"It is a decision not made by the General Government"

Henry Clay's 1st compromise resolution advocated the admission of California as a state with or without slavery. The text of the resolution, and my review of Clay's comments on it in his speech of January 29, 1850 may be found here.

On February 5, 1850, Clay expanded substantially on his comments a week earlier. In particular, he acknowledged what everyone knew – that if admitted California would be a free state – and took head on complaints by “gentlemen who come from the slaveholding States” “that the North gets all that it desires.”

Clay did not deny this, but he did deny that this result constituted a “concession” by the south. There was no cause to complain because California as a state, not Congress, had reached the decision. This principle, that the people in the states had the power to decide whether to be slave or free, was one that the south regularly espoused:

[B]ut by whom does [the North] get [what it desires]? Does it get it by any action of Congress? If slavery be interdicted in California, it is done by Congress, by this Government? No sir; the interdiction is imposed by California herself. And has it not been the doctrine of all parties, that when a State is about to be admitted into the Union, that State has a right to decide for itself whether it will or will not have within its limits slavery?

Clay cited the Missouri Compromise as precedent. Clay made sure to note that he had been among those “in favor of the admission of Missouri” who “contended that, by the Constitution, no such restriction [on the State after admission] could be imposed.” The same principle applied now, Clay maintained.

Then, if in this struggle of power and empire between the two classes of States a decision of California has taken place adverse to the wishes of the southern States, it is a decision not made by the General Government; it is a decision respecting which they cannot complain to the General Government. It is a decision made by California herself, and which California had incontestably a right to make under the Constitution of the United States.

There is, then, in that first resolution, according to the observation which I made some time ago, a case where neither party concedes; where the question of slavery, either of its introduction or interdiction, is silent as respects the action of this Government; and if it has been decided, it has been decided by a different body – by a different power – by California herself, who had a right to make that decision.

"Two or three general purposes which seemed to me most desirable . . . to accomplish"

Before turning to his individual resolutions, Henry Clay first explained to the Senate on February 5, 1850 the “two or three general purposes which seemed to me most desirable, if possible, to accomplish.”

The first such purpose “was to settle all the controverted questions arising out of the subject of slavery.” Here Clay took a swipe at president Zachary Taylor, whose plans to admit California and the former Mexican territories as states did not deal with other matters such as the Texas-New Mexico border, the District of Columbia, fugitive slaves and the interstate slave trade:

[I]t seemed to me to be doing very little if we settled one question and left other disturbing questions unadjusted. It seemed to me to be doing little if we stopped one leak only in the ship of State, and left other leaks capable of producing danger, if not destruction, to the vessel. I therefore turned my attention to every subject connected with the institution of slavery, and out of which controverted questions have sprung, to see if it were possible or practicable to accommodate and adjust the whole of them.

Clay's second principle was that neither the north nor the south should “sacrifice . . . any great principle”:

Another principal object which attracted my attention was, to endeavor to frame such a scheme of accommodation as that neither of the two classes of States into which our country is unhappily divided should make a sacrifice of any great principle. I believe, sir, that the series of resolutions which I have had the honor of presenting to the Senate accomplishes that object.

Clay maintained that his resolutions required concessions by both sides - “not of principle, not of principle at all, but of feeling, of opinion, in relation to matters in controversy between them.” “[N]either party makes any concessions of principle at all, though the concessions of forbearance are ample.”

Clay's last purpose or principle was extremely odd: it focused on the extent of the concessions that the South would receive from the north:

In the next place, in respect of the slaveholding States, there are resolutions making concessions to them by the class of opposite States, without any compensation whatever being rendered by them to the non-slaveholding states.

The principles are noteworthy for what they omitted. First, there was no counterbalancing principle emphasizing how much the north would be receiving from the south. Even more jarring was the lack of the fundamental principle of equality of burden. Although Clay had mentioned earlier in his remarks that “concessions of forbearance" - presumably by both sides - "are ample,” he pointedly failed to claim that the amount or extent of concessions were equal on both sides.

Clay had explicity stated in his speech on January 29, 1850 that he believed "this project contains about an equal amount of concession and forbearance on both sides." His failure to reaffirm this fundamental idea, together with his final, one-sided declaration about the extent of northern concessions, strongly suggest that, in the intevening week, Clay had become significantly more concerned about southern objections to his plan. He was apparently willing to risk northern complaints about inequality of burden in order to try to diffuse southern complaints that he feared might prove fatal.

