer), who received vote totals ranging from 58,346 to 58,316.

After that came the electors who had appeared on the fusion ballots but not on the straight Douglas ballots. They received some 5,000 to 6,000 fewer votes than Cook, Parker and Runyon, and from 294 to just over 2,000 fewer votes than the successful Republicans:

Peter D. Vroom (Breckinridge) 58,022
Edmund Brewer (Bell) 57,770
Silas Condict (Bell) 57,552
Alexander Wurts (Breckinridge) 56,237

The pro-Douglas electors who did not appear on the fusion ballots received only about 5,000 votes each:

Abraham W. Nash (Douglas) 6,105
Moses Wills (Douglas) 4,856
Joseph Vliet (Douglas) 4,891
Daniel S. Anderson (Douglas) 1,392