Ugly Bat Boy!

"The cat's striking appearance is normal, for him."

Whose Lincoln?

Although I read The Corner regularly, somehow I missed this recent entry by Allen C. Guelzo. In just a few words, Guelzo says something important about Lincoln that torrents of ink often obscure. Thanks to Dimitri for noting it.

AFTERTHOUGHT: Readers may also want to take a look at Guelzo's review at Claremont entitled "Lincoln's Audition."

About the illustration:

A pro-Breckinridge satire on the 1860 presidential contest. Republican candidate Abraham Lincoln (right) and Democrat Stephen A. Douglas (left) appear as boxers squaring off in a ring before a small crowd of onlookers. Douglas is seconded by an Irishman (left), presumably representing Douglas's Democratic constituency. Lincoln is coached by a black man, who kneels at right, armed with a basket of liquor bottles, and signifies Lincoln's antislavery leanings. In the background a third candidate, John C. Breckinridge, thumbs his nose and points toward the White House. He is encouraged on his way by a number of men who cheer and doff their hats to him. Weitenkampf cites a version of the print signed by F. Welcker of Cincinnati. Whatever his identity, the artist of "The Undecided Political Prize Fight" was probably also responsible for "The Political Quadrille" and "Dividing the National Map" (nos. 1860-23 and 1860-24), judging from the strikingly similar handling of the candidate portraits in all three prints.

Millard Fillmore, Bankruptcy Reformer

Article I, Section 8 of the U.S. Constitution authorizes Congress to "establish . . . uniform Laws on the subject of Bankruptcies throughout the United States." This power went largely unused, however, until 1898. Congress passed a bankruptcy act in 1800, only to repeal it three years later. A second federal bankruptcy act passed in 1841 lasted eighteen months.

Faced with congressional inaction, some states stepped into the breach, most notably New York. Young Millard Fillmore was first elected to the New York State assembly as an Anti-Mason in 1828. In 1831, he was serving his third one-year term. At the time, New York retained a debtors' prison law that authorized creditors to have defaulted debtors sent to jail.

In 1831, Fillmore engineered the passage of New York's first bankruptcy law, which eliminated debt imprisonment (and freed debtors already in jail) and established rules for discharge of debtors. As Millard's biographer Robert J. Rayback tells it, Fillmore maneuvered himself into the chairmanship of a special committee, carefully drafted a bill, with help from a fellow Anti-Mason in the state senate, that would appeal to both debtor and creditor interests, and pushed the bill through the legislature by allowing the Democrats -- who had a three-to-one majority -- to take credit for it.

Rayback comments:

The artistry of the actor and demand for the limelight seldom guided Fillmore's behavior but his understanding of the role of public officials frequently did. The American scene required harmonization of its discordant groups, and responsibility for the task belonged to the practitioners of politics. Twenty years later, when he truly became a statesman, few men understood better than he this highest purpose of politics. Yet even here . . . in the youth of his career, he was beginning to appreciate and accept the role.

"The vastness of our country . . ."

In my last post, I reviewed a speech that David Wilmot delivered on the tariff in July 1846. This post continues and concludes that review.

Several weeks ago, I pointed out that in January 1847 Wilmot's colleague Preston King invoked the pioneer with his axe when he denounced slavery expansion. The same imagery appears in Wilmot's tariff speech six months earlier:

The bold pioneer, who with his axe fearlessly encounters our heavy forests and subdues our rugged soil, makes a valuable and permanent conquest over nature for the benefit of man. He has added something to the world’s stock, and made that which before was useless subservient to the happiness and support of his race.

Has he in his noble undertaking asked the bounties of Government in his behalf? Has he come with greedy and selfish grasp, demanding from the public treasury a premium upon the land cleared by him, or upon the wheat and corn raised as a product of his labor? Sir, this man asks only protection from rapacity and wrong.

“[T]he farmer,” Wilmot complained, “is fleeced.” “[T]hese enormous profits come from . . . the pockets of the people.” “Privilege and monopoly are ever selfish – ever grasping. Interest is the sole governing principle of all their actions.”

Later, Wilmot touched on the intersection between labor and land. The passage offers a tantalizing hint as to why Wilmot and other northern Democrats like him placed so much importance on Free Soil, both in theory and in fact. The continued existence of the United States as a republic, Wilmot suggested, depended on the continued availability of inexpensive land. Just look at Europe:

I solemnly believe, if this policy [of protection] could be permanently established, that not one century would pass away before the free and independent laborers of this country would be reduced to the degrading condition of the laborers of Europe. It would sap and undermine our republican institutions. The people would lose control over their own Government, and wealth become firmly intrenched in all the seats and high places of power.

The vastness of our country, and the cheapness of the unoccupied lands, have hitherto prevented the full development and workings of this system. Had our limits been confined between the Atlantic and the Alleganies [sic], we should ere this have witnessed the fruits of this system upon the labor of the country. We should have seen here, as in England, men, women, and children, working from fourteen to eighteen hours in the day for a mere subsistence. It is this accursed policy of legislation for the capital of the country, together with the paper-money system, that has contributed more than all other causes, to fasten upon the English laborer a slavery worse than that of the lash.

(Emphasis added)

About the illustration:

A virulent attack on Vice-President George M. Dallas, charging the former Pennsylvania attorney and senator with duplicity in his stand on the tariff of 1846. "Jesuitism" was a strong contemporary term for deception and intrigue, and the artist portrays Dallas's support of the 1846 tariff as a reversal of his campaign pledge to support the popular tariff of 1842. In 1846, the Polk administration introduced and passed (Dallas's own vote as president of the Senate being a deciding factor) the Walker Tariff. The 1846 tariff involved a reduction of the tariff of 1842, which had been supported by the Democratic platform in the 1844 election. The later measure, a revenue tariff rather than a protectionist one, was reviled by the considerable industrial interests of Pennsylvania and other northeastern states. In the print, Dallas (right) addresses a crowd in the street from the steps of his law office. He displays a large banner reading, "Polk, Dallas, Shunk [successful Democratic gubernatorial candidate Francis M. Shunk] And The Tariff of 1842." Dallas: "Friends & Fellow Citizens, the Tariff of 1842 is a democratic measure & as such will be supported by Mr. Polk & Myself! I am, as my friend Joel B. Sutherland [former Democratic congressman from Pennsylvania] says, a man of principle according to my interest!" Various comments from the crowd: "Go it George We all want Protection!" An Irishman with shillelagh: "That's the way to talk! Dan [i.e., Whig senator and champion of protectionism Daniel Webster] himself couldn't bate that be Jasus!" "Hurah! a true Pennsylvanian every inch of im." In the lower left a conversation among several gentlemen: "I told you that Polk & Dallas were more in favor of the Tariff of 42 than [1844 Whig presidential candidate Henry] Clay!" "I'll believe it when I see it!" "who does he [i.e., Dallas] remind you of?" "He's very much like Talleyrand in hair & Principles--in all else wanting." A Pennsylvania German with a clay pipe remarks, "I says noding but I dinks so much!" Francis Shunk enters from the left with arms full of papers with the names of western Pennsylvania counties on them. He announces to Dallas, "Hold on till I bring some big Democratic Guns from the west--to bear on the question! When it come to the point then I'll talk, For I'm the real Simon "Pure!""