I, at least, suspect that this accounts for Clay's somewhat obscure differentiation between "concessions of principle" and "concessions of forbearance." The north and the south were to be treated equally in that neither would be required to make concessions of the former sort. But, Clay implied, "concessions of forbearance" would fall more heavily on the north.

Clay then transitioned to an examination of his resolutions one by one:

I think every one of these characteristics which I have assigned to the measures which I propose is susceptible of clear, satisfactory demonstration, by an attentive perusal and critical examination of the resolutions themselves. Let us take up the first, sir.

Unbelievable Cat House from Japan

Not my typical fare on these pages, but as a cat lover I couldn't pass by this article without pointing it out: Unbelievable Cat-friendly House Design from Japan.

H/t Instapundit.

Dithering

This article will no doubt set Dimitri's teeth on edge, combining as does his favorite general, George Brinton McClellan, and his least favorite author, Doris Kearns Goodwin (as well as Abraham Lincoln and the One):

On the Charlie Rose Show, presidential biographer Doris Kearns Goodwin said President Obama mustn't be rushed to make a decision. After all, she noted, Lincoln waited until the right time to make the Emancipation Proclamation. I'm curious how a Pulitzer-Prize winning historian who has written a fantastic book on Lincoln's political genius would make such a poor analogy -- not merely because of the incongruity of the conflicts, but because it's a tragic example of dithering that cost lives.

The Emancipation Proclamation did indeed require good timing, thus it followed on the heels of the victory of the Battle of Antietam. But Lincoln had already set his mind on freeing the slaves -- the wording and political support merely needed to be solidified. He already knew of his strategy. The person who was causing the delay was in fact General George B. McClellan, whose willingness to delay action and refusal to do so allowed enemy forces to prepare and react.

McClellan's, shall we call it, dithering, caused Antietam to become the bloodiest day of the Civil War, in fact, the single bloodiest day in American military history. General Lee had said of him, "He is an able general but a very cautious one. His army is in a very demoralized and chaotic condition, and will not be prepared for offensive operations—or he will not think it so—for three or four weeks."

"Repress the ardor of these passions"

In his speech of February 5, 1850, after identifying “passion, passion – party, party – and intemperance” as the source “of the great questions which unhappily divide our distracted country,” Henry Clay begged his fellow Senators to step back from the abyss and listen to reason:

All is now uproar, confusion, menace to the existence of the Union and to the happiness and safety of the people. I implore Senators – I entreat them, by all that they expect hereafter, and by all that is dear to them here below, to repress the ardor of these passions, to look at their country at this crisis – to listen to the voice of reason, not as it shall be attempted to be uttered by me, for I am not so presumptuous as to indulge the hope that anything I can say shall deserve the attention I have desired, but to listen to their own reason, their own judgment, their own good sense, in determining what is best to be done for our country in the actual posture in which we find it.

Clay then moved toward consideration of his own “scheme” while at the same time disavowing any attempt to impose a particular plan by fiat. Clay's resolutions were the result of his attempt to come up with “some mode of accommodation, which should once more restore the blessings of concord, harmony, and peace to this great country.” If his colleagues could improve on them, Clay urged them to do so:

[A]llow me to say to honorable Senators, that if they find in it [Clay's plan] anything which is worthy of acceptance, but is susceptible of improvement by amendment, it seems to me that the true and patriotic course for them to pursue is, not to denounce it, but to improve it; not to reject, without examination, any project of accommodation, having for its object the restoration of harmony in this country, but to look at it, and see if it be susceptible of alteration or improvement, so as to accomplish the object which I indulge the hope is common to all and every one of us, to restore peace, and quiet, and harmony, and happiness to this country.

About the illustration, published in New York in 1851:

A patriotic allegory illustrating the cover of sheet music for a song composed by William Vincent Wallace with words by George P. Morris. The theme of the indissoluble union of North and South is evoked here, no doubt in the context of debate over the Compromise of 1850. The artist expresses the concept by two female figures, crowned with diadems, standing together on a globe and holding the staff of a large American flag. The arm of the North (left) encircles the neck of the maiden representing the South. Before them is a large eagle, his talons gripping thunderbolts and his breast emblazoned with the word "Union." The eagle's wings spread to enframe the lower half of the oval picture. The upper half is ringed with stars. Into the distance stretch two great rivers, past large cities, toward rising mountains.

"Calm the violence and rage of party"

On Tuesday February 5, 1850 – one week after he had introduced his resolutions – Henry Clay again took the Senate floor to present a more extended defense of his proposed “amicable arrangement of all questions in controversy between the Free and the Slave States, growing out of the subject of Slavery."

The Senate chamber was packed. As I described some time ago in this post, people eager to hear the Great Pacificator speak were standing in the aisles and galleries. The crowds extended into the entranceway and halls outside the chamber. The resulting pushing and shoving resulted in an interruption to Clay's speech immediately after his opening remarks, discussed below.

Clay's speech extended over two days and takes up more than twelve pages of small print in the Congressional Globe, so I am going to try to be selective. But the opening paragraphs are worth a separate post.

Henry Clay opened his effort by addressing the President of the Senate – none other than Millard Fillmore:

Mr. President, never, on any former occasion, have I risen under feelings of such deep solicitude. I have witnessed many periods of great anxiety, of peril, and of danger even to the country; but I have never before arisen to address any assembly so oppressed, so appalled, so anxious.

And, sir, I hope it will not be out of place to do here what again and again I have done in my private chamber – to implore of Him who holds the destinies of nations and individuals in his hands to bestow upon our country his blessings – to bestow upon our people all his blessings – to calm the violence and rage of party – to still passion – to allow reason once more to resume its empire. And may I now ask of Him, to bestow upon his humble servant, now before Him, the blessings of his smiles, of strength, and of ability, to perform the work which lies before him.

Sir, I have said that I have witnessed other anxious periods in the history of our country; and if I were to mention – to trace to their original source – the cause of all our present dangers and difficulties, I should ascribe them to the violence of party spirit. We have had testimony of this in the progress of this session, and Senators, however they may differ in other matters, concur in acknowledging the existence of that cause in originating the unhappy differences which prevail throughout the country upon this subject of the institution of slavery.

Parties, in their endeavors to obtain the one the ascendency over the other, catch at every passing and floating plank, in order to add strength and power to themselves. We have been told by two honorable Senators, [John P. Hale of New Hampshire and Samuel S. Phelps of Vermont] that the parties at the North have each in its turn, wooed and endeavored to obtain the assistance of a small party called Abolitionists, in order that the scale in its favor might preponderate over its adversaries. Let us look wherever we may, we see too many indications of the existence of the spirit and intemperance of party.

It's hard to know what to make of Clay's diagnosis that “the violence of party spirit” was the “originating” “cause” of the country's differences over slavery. While it is true that rivalry between the Democrats and Whigs sometimes heightened tensions over slavery, it is hard to believe that so astute a student of the American political scene as Henry Clay believed that the Second Party System lay at the heart of the problem. The Wilmot Proviso had revealed sectional fissures that threatened to transcend party differences and to create a new alignment that would overwhelm party identity.

Did Henry Clay really believe, then, that parties were the core problem? I suppose it is possible. The alternative – that parties could not control the discord – might simply have been too frightening to contemplate. But it is also possible to see this as another example of the indirection that I have detected in Clay's method of argument. By characterizing the problem as one of party, perhaps Clay was hoping to remind his auditors that their traditional party affiliations, and not their sectional affiliations, should define their identities. Those party affiliations were or should be defined by their positions on issues such as a national bank, tariffs and internal improvements. It was incumbent on members of both parties, which transcended section, to insure that sectional differences did not make them irrelevant.

"And what, Mr. President, do you suppose it is?"

Henry Clay concluded his speech of January 29, 1850 introducing his compromise resolutions by stirring the patriotic feelings of his auditors. He did so by invoking that great symbol of the Union, George Washington. And he invoked Washington by “relating an incident, a thrilling incident” that was both improbable and calculated to encourage his listeners to suspend their disbelief.

That very morning, Clay related, a man came to his room. Unaware that Clay was just about to give a speech seeking to save the Union, the man offered him an object that he described as “a precious relic.”

He then drew out of his pocket, and presented to me, the object which I now hold in my hand.

Here Clay dramatically thrust out his hand. Addressing Vice President Millard Fillmore, Clay continued:

And what, Mr. President, do you suppose it is?

It is a fragment of the coffin of Washington – a fragment of that coffin in which now repose in silence, in sleep, and speechless, all the earthly remains of the venerated Father of his Country.

Was it portentious that it should have thus been presented to me? Was it a sad presage of what might happen to that fabric which Washington's virtue, patriotism, and valor established?

No, sir, no. It was a warning voice, coming from the grave to the Congress now in session to beware, to pause, to reflect before they lend themselves to any purposes which shall destroy that Union which was cemented by his exertion and example.

Sir, I hope an impression may be made on your mind, such as that which was made on mine by the reception of this precious relic.