"I will war against it while I have breath"

I’ve suggested before that David Wilmot seems to be a ghost. In most narratives he appears out of nowhere, tosses his famous Proviso like a stick of dynamite onto the floor of the House, and then vanishes again. Who was this guy? To get a better feel for him, I thought I’d take a look at another speech he delivered in the summer of 1846, a speech unrelated to the Proviso that bears his name.

In mid-summer 1846, the House of Representatives was sitting “in Committee of the Whole on the state of the Union.” More particularly, the House was debating the Polk administration’s proposed bill to reduce duties on imported goods from the levels set by the Tariff of 1842. The administration bill ultimately resulted in the Walker Tariff of 1846.

On July 1, 1846, Democrat David Wilmot was recognized. Although only a freshman (he had been elected in the fall of 1844), Wilmot delivered a speech that left no doubt where he stood. Defying the other members of the generally protectionist Pennsylvania delegation, Wilmot bitterly criticized the 1842 Tariff as unjust and oppressive. More generally, he denounced protectionism in general.

Wilmot approached the issue from a radical Jacksonian perspective. The 1842 Tariff was partial legislation that unjustly favored a privileged class and special interests:

I believe [the 1842 Tariff] unjust and oppressive; imposing heavy burdens upon the labor and industry of the country, for the purpose of building up a monopolizing and privileged class. I believe it at war with the spirit and genius of our institutions, and dangerous to the equal rights and liberties of the people. This Government was established for the equal benefit and protection of all its citizens. . . . When it . . . seeks to build up one interest, (which can only be done by depressing others,) it ceases to be a just Government – it becomes a tyranny, unworthy of the confidence or support of the people.

Wilmot’s brand of Jacksonian analysis emphasized protection of labor and the laborer. Some of the rhetoric sounds almost proto-Marxist:

Again: all wealth is labor. If, by any system of legislation, you enhance the profits of a particular department of labor beyond what they would otherwise be, you must of necessity draw those increased profits from the labor of some other. If this proposition be correct, the subject would seem to resolve itself into an answer of the single question: Do high protective tariffs increase the profits of the manufacturer? If so, it follows that those increased profits are drawn from some other department of industry.

The answer to that question was self-evident, Wilmot maintained:

Who is it that year after year clamors so loudly for protection? Is it the farmer – the industrious and enterprising artisan – the day-laborer? No, sir; these men are never seen about your halls, asking the special legislation of this Government in their behalf. They rely upon their industry and economy to obtain for themselves and their families a livelihood. It is the manufacturers who come here asking bounties and protection for the particular business in which they have chosen to embark their capital. Do they ask this in order to lessen their prices and diminish their profits? It is too absurd for serious argument.

The struggle over “this protective policy,” Wilmot maintained, was “a contest between capital and labor – the former struggling to perpetuate its privileges, and the latter for its rights and just rewards.”

Sir, I am in favor of protection. I here avow myself a protectionist in the highest and truest sense of the word. I demand protection for labor, against the cruel exactions of capital. I demand protection for the equal rights of the people, against a privileged and monopolizing class, upheld and sustained by partial legislation. I claim protection for the hard earnings of the poor, against an insidious system that plunders by stealth, and eats out his substance. Why, sir, in the name of humanity, seek to heap burden after burden upon the back of labor? Is not the lot of the poor already sufficiently hard? Has not wealth already sufficient advantages over poverty?

At the same time, Wilmot emphasized the limited nature of the remedy he was seeking (and in the process demonstrated that he was no proto-Marxist after all). He was not demanding affirmative protection for labor, simply that capital and wealth not receive artificial advantage:

The poor toil in heat and in cold for a plain and homely subsistence, suffering many reverses, enduring many privations. His children toil by his side, or leave home at an early age to toil in the fields or workshop of the stranger.

Against this, Democracy [i.e., the Democratic Party] makes no complaint. Democracy seeks not to deprive wealth of any of its legitimate advantages; it asks not to take from the rich one farthing of his riches; but it does demand that these advantages shall not be increased by the partial enactments of the Government; that no system of direct or indirect bounties be established, by which a portion of the earnings of the poor be taken to swell the already overflowing coffers of the rich.

The protective tariff was precisely such a system, Wilmot asserted. “I will war against it while I have breath.”

About the illustration:

Whig presidential candidate Winfield Scott and his party pursue an abolitionist course leading toward Salt River and political doom. New York senator and antislavery advocate William Seward appears as a poodle which leads the blindfolded Scott and his entourage of three asses with the heads of prominent abolitionists David Wilmot, Joshua Reed Giddings, and Horace Greeley. They pass a signpost pointing toward Salt River (ahead) and Washington (in the opposite direction). Seward: "Place the utmost confidence in me gentlemen asses . . . for when was I ever known to betray those with whom I was associated!" Scott: "It seems to me that I scent a strange saltness in the air!" Wilmot carries a "Free Soil" burden and is ridden by a black man. The slave exclaims, "Whew Massa Scott! up here you can see de riber shining in de sun!" Ass Giddings bears a sack marked "Abolition," while behind him Greeley carries a load marked "Higher Law." Greeley complains, "Here I am again upon my winding way. I would be glad to get off on my own hook, but this is my only chance for office, and I should like to get hold of another short term." A man on a hill in the background points toward Washington, exclaiming, "Ho there! Ho there! yonder lies your course! you're going astray! They are deaf as a post, or a set of obstinate jack asses!" (Under the man's feet the name "Seward" was inscribed but later obliterated.)

Silly, But Fun

The Sedition Act of . . . 1801?

You probably know about the Sedition Act of 1798, which expired in 1801. Did you know the Federalists attempted to enact a sequel in 1801, when it would have protected the newly-elected Democratic-Republican President and Congress? I didn't.

David W. Blight

Sorry. I know David Blight is an icon, but I've got to get this off my chest.

I've listened to the first two of Professor Blight's course lectures and, you know what, he's annoying me no end. I've been trying to figure out why. A good part of it is that his voice and vocal mannerisms make him a dead ringer for Garrison Keillor. Has anyone else noticed this? At any rate, the problem is, I've always hated Garrison Keillor. And Blight has all of his worst traits, particularly the condescending snarkiness that he tries to mask by slathering it with bucketfuls of treacley empathy. On top of that, I've been underwhelmed by the content. He made his name on memory and perception, and he's milking it for everthing it's worth. The man is obsessed with perceptions. Before getting to perceptions it would be helpful to discuss what actually happened.