A brief coda followed:

And, in conclusion, I now ask every Senator, I entreat you, gentlemen, in fairness and candor, to examine the plan of accommodation which this series of resolutions proposes, and not to pronounce against them until convinced after a thorough examination.

This site suggests it is conceivable that Clay was given a fragment of George Washington's coffin – or at least that such fragments or purported fragments existed and were in circulation:

George Washington Purported Coffin Fragment and Memorabilia. Including a photograph of his tomb, a colored engraving, card with Washington's coat of arms, overall: 15 1/2" x 16" (sight), matted together and framed, Together With a photograph of a group outside his tomb, 8" x 10". When George Washington was originally buried, his body was placed in a wooden casket which was then placed in a closed vault. In 1837, his body was removed from the wooden casket and re-interred in a new marble sarcophagus. The exhumation was witnessed by a number of neighbors and celebrities of the day. The old wooden casket was broken into pieces and presented to those in attendance. This piece, measuring 1 1/2 " x 3/4 " x 3/4 ", is attached to a newspaper clipping (c. 1837) and is mounted with prints of Washington and his gravesite. The newspaper article reads: Some of Washginton's Coffin [From the Milledgeville (Ga.) Union and Recorder]." We held in our hand yesterday a piece of the black walnut coffin in which George Washington, the "Father of His Country" was buried. It was in the possession of H.V. Sanford and about the size of a woman's hand. Mrs. General John W.W. Sanford, formerly of this society, was a lady of great refinement and cultivation, a great traveler, and of fine education. She was present when Washington's coffin was exhumed and procured several pieces of the coffin much larger then [sic] the one handled yesterday, which are now in the possession of a sister of H.V. Sanford. The pieces are about half an inch in thickness, and on account of age, and the many years that they were in the ground, are very light."

"Whose house is that?"

After outlining his compromise resolutions individually on January 29, 1850, Henry Clay then discussed his proposed “scheme of arrangement and accommodation” as a whole. Clay maintained that his “project contains about an equal amount of concession and forbearance on both sides.” His remarks, however, were addressed almost exclusively to those “[a]t the North.”

It is not clear (to me at least), however, that this means that Clay anticipated stiffer resistance to his proposals from northerners than from southerners. Clay positioned himself as a southerner attempting to explain to northerners why concessions on slavery-related issues were matters of life and death to southerners living amidst slaves. It strikes me that this might well have been Clay’s way of trying to convince southerners that his proposals did offer them adequate protection.

In making his appeal, Clay contrasted the importance of slavery to the north and to the south. To the north, Clay maintained, antislavery was “[a]n abstraction, a sentiment.” To northerners, the issue was “sentiment, sentiment, sentiment alone”, “a sentiment without sacrifice, a sentiment without danger, a sentiment without hazard, without peril, without loss.”

But to the south, slavery was central to “the social fabric, life, and all that makes life dear”:

In the first place, sir, there is a vast and incalculable amount of property to be sacrificed, and to be sacrificed, not by your [northerners] sharing in the common burdens, but exclusive of you. And this is not all. The social intercourse, habit, safety, property, life, everything, is at hazard in a greater or less degree in the slave States.

To the south, northern threats to slavery were a matter of life and death. Clay conjured up lurid images of death and destruction in the south while northerners remained “safely housed, enjoying all the blessings of domestic comfort, peace, and quiet in the bosom of their own families”:

Behold, Mr. President, that dwelling-house now wrapped in flames. Listen, sir, to the rafters and beams which fall in succession, amid the crash; and the flames ascending higher and higher as they tumble down. Behold those women and children who are flying from the calamitous scene, and with their shrieks and lamentations imploring the aid of high Heaven.

Whose house is that? Whose wives and children are they? Yours in the free States? No. You are looking on in safety and security, whilst the conflagration which I have described is raging in the slave States, and produced, not intentionally by you, but produced from the inevitable tendency of the measures which you have adopted, and which others have carried far beyond what you have wished.

"Congress has no power to prohibit or obstruct . . ."

The eighth and final compromise resolution that Henry Clay introduced on January 29, 1850 is the least well known. It generally gets only a passing reference, at most. This is, presumably, because it neither proposed nor resulted in the passage of legislation. It merely declared that Congress had no power to “prohibit or obstruct” the interstate slave trade:

8th. Resolved, That Congress has no power to prohibit or obstruct the trade in slaves between the slaveholding States; but that the admission or exclusion of slaves brought from one into another of them, depends exclusively upon their own particular laws.