That is all.

The Seventeenth Amendment

A recent post by Jonathan Adler Zywicki at Volokh reminded me that I never recommended Todd J. Zywicki's excellent articles on the Seventeenth Amendment -- that's the one that provided for the direct election of Senators by the people, rather than by state legislatures, as Article I, Section 3 originally provided: History of the Seventeenth Amendment and Its Implications for Current Reform Proposals and Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.

"Jacksonian Antislavery and the Politics of Free Soil"

Having posted several quibbles concerning minor inaccuracies and inconsistencies in Jonathan H. Earle’s Jacksonian Antislavery and the Politics of Free Soil, 1824-1854, I thought I should make sure that the record is clear: this is an eye-opening book.

The growth of the anti-slavery (or more properly anti-slavery extension) movement in the north in the decades before the Civil War is generally thought of as a Whiggish phenomenon. Whiggish types, absorbing via the Second Great Awakening the evangelical morality that also gave rise to the temperance campaign, increasingly came to regard slavery as a sin and moral blot on the body of the Republic. Yes, there may have been a few oddball Democrats who saw the light and ultimately tagged along, but for the most part northern Democrats seemed to be amoral at best: Lewis Cass inventing popular sovereignty, Franklin Pierce, Stephen Douglas and James Buchanan generally toadying to the south and the southern wing of their party.

Professor Earle sets out to correct this misimpression. In fact, a number of Democrats led the way in identifying slavery and the slave power as enemies. One of the delights of the book lies in meeting and getting to know previously unknown or indistinct political figures: Thomas Morris of Ohio and Preston King of New York (both of whom I have discussed before); John P. Hale, who unexpectedly precipitated a dramatic political realignment in New Hampshire, previously the “South Carolina of the North”; Marcus Morton of Massachusetts; and even David Wilmot, otherwise a vague figure who in most narratives mysteriously appears out of nowhere, only to disappear again into the mist.

More importantly, Professor Earle explores why there seems to have been a correlation between radical, hard-money, anti-Bank Democrats and opposition to the expansion of slavery. One key, he argues, was the tendency of radical democrats to perceive conspiratorial coalitions of interests that threatened to dominate yeoman farmers and urban proletariat: manufacturers who clamored for high tariffs, monopolistic corporations that shielded capitalists from ordinary rules of individual liability, and most famously the Monster Bank.

With a little squinting, Professor Earle suggests, slaveholders could look a lot like an aristocratic special interest. In an earlier post, I quoted from an 1839 speech by Senator Thomas Morris (Dem – Ohio), in which he not only drew the parallel but argued that the Bank Power and the Slave Power had joined forces:

But all will not do; these two powers must now be united; an amalgamation of the black power of the South with the white power of the North must take place, as either, separately, cannot succeed in the destruction of the liberty of speech and the press and the right of petition. Let me tell gentlemen that both united will never succeed. As I said on a former day, God forbid that they should ever rule this country. I have seen this billing and cooing between these different interests for some time past; I informed my private friends . . . that these powers were forming a union to overthrow the present [Van Buren] Administration . . ..

* * *

[T]he assertion has gone forth that we have twelve hundred millions of slave property at the South; and can any man so close his understanding here as not plainly to perceive tht the power of this vast amount of property at the South is now uniting itself to the banking power of the North, in order to govern the destinies of this country? Six hundred millions of banking capital is to be brought into this coalition, and the slave power and the bank power are thus to unite in order to break down the present Administration. There can be no mistake, as I believe, in this matter. The aristocracy of the North, who, by the power of a corrupt banking system, and the aristocracy of the South, by the power of the slave system, both fattening upon the labor of others, are now about to unite in order to make the reign of each perpetual. Is there an independent American to be found who will become the recreant slave to such an unholy combination? Is this another compromise to barter the liberties of the country for personal aggrandizement? “Resistance to tyrants is obedience to God.”

Almost ten years later, Pennsylvania Democrat David Wilmot spoke in similar terms:

“The gallant and true men who fought the battle of popular rights against privilege and monopoly – who aided in crushing the monster bank, and wresting from the grasp of eastern capital the hard earnings of labor, will never fight the battles of slavery propagandism” [Wilmot declared]. Again investing the rhetoric of antislavery with an older brand derived from the pen of William Leggett, Wilmot insisted that since southern capital had “a thousand millions of dollars invested in slaves,” the current struggle, like the bank war in the 1830s, was best viewed as one between “capital and labor.”

But what seems to given urgency to the threat presented by the Slave Power was the concept of Free Soil, which Professor Earle asserts is the crucial and overlooked component of the “free soil, free labor, free men” trilogy. Free Soil was not, Professor Earle argues, simply a “synonym for [the] more developed concept of free labor, an ideology . . . closely linked with the rise of capitalism in the North. . . . [M]any Free Soilers . . . came from remote rural areas or radical labor backgrounds and felt nothing but contempt for Whiggish free-labor views.”

The term originally referred to land reform: “the free distribution of the public lands to poor settlers, in the form of inalienable homesteads.” Although containing slavery was an incidental benefit, the scheme also enhanced democracy (more of those Jeffersonian yeoman farmers), reduced unemployment and raised wages, and attacked privileged land monopolists and speculators.

In time, however, “the Free Soil ideology [evolved] from a program for land reform to a bulwark against slavery expansion.” It was precisely the elusiveness of the phrase that made Free Soil so politically potent:

During the 1840s and 1850s, homesteads became unalterably fused with the issue of slavery expansion . . .. This link underscored Free Soil’s rhetorical elusiveness and ambiguity. The potent term was appropriated by a host of other groups, movements, and political parties, including the Free Soil Party and, later, the Republicans. No matter who appropriated it, however, Free Soil always potentially implied the double meaning . . .: land free of charge and at the same time free of slavery. Free Soil managed to speak directly to the anxieties of poor or vulnerable northern whites, creating a new source of support for limiting slavery’s expansion.

The radical Democratic critique of slavery was thus very different from the moral and religious foundations of abolitionism and abolition-based political organizations such as the Liberty Party. The emphasis on Free Soil and the Slave Power also focused the political debate squarely on the territories.

The genius of the Free Soil and Republican parties was to incorporate the double meaning of Free Soil – and its radical Democratic message – into their platforms. By doing so they were able to broaden their base to include large numbers of Democrats who became convinced that their former party had become “a tool of the slaveholding oligarchy.” These Democrats, moreover, often came from hardscrabble rural districts that had consistently resisted the lure of the Whigs -- areas such as New York's "Passed-Over District" and the Wilmot District of Pennsylvania. It is no accident that in 1862 the Republican Party produced the Homestead Act as well as the Emancipation Proclamation.