The resolution was presumably intended to reassure the south that, despite the 5th and 6th resolutions (which held that Congress had the power to regulate the slave trade in the District of Columbia and strongly implied that Congress had the power to abolish slavery there as well), Clay was not suggesting that Congress had similar power over the interstate slave trade under the Commerce Clause.

Clay's remarks on the resolution were brief. The resolution, he declared, “merely asserts a truth, established by the highest authority of law in this country, and in conformity with that decision I trust there will be one universal acquiescence.” Indeed, Clay maintained, the resolution was probably unnecessary,

but that I thought it might be useful in treating of the whole subject, and in accordance with the practice of our British and American ancestors, occasionally to resort to great fundamental principles, and bring them freshly and manifestly before our eyes, from time to time, to avoid their being violated upon any occasion.

Clay's allusion to “the highest authority of law in this country” must be a reference to the Supreme Court. He seems to have had a particular decision in mind, but I don't know what it was. If you do, please enlighten me in the comments!

Compromise and Rotten Compromises

Since I'm hip-deep in a series of posts about the Compromise of 1850 and the Great Compromiser himself, I thought it was appropriate to report that I just ran across a reference (at Lawrence Solum's Legal Theory Blog) to a book entitled On Compromise and Rotten Compromises. Here's the description:

When is political compromise acceptable - and when is it fundamentally rotten, something we should never accept, come what may? What if a rotten compromise is politically necessary? Compromise is a great political virtue, especially for the sake of peace. But, as Avishai Margalit argues, there are moral limits to acceptable compromise even for peace. But just what are those limits? At what point does peace secured with compromise become unjust? Focusing attention on vitally important questions that have received surprisingly little attention, Margalit argues that we should be concerned not only with what makes a just war, but also with what kind of compromise allows for a just peace.

Examining a wide range of examples, including the Munich Agreement, the Yalta Conference, and Arab-Israeli peace negotiations, Margalit provides a searching examination of the nature of political compromise in its various forms. Combining philosophy, politics, and history, and written in a vivid and accessible style, On Compromise and Rotten Compromises is full of surprising new insights about war, peace, justice, and sectarianism.

I haven't read the book (and almost certainly won't) and know nothing about the author. But if you read it and apply the author's analysis to the Compromise of 1850, let me know.

For my thoughts on whether the Compromise of 1850 was a Good Thing or a Bad Thing, see here

About the illustration:

An illustrated sheet music cover for an abolitionist song composed by Jesse Hutchinson, Jr. The song is dedicated to antislavery editor Nathaniel Peabody Rogers, "As a mark of esteem for his intrepidity in the cause of Human Rights." It is illustrated with an allegory of the triumph of abolitionism. In a landscape a railroad car, "Immediate Emancipation," is drawn by a locomotive named "Liberator" and followed by another locomotive, the "Repealer," which pulls a second car "Liberty Votes and Ballot Boxes." The "Liberator" was the name of a prominent antislavery newspaper published in Boston by William Lloyd Garrison. "Repealer" probably refers to the Irish insurgent movement in support of the repeal of the Legislative Union, a cause with which many abolitionists in the United States were allied. Flags bearing the names of two other abolitionist publications, the "Herald of Freedom" and "American Standard" (i.e., Rogers's" National Anti-slavery Standard), fly from the "Emancipation" car. The trains approach a bend in the track, nearing a station where a number of people gather to welcome them. Beyond the station is a church. In the distance two other trains, one marked "Van" and the other "Clay," crash and their passengers flee. These allude to Democrat and Whig presidential hopefuls Martin Van Buren and Henry Clay. The reference to Van Buren suggests that the music-sheet appeared before the Democratic convention in May [1844], when James K. Polk, not Van Buren, received the party's presidential nomination.

"I have not now occasion to add another word"

In his remarks of January 29, 1850, Henry Clay next turned to the issue of fugitive slaves. His seventh resolution provided:

7th. Resolved, That more effectual provisions ought to be made by law, according to the requirement of the Constitution, for the restitution and delivery of persons bound to service or labor in any State, who may escape into any other State or Territory in the Union.

Although the law that would eventually result would become flashpoint of conflict, Clay's statement in support of his resolution was exceedingly brief. The resolution related “to a subject embraced in a bill now under consideration by the Senate.” “I have not now occasion to add another word.”