Quibbles and all, Professor Earle's book is excellent. Highly recommended.

About the illustration:

An election-year satire favoring Free Soil candidate Martin Van Buren in the 1848 presidential contest. A long-legged John Van Buren carries his father piggyback through Salt River, heading toward the White House on the far shore. "Matty" says, "Thanks to your long legs, John, I believe that I shall pass over this Jordan dry shod." The younger Van Buren assures his father, "Hold on Dad & I'll put you through." Meanwhile, abolitionist editor Horace Greeley and candidates Taylor and Clay are having a more difficult time fording the river. Clay is immersed head first, leaving only his legs visible. Taylor is neck-deep in the water. Greeley yells to Kentucky Whig leader Cassius M. Clay, seated on the near bank, "Help, Cassius, or I Sink." Clay replies, "Can't come there, Horace, I risked my life in Mexico, & I don't like to do it again." (Cassius Clay was a hero of the recent Mexican War).

Two Articles

These two articles look interesting:

Seth Barrett Tillman, The Puzzle of Hamilton's Federalist No. 77: It Turns out that Hamilton was Right After All:

The Founders, the authors of the Constitution of 1787, much like you and me, were flesh-and-blood human beings. As a result, we expect to find errors and exaggeration in their written works. There is nothing new about that insight. But one alleged error has always struck me as somewhat different from other alleged errors. I am speaking of Hamilton's 1788 publication: The Federalist No. 77. There he wrote:

IT HAS BEEN MENTIONED as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.

This is the enigmatic great white whale among Founding-era documents.

Partisans of Senate (or congressional power) agree with Hamilton (or, at least, they think they agree with Hamilton). These commentators look back to the Tenure in Office Act and to any number of statements made on the floor of the House when statutory removal was first debated in 1789 -- all purportedly consistent with Hamilton's statement here. Partisans of presidential power disagree with Hamilton (or, at least, they think they do). They affirm that Hamilton erred. These commentators look to Myers v. United States and to statements made by Madison on the floor of the House during the statutory removal debates. The consensus view, nay - the universal view, is that Hamilton was speaking to the issue of the "removal" of federal officers.

However, this understanding of The Federalist No. 77, the standard view, the view that Hamilton was speaking to "removal," creates as many problems as it might resolve. And this is true without regard to whether or not you think Hamilton correct or erred. First, the standard view is puzzlingly inconsistent with everything we know about Hamilton, the premier Founding-era spokesman for energy and unity in the Executive. How is it that he would concede a role for the Senate in regard to the removal of federal officers, if a contrary view were even remotely tenable? Second, Hamilton's opining on the scope of the removal power is inconsistent with his plan for and the purpose of The Federalist. His plan for The Federalist was to discuss the defects of the then-current regime, the government under the Articles, the need for a more energetic government, and finally, to provide an article-by-article, clause-by-clause defense of the newly proposed Constitution of 1787 as consistent with the principles of Republican government, liberty, and property. Removal is simply not expressly addressed in the Constitution. To bring up "removal" is just bad tactics - why open up that can of worms, particularly where one's conclusion lacks direct textual support or any closely reasoned argument. Was Hamilton really such a poorly skilled tactician and propagandist? There is a third problem with the standard view .... This problem is not historical, but textual. If you read Hamilton's statement, you will notice that he does not actually use the word "removal" or any variant on "removal." Rather, he uses the word "displace." And that is the key to this ancient intellectual puzzle. Hamilton was not speaking to the power of removing federal officers, rather he was speaking to who had authority to displace federal officers. The two words are akin, but they are not at all times and for all purposes the same.

Lawrence B. Solum, Incorporation and Originalist Theory:

Does the Fourteenth Amendment of the United States Constitution incorporate the Bill of Rights contained in the first eight amendments? And how should an originalist answer that question? This paper focuses on the latter question-the issues of originalist theory that are raised by judicial and scholarly debates over what is called "incorporation."

The inquiry proceeds in six parts. Part I answers the questions: "What is incorporation?" and "What is originalism?" Part II examines the theoretical framework for an investigation of incorporation that operates within the narrow confines of interpretation of the linguistic meaning text based on the assumption that the original meaning of the text is solely determined by the public meaning for ordinary citizens at the time of framing and ratification. Part III relaxes the assumption that "original meaning" is determined solely by the linguistic practices of the whole community and considers the possibility that the phrase "privileges or immunities" was a term of art with a technical meaning for those learned in the law. Part IV relaxes the assumption that the incorporation debate must be resolved solely by interpretation of linguistic meaning and considers the possibility that incorporation doctrine might be viewed as a construction of an under determinate constitutional text. Part V considers the implications of the possibility that the "privileges or immunities clause" instantiates what might be called a failure of constitutional communication, considering the possibility of a saving or mending construction of the clause. Part VI concludes.

Academic Earth

At Wig-Wags, Rene Tyree has a fantastic tip on a site called Academic Earth, which has downloadable lectures by leading academics. Since Rene focuses on David Blight's course on the Civil War Era and Reconstruction, let me recommend another: Donald Kagan's course on Ancient Greek History.

Professor Kagan has been a leading scholar on Ancient Greece for the past thirty plus years. His four-volume study of the Peloponnesian War, first published in the 1970s, remains the leading work on the subject. To top it all off, Professor Kagan has been known on the Yale campus for decades as one of the school's finest and most entertaining lecturers. Over the years, his introductory Greek History course has routinely been packed to the rafters -- and that despite the subject matter, the professor's rigorous grading, and his outspoken conservative political views, which have sometimes been controversial in Yale's left-wing culture.

Some Thoughts on the Compromise of 1850

I was struck by this observation by Jonathan H. Earle:

Without the lifeblood of constant agitation to nourish its ranks, the Free Soil movement languished in the years between the compromise [of 1850] and the Kansas-Nebraska Act.

* * *

When the 1852 votes were counted, the Free Democrats were pummeled in every quarter, even where they had done well four years before. With the exhausted David Wilmot in retirement, voters in Pennsylvania's 12th Congressional District voted overwhelmingly for [Franklin] Pierce . . .

* * *

For fourteen months after the 1852 election, Free Soil -- as a movement, an ideology, and a party -- was practically moribund. Then on January 4, 1854, the diminutive Illinois senator Stephen A. Douglas introduced a bill . . ..

The quote highlights the fact that, in many ways, the Compromise of 1850 was a striking success. 150 years later, a combination of hindsight and the tendency of events to get telescoped together makes it appear that the Compromise was doomed from the start. The history of the late 1840s and 1850s is often portrayed as a series of waves cresting ever higher as the flood tide of discord rushes in and eventually envelops the country (or, as David M. Potter has put it, "a kind of a vortex, whirling the country in ever narrower circles and more rapid revolutions into the pit of war"). But the men who crafted the Compromise did not, and could not, know that.

Even so great an historian as Professor Potter, who repeatedly emphasizes the contingency of history, sometimes falls into the trap. While admitting that "[a]ntislavery men were profoundly discouraged" after the Compromise, and that "outward appearances all indicated that the national yearning for harmony would banish the slavery issue from politics," he also refers to "the futility of the Compromise" and "the shibboleth of 'finality' as a slogan."

Professor Potter contends "that the sectional rapprochement" during the post-Compromise years "did not rest on broad or deep foundations." But if that is so, it only emphasizes the remarkable job done by those who constructed the Compromise. For ten crucial years the Compromise withstood a series of unforeseen and unforeseeable blows -- from Bloody Kansas and Lecompton to the caning of Sumner and Dred Scott -- that would have felled a less sturdy structure.

About the illustration:

A crudely drawn satire bitterly attacking Democratic presidential candidate Franklin Pierce and appealing to the "Freemen of America." The print, possibly executed by a free black, criticizes the Democrats' platform, as established by the Baltimore Convention, which in the interest of preserving the Union endorsed the Compromise of 1850. More specifically the artist condemns Pierce's pledge to enforce the Fugitive Slave Act, included in the compromise as a submission to southern slaveholding interests. In the center Pierce prostrates himself before a "Slave holder & Peace Maker," a bearded man in wide-brimmed hat and striped trousers holding a cat-o-nine-tails and manacles. The upper half of Pierce is over the Mason Dixon line, his face in the dirt on the "Baltimore Platform." The slaveholder says: "Save the Union, / And with the "meanest" Yankee grease / Smear the hinges of your knees / And in "silence" pray for peace." Pierce, dubbed "one of the Southern "dirt" eaters "Saving" the Union," replies, "I accept this cheerfully." The Democratic platform is labeled "Southern pine" and is inscribed with reference to the compromise, "Fugitive Slave Law and nigger catching, and resist agitation on the Slavery question &c." On it lie a skull and crossbones, manacles, and a serpent. At far left is "the Devil come up to attend his revival," who commends, "Well done my faithful servants!" On the right is the infamous Hungarian general Julius von Haynau, who carries a whip and wears a "Barclay's Brewery" pitcher on his head. (Haynau was assaulted by Barclay employees while in England.) The Hungarian extends his hand toward the slaveholder, saying, "I feel quite at home in this company give me your hand my good fellow." Further to the right are Lewis Cass and Stephen A. Douglas, disappointed aspirants for the 1852 Democratic nomination. Cass says, "We are down Douglass, "Pierce" has bid lower than either of us." Douglas: "There is nothing impossible for a New Hampshire "Hunker" [i.e., conservative] Democrat to do in that line." On the ground nearby are the words, "the "slave&1ocratic miscalled the Democratic party, how they obey the "crack" of the slaveholder's whip!"

Lincoln and the Laws of War

An article in Slate entitled Lincoln's Laws of War has generated some interesting commentary by Volokh conspirators Eric Posner and Ilya Somin. Glenn Reynolds adds to the mix this post at Kenneth Anderson's Law of War blog.

It's unfortunate that Professor Posner ruins some otherwise decent points by buying into the Sherman/Total War nonsense:

For many historians of the laws of war, Lincoln was no hero. It was under Lincoln, and with his approval, that the modern concept of total war was invented—this was Sherman’s march through Georgia. It would be perfected by the Nazis and reach its apotheosis at Hiroshima.

As I've pointed out before, the idea that Sherman's march through Georgia was akin to, or even a precursor of, the Nazi devastation of Poland or Russia is ludicrous.

About the illustration:

An angered response to false Confederate peace overtures and to the push for reconciliation with the South advanced by the Peace Democrats in 1864. (See also "The Sportsman Upset by the Recoil of His Own Gun," no. 1864-32.) Confederate general Robert E. Lee and president Jefferson Davis (center) stand back-to-back trying to ward off an attack by Northern officers (from left to right) Philip H. Sheridan, Ulysses S. Grant, David G. Farragut, and William T. Sherman. Sheridan points his sword at Lee, saying, "You commenced the war by taking up arms against the Government and you can have peace only on the condition of your laying them down again." Grant, also holding a sword, insists, "I demand your unconditional surrender, and intend to fight on this line until that is accomplished." Lee tries to placate them, "Cant think of surrendering Gentlemen but allow me through the Chicago platform to propose an armistice and a suspension of hostilities . . . " The 1864 Democratic national convention in Chicago advocated "a cessation of hostilities with a view to an ultimate convention of the states, or other peaceable means" to restore the Union. Davis, unarmed with his hands up, agrees, " . . . if we can get out of this tight place by an armistice, it will enable us to recruit up and get supplies to carry on the war four years longer." Farragut threatens with a harpoon, snarling, " rmistice! and suspension of hostilities'.--Tell that to the Marines, but sailors dont understand that hail from a sinking enemy." Sherman, with raised sword, informs Davis, "We dont want your negores or anything you have; but we do want and will have a just obedience to the laws of the United States."

Favorite Presidents

In honor of Presidents' Day, National Review has solicited fourteen commentators to identify their favorite presidents and briefly explain their choices.

What is interesting is the variety of opinions. The usual suspects -- George Washington and Abraham Lincoln -- appear: Lincoln gets 2 1/2 votes and Washington gets 1 1/2. As you might expect, Ronald Reagan gets a vote, and William Henry Harrison gets two tongue-in-cheek nods (for dying before he could do any harm). But serious arguments are made in favor of no fewer than seven other candidates: Chester Alan Arthur, Grover Cleveland, Calvin Coolidge, Warren G. Harding, James K. Polk, Teddy Roosevelt and . . . wait for it . . . none other than Millard Fillmore!

The Wandering Wilmot District

In a recent post, I included a map identifying David Wilmot's congressional district as covering the three counties in white above. I did so based on Jonathan H. Earle's description of the district as "including all of Bradford, Tioga and Susquehanna counties in the northeast corner of the state."

Fifty pages later, however, Professor Earle appears to contradict himself:

The Free Soil votes in the Wilmot district's counties of Bradford, Potter and Tioga came overwhelmingly from Democrats but made little difference in the statewide race (see map 5).

Map 5 in fact identifies the "Wilmot District" as consisting of Bradford, Potter and Tioga counties, like this:

Now I'm guessing that the Wilmot District may have covered all four counties. But such imprecision is annoying and frustrating.

As an addendum, I was horrified to discover that Pennsylvania's 12th Congressional District is now a gerrymandered monstrosity in the southwest portion of the state, and is currently represented by the loathsome Jack Murtha.

Guess the Legislator!

In the the latter half of the 1840s, a United States Congressman (Senator or Representative) took the floor of his chamber and delivered an impassioned speech, during the course of which he expressed the sentiments delivered below. Use the poll below to guess who it was. I won't tell you the subject of the speech, except that it had nothing to do with Texas, Mexico, New Mexico, or slavery.

I deeply regret the course of a portion of my southern political friends upon this question. . . .

Sir, I am no croaker against the South. I have suffered abuse for the defence of her constitutional rights. My home is in the North. I love its green hills and quiet valleys. I would not exchange its rugged soil, that invites to labor, and begets a noble spirit of self-dependence, for the fertile and luxuriant plains of the sunny South. I would not exchange systems of labor, nor those stern and quiet virtues of the North, for all the chivalry and nice honor of the South.

Yet, sir, I am not insensible to the claims of the South upon my affection and respect. She has contributed largely to fill up the measure of our national glory. Her blood and her treasure has been freely poured out in the day of peril and of our country’s greatest need. I hold in profound respect the names of her great statesmen, living and dead. I have drawn largely from their teachings in the building up of my political faith. I cherish and respect them for their able vindication of the great doctrines of the republican school, their fearless defense of the rights of the States, and their watchful jealousy against the encroachments of Federal power. When the North and the East were rushing on towards consolidation, the South stood like a wall of fire in their path. The South, sir, has done much for the cause of republican principles, and of constitutional government.

Happy 200th, Abram!

I'm sure the blogs will be full today of reverential tributes, so I thought I'd be contrarian and provide another perspective on Abraham -- or was it Abram? Whoever you were, Happy Birthday!

About the illustration:

A caricature of Abraham Lincoln, probably appearing soon after his nomination as Republican presidential candidate. The artist contrasts Lincoln's modest posture at the Illinois Republican state convention in Springfield in 1858 with his confident appearance at the 1860 Illinois Republican ratifying convention, also held in Springfield. The two Lincolns are shown joined at the back and seated on a stump. The 1858 Lincoln (facing left) addresses a small audience of men, including a young black man. He denies any presidential ambitions, his words appearing in a cabbage-shaped balloon: "Nobody ever expected me to be President. In my poor, lean, lank face, nobody has ever seen that any Cabbages were sprouting out." In contrast, the 1860 Lincoln (facing right) states, "I come to see, and be seen." There may be, as Wilson maintains, an implied criticism here of Lincoln's reticence about his political views during the 1860 campaign, when from May to November Lincoln made no speeches except for a brief address at the meeting in Springfield. This may explain the less-than-enthusiastic, puzzled look of several of his listeners here. The lithograph is particularly well drawn. Although clearly by a trained and able artist, it is not readily attributable to any of the major known cartoonists of the time.

Tubes!

Martin Van Buren, 1847

[In 1847, Martin] Van Buren and his friends were no longer leading New York's Democrats; they were being led by them.

Jonathan H. Earle, Jacksonian Antislavery and the Politics of Free Soil, 1824-1854.

The Wilmot District

David Wilmot was elected to Congress in 1844 as the representative of Pennsylvania's 12th Congressional District. The 12th District was then composed of Tioga, Bradford and Susquehanna Counties (shown in white in the map above) in the state's northeast.

Jonathan H. Earle explains that the area encompassed by the 12th District was the Pennsylvania version of New York's Passed-Over District. The area was "[r]ugged, densely wooded, and remote," and the "land was rocky and poor." It had "very little industry and even fewer banks." In short, the district that Wilmot represented had been "'passed over' by the revolutions in transportation, markets, and information exchange that transformed" other areas of the north in the period.

"Predictably, the district was a bastion of Democratic electoral strength," with many expressing views on "canal 'monopolies.'" high taxes, "absentee 'land sharks'" and protective tariffs that "closely resembled" those of "the hard-money antibank radicals of New York's remote North Country, home of Democratic politicians Silas Wright and Preston King."

"The only club guaranteed to keep you out of the woods"

My sister is threatening to get me this for the opening of golf season.

A. Lincoln . . . Emoticon?

Boing Boing pointed me to this article (at the soon-to-be-defunct Gray Lady):

A historical newspaper specialist at the digital archival company Proquest believes he has found an example of a sideways winking smiley face embedded in The New York Times transcript of an 1862 speech given by President Lincoln. . .

* * *

In the transcription of President Lincoln’s speech, which added comments about applause and shouts from the audience was this line:

“… there is no precedent for your being here yourselves, (applause and laughter ;) and I offer, in justification of myself and you, that I have found nothing in the Constitution against.”

Bryan Benilous, who works with historical newspapers at Proquest, said the team felt the “;)” after the word “laughter” was an emoticon, more than a century before emoticons became a widespread concept.

Martha Washington, Hot Babe Update: Maybe Not So Much

In a recent post, I ogled Michael J. Deas's pictorial reconstruction of a young Martha Washington. At Boston 1775, however, J.L. Bell has posted an excellent entry pointing out that we already have a portrait of young Martha, painted in 1757, when she was about 26 years of age.

Mr. Bell has many learned points to make about matters such as differing standards of beauty in the 18th Century and now. I on the other hand have only one observation: Not so much.

"The same interest still desires its further extension"

When we last visited with Senator Preston King, he was mid-way through his January 5, 1847 speech providing “a personal explanation” of his bill that in effect re-introduced the Wilmot Proviso, which had died in the Senate at the end of the previous term of Congress in August 1846. Let us now pick up where we left off.

The “brave and patriotic generation who achieved our independence and established the republic,” King maintained, “did not hesitate” to pass “the ordinance of July, 1787, by which slavery . . . was forever prohibited” in the old Northwest Territory. And it was that one Act that had allowed “young men with their axes” to create “powerful Commonwealths” there “within the memory of a single generation, free, populous and flourishing.” Would Americans abandon this heritage and this lesson, and allow free territory to be converted into lands dominated by combinations of wealthy slaveholders and degraded by slave labor?

Shall we hesitate to do the same thing for territory where slavery does not now exist? I trust not. The man who has wealth or credit, to purchase a plantation, and becomes the owner of slaves, may settle and reside without social degradation in a country where slavery exists. Not so with the laboring white man. He cannot go without social degradation, and he therefore will not go. He is excluded quite as effectually as he could be by law. The mere presence of slavery, wherever it exists, degrades the condition, the respectability, the character of labor. A false and mischievous public opinion regarding the condition and respectability of labor is produced by its presence; and false and recreant to his race and to his constituency would be any Representative of free white labor upon a condition of social equality with the labor of the black slave; equally false would he be who, upon any pretence, should, by inaction and evasion of the question, produce the same degrading result.

For the most part, despite his withering attack on the institution of slavery, King restrained himself from directly attacking southerner legislators. This, however, did slip out (emphasis added):

This principle [in the proposed bill] excludes slavery from any territory which may hereafter be added to this country. This principle I deem to be of vital importance, and should be very much gratified if it could receive the unanimous assent and approbation of Congress. This, however, I do not expect. The same interest which pertinaciously insisted upon extending slavery over Texas, still desires, I apprehend, its further extension.

King then addressed the contention that “the people themselves” should decide whether to permit slavery – in effect, the Popular Sovereignty doctrine later developed by Lewis Cass and Stephen Douglas. King branded the idea as “unsound and false.” Unless forbidden by statute, slavery would inevitably spread:

If left alone, slaves more or less will be carried to the new territory, and if the country while it remains a territory should be settled by a population holding slaves, the new, and additional question of abolition is presented, and in order to get a free State slavery must first be abolished. This embarrassment in a new community, without means to indemnify its owners, would be an obstacle almost insurmountable, and the new State would be very far from being free to choose between becoming a free State or a slave State.

King briefly and unconvincingly tried to argue that the converse was not true: establishment of territory as free did not of exclude the possibility that a slave state might result; it simply permitted the people of the territory to make the decision “unembarrassed by any pecuniary interests or questions of vested right.” However, he soon dropped this evasion, maintaining that it “must be obvious to all” “that the character of the population in the Territory will determine the character of the State, when that Territory shall be erected into a State.”

If the Territory has a slave population of one one-fourth or one-fifth of the whole number, it will be a slave State. If a free population while a Territory, it will be a free State. Exclude slavery from all territory not within the limits of a State, and I am willing the Territory shall determine for itself, when it becomes a State, what shall be its character.

King concluded by urging Congress “to make this free principle a law” to avoid planting slavery upon free territory:

I desire the adoption of the free principle, because I believe it to be just to the free States, just to the white men who fight our battles, and who constitute the strength of the country in peace or war; because I believe it to be consistent with the principles of our Government, and because I believe it will tend to improve the condition and character of labor in the whole country. And who will deny that, in a republic, it should be one of the chief objects of Government to elevate and dignify the condition and character of labor?

About the illustration:

A mock triumphal procession ridiculing "Loco Foco" or radical Democratic support of candidates James K. Polk and George M. Dallas. The Loco Focos are portrayed as ragged Irishmen, carrying the two candidates on a rail. Polk, holding tight to the rail, remarks, "It appears to me, friend Dallas that there is a wonderful democratic simplicity in the honors which are paid us!" Dallas, holding tight to Polk, replies, "It is true, friend Polk, that, on this occasion we shall find no difficulty in bearing our blushing honors meekly." One of the rail bearers exclaims, "Glory to those whom the people delight to honor!!!" The procession is led by a man in knee-breeches holding a weathervane with a tiny figure of incumbent President John Tyler on its tip. The man complains, "Bedad, I can't carry you [i.e., Tyler] if you turn with every flaw of wind." Two blacks, playing fife and drums, bring up the rear.

Millard Fillmore, Governor of New York?

I’ve noticed what I think are two minor but disconcerting mistakes in Jonathan H. Earle’s Democratic Antislavery.

First, Professor Earles states that “Preston King kept his promise to reintroduce the [Wilmot] proviso on the first day of the new congressional session [in December 1846].”

My review of the Congressional Globe, discussed two posts ago, indicates, however, that King did not attempt to introduce his bill containing Proviso language until December 29, 1846, which was not the first day of the session. Perhaps Professor Earle meant to say “the first month of the session”?

Second, Professor Earle states:

The immediate effect of the Barnburner revolt was a humiliating Democratic defeat in the 1847 election. Majorities for Whig gubernatorial candidate Millard Fillmore numbered more than 38,000, making 1847 the high-water mark of Whig power in the state.

Unfortunately, Millard Fillmore did not run for governor of New York in 1847. In fact, no one did. Elections for governor – a two year term – were then held in the autumn of even years, with the governor taking office the following January. John Young had been elected governor in the fall of 1846 and assumed office in January 1847. The next gubernatorial election would not be held until the fall of 1848.

Millard Fillmore did run for state office in the autumn of 1847. But he ran for and was elected to the office of Comptroller. The Comptroller's office was the most important position contested that year, so he in effect headed the Whig ticket. Professor East must have momentarily forgotten that the head of the ticket was not running for governor.

Martha Washington, Hot Babe

This is really cool. Michael J. Deas portrays Martha in her 20s.

"One or the other it must be; it cannot be both"

Preston King seems to embody the mysterious Barnburner-Free Soil connection. A hard-money, anti-bank, anti-monopoly Democrat who represented a hardscrabble, largely rural constituency from the far northern Passed-Over reaches of New York, King evolved into an economic Radical and Barnburner. At the same time, King increasingly came to believe that slaveholders were dominating his national party, and to perceive the spread of slavery as a threat to the ability of his free farmer constituents to settle the west.

Jonathan H. Earle reports that King developed “repugnance” to slavery by late 1844 or early 1845:

When annexation (with Polk’s election, a fait accompli) came up, leading Van Burenites and future Wilmot Proviso supporters George Rathbun, Lemuel Stetson, and Preston King spoke out forcefully against Texas. King, for one, was startled at the intensity of his own feelings on the matter: “I was . . . surprised at my own repugnance to Texas on the single point of slavery. The southerners do not want Texas without slavery – I would take Texas tonight without slavery . . ..” King and twenty-six other Van Buren Democrats (all fourteen from New York) risked being branded as hypocrites and defectors and voted against Texas annexation.

Jumping forward two years, it was King who re-introduced the Wilmot Proviso, four months after it died at the end of the last Congress. According to Professor Earle, King’s speech was “reprinted and distributed throughout the North, and even prompted President Polk

to confide to his diary that “the slavery question is assuming a fearful and most important aspect. The movement of Mr. King today, if persevered in, will be attended with terrible consequences to the country and cannot fail to destroy the Democratic party, if it does not ultimately threaten the union itself.”

I therefore thought I’d take a look at Representative King’s speech.

To begin at the beginning, on Tuesday December 29, 1846, Representative King “gave notice that he would”

introduce “a bill making further provision for the expenses attending the intercourse between the United States and foreign nations,” being the bill known as the $2,000,000 bill, which passed the House of Representatives at the close of the last session, and lost in the Senate.

Representative King attempted to introduce his bill on Monday January 4, 1847. It proposed to appropriate $2MM “to enable the President to conclude a treaty of peace with the Republic of Mexico.” Section 2 substantially repeated the substance of the Wilmot Proviso:

And be it further enacted, That there shall be neither slavery nor involuntary servitude in any territory which shall hereafter be acquired by or be annexed to the United States, otherwise than in the punishment of crimes whereof the party shall have been duly convicted. Provided always, That any person escaping into the same from whom labor or service is lawfully claimed in any one of the United States, such fugitive may be lawfully reclaimed and conveyed out of said territory to the person claiming his or her service.

Due to procedural maneuvering, the formal introduction was delayed by a vote of 88-89.

The next day, Tuesday January 5, 1847, Rep. King obtained the floor in order to “make a personal explanation” concerning the “bill which I yesterday asked leave to introduce.” An article had appeared in the morning newspaper that “mistakes the purpose of the bill.” King desired “briefly to state the reasons and opinions which induced me to propose the measure.” Interestingly, King specifically explained that he had written out and was reading his comments “that I may not be misunderstood.”

King began by explaining that his actions were “governed solely by the desire to bring the subjects of the bill to the early consideration and action of the House.” He suspected that some members of the House were hoping the “Wilmot proposition” issue would just go away:

I will frankly say, that if I had not supposed that there was a disposition in some quarters silently to give the free principle of the Wilmot proposition the go-by, and, by smothering and avoiding action upon it, to give further extension to the dominions of slavery at the expense of free territory, I should not have brought forward this bill.

He was, King made clear, in favor of territorial expansion. But the territory that should, would and must be taken from Mexico “should be free.” “The time has come when this Republic should declare by law that it will not be made an instrument to the extension of slavery on the continent of America.”

“Every inch of Texas was yielded to slavery,” King complained, and yet the South was still not satisfied. Now the representatives of the slave states desired “to carry it where it does not now exist.”

The choice, King maintained, was between free territory and labor or slave labor. Using language that prefigured Seward’s “irrepressible conflict” and Lincoln’s “house divided,” King argued that “it must be” “[o]ne or the other”; “it cannot be both.”

Shall the territory now free which shall come to our jurisdiction be free territory, open to settlement by the laboring man of the free States, or shall it be slave territory given up to slave labor? One or the other it must be; it cannot be both. The labor of the free white men and women, and of their children, cannot and will not eat and drink, and lie down, and rise up with the black labor of slaves; free white labor will not be degraded by such association. If slavery is not excluded by law, the presence of the slave will exclude the laboring white man. The young men who went with their axes into the forests, and hewed out of the wilderness such States as Ohio and Indiana and Michigan and Illinois and Iowa and Wisconsin, would never have consented, in the workshops or in the field, to be coupled with negro slaves.

Professor Earle observes:

King’s mention of western pioneers was no accident. In what would become a mainstay of Free Soil rhetoric (borrowed from anti-rent and land-reform journals) antislavery Democrats like King referred again and again to slaveholders choking off potential immigration to new and old territories. Arguments such as these were especially powerful in rural New York. Many of the farmers in King’s district (and those surrounding it as well) had sons and daughters moving westward at a truly furious pace . . .. Dozens of King’s and [Silas] Wright’s own relatives in the North Country had already moved or were planning to leave soon.

About the illustration:

A particularly well-drawn satire on the three major presidential contenders for 1848, (left to right) Zachary Taylor, Martin Van Buren and Lewis Cass. Of the three the artist seems to favor Van Buren, the "Barnburner" candidate, who sits on a stool milking the cow which the others try in vain to move in opposite directions. Taylor, who tugs at the tail of the animal, is called a "No Party Man" because of his continued refusal to commit to a party ideology. Cass, the "Hunker" or conservative Democrat, strains at the cow's horns. Van Buren: "I go in for the free soil. Hold on Cass, dont let go Taylor, (That's the cream of the Joke)." Van Buren was the candidate of a coalition, between Barnburner Democrats and Liberty and Whig party abolitionists, called the Free Soil party. Zachary Taylor: "I don't Stand on the whig Platform 'I ask no favor and shrink from no Responsibility.'" Lewis Cass: "Matty is at his old tricks again, and going in for the Spoils old Zack, and myself will get nothing but skim milk."

The Barnburners and the Proviso

The preponderance of New York Barnburners present at the [Wilmot] proviso's creation . . . is worth noting here. Six of the eleven instigators of the proviso . . . were either New Yorkers or members of Barnburner leader Preston King's mess in Washington. Each was a Van Buren Democrat.

Jonathan H. Earle, Jacksonian Democracy & the Politics of Free Soil, 1824-1854.

Next, we'll take a closer look at Mr. King.

"Shinsplints" and the Canton Resolutions

Jonathan H. Earle explains that, during the 1820s and into the 1830s, the relatively isolated and economically tenuous counties comprising the Passed-Over District in New York State (see the map at the top of my last post) became bastions of hard-money, anti-Bank, anti-monopoly Democracy:

Upstate hard-money ideologues represented the radical fringe of the state Democratic Party, at least on economic issues. Regency radicals in St. Lawrence County [Silas Wright’s home county, in the far north by the Canadian border], for example, vociferously blamed the Bank of the United States and paper currency for ruining farmers there in 1834, as the central bank called in its loans and caused a sharp panic in the countryside. Notes issued by local banks quickly became known as “shinplaster” – worth less than the paper they were printed on. In the wake of this panic, Wright’s North Country protégé Preston King authored a series of radical resolutions in 1834 [known as the Canton Resolutions] . . . calling for the immediate abolition of all bank notes less than $20 . . . in order to give “the yeomanry of the land a reacquaintance with constitutional hard money currency” and put an end to the “immense moneyed power [able] to oppress the common man . . ..”

The Burned-Over District vs. The Passed-Over District

In Jacksonian Antislavery and the Politics of Free Soil, 1824-1854 – which I’m enjoying tremendously – Jonathan H. Earle makes clear that the active Free Soil counties in New York State were very different, physically and economically, from the Whig-oriented counties of the Burned-Over District:

[T]he remote, agricultural New York communities that became bulwarks of Free Soil . . . barely resembled the middle-class, evangelical, and Whig locales of the famed Burned-Over District covering the western parts of the state. Many of them, in fact, were isolated and economically stagnant – more passed-over than burned-over.

. . . Each of [the Free Soil] counties was rugged, densely wooded, and among the last be settled in the state. Shallow, acidic soil made traditional staple agriculture difficult . . .. As the crow flies, some of these communities were quite close to the bustling Erie Canal, but the famed “artificial river” might as well have been a thousand miles away. In fact, its completion in 1825 actually made matters worse for farmers removed from the canal district.

The map at the top of this post is adapted from one at page 170 of Professor Earle’s book. The Burned-Over District is shown in yellow; the Passed-Over Counties, which registered a majority or plurality for the Free Soil Party in 1848, are shown in red. The only county that falls into both camps, Wayne County, appears in gray. Although I have not drawn it in, the Erie Canal begins north of Buffalo and proceeds generally east through the northern tier of Burned-Over counties, then across the south-eastern edge of Oswego County, then across the lower portions of Oneida and Herkimer Counties, and thence on the Hudson River.