About the illustration:

A sheet music cover illustrated with a portrait of prominent black abolitionist Frederick Douglass as a runaway slave. Douglass flees barefoot from two mounted pursuers who appear across the river behind him with their pack of dogs. Ahead, to the right, a signpost points toward New England. The cover's text states that "The Fugitive's Song" was "composed and respectfully dedicated, in token of confident esteem to Frederick Douglass. A graduate from the peculiar institution. For his fearless advocacy, signal ability and wonderful success in behalf of his brothers in bonds. (and to the fugitives from slavery in the) free states & Canadas by their friend Jesse Hutchinson Junr." As the illustration suggests, Douglass himself had escaped from slavery, fleeing in 1838 from Maryland to Massachusetts. He achieved considerable renown for his autobiography "Narrative of the Life of Frederick Douglass," first published in 1845. The Library's copy of "The Fugitive's Song" was deposited for copyright on July 23, 1845. An earlier abolitionist song composed by Hutchinson, "Get Off the Track!" (no. 1844-14), also used a cover illustration to amplify its message.

"Who is there who is not shocked at its enormity?"

In his remarks of January 29, 1850, Henry Clay next introduced his fifth and sixth compromise resolutions, which, “like the third and fourth [the two Texas resolutions], are somewhat connected together.” These concerned slavery and the slave trade within the District of Columbia:

5th. Resolved, That it is inexpedient to abolish slavery in the District of Columbia, whilst that institution continues to exist in the State of Maryland, without the consent of that State, without the consent of the people of the District, and without just compensation to the owners of slaves within the District.

6th. Resolved, That it is expedient to prohibit within the District the slave-trade, in slaves brought into it from States or places beyond the limits of the District, either to be sold therein a merchandise, or to be transported to other markets without the District of Columbia.

Before turning to Clay's remarks, a couple of points are worth noting. First, several aspects of the Fifth resolution were bound to be controversial. Northerners, of course, would be unhappy that slavery was proposed to be retained in the District. But southerners would be unhappy too. The major problem was that the resolution described abolition in the District as “inexpedient” but possible under certain conditions. That is, it conceded that Congress had the power under the Constitution to abolish slavery. In addition, some might reasonably ask – What happened to Virginia? The resolution listed the consent of Maryland as a prerequisite to abolition in the District. Why not Virginia?

Likewise, the sixth resolution was subject to attack from both sides. Southerners would complain that Congress had no power to limit the slave trade at all. But northerners would no doubt focus on the extremely limited nature of the restriction. Residents could continue to buy and sell slaves in the District. The resolution prohibited, in effect, only the operations of commercial slave traders.

Clay, presumably concerned about southern objections, emphasized the limited nature of the restriction in his speech. To assuage northern concerns, he disingenuously tried to characterize the exemption of individual sales as a humanitarian provision. At the same time, he attempted both to enlist southern support and reassure northerners by affirming that southerners detested the slave trade every bit as much as northerners did (citing none other than his arch enemy John Randolph of Roanoke):

I do not mean by that [the slave trade] the alienation and transfer of slaves from the inhabitants within this District – the sale by one neighbor to another of a slave which the one owns and the other wants, that a husband may perhaps be put along with his wife, or a wife with her husband.

I do not mean to touch at all the question of the right of property in slaves amongst persons living within the District; but the slave trade to which I refer was, I think, pronounced an abomination more than forty years ago, by one of the most gifted and distinguished sons of Virginia, the late Mr. [John] Randolph [of Roanoke].

And who is there who is not shocked at its enormity? Sir, it is a great mistake at the North, if they suppose that gentlemen living in the slave States look upon one who is a regular trader in slaves with any particular favor or kindness. They are often – sometimes unjustly, perhaps – excluded from social intercourse. I have known some memorable instances of this sort.

Clay also referred indirectly to the justification he would likely provide for not including the consent of Virginia as a prerequisite to the abolition of slavery in the District: Virginia's portion of the District had been retroceded to it:

But, then, what is this trade? It is a good deal limited since the retrocession of the portion of the District formerly belonging to Virginia.

There are Alexandria, Richmond, Petersburg, and Norfolk south of the Potomac, and Baltimore, Annapolis and perhaps other ports north of the Potomac. Let the slave-dealer, who chooses to collect his slaves in Virginia and Maryland, go to these places; let him not come here and establish his jails and put on his chains, and sometimes shock the sensibilities of our nature by a long train of slaves passing through the avenue leading from this Capitol to the house of the Chief Magistrate of one of the most glorious Republics that ever existed.

Why should he not do it? Sir, I am sure I speak the sentiments of every Southern man, and every man coming from the slave States, when I say let it terminate, and it is an abomination; that there is no occasion for it; it ought no longer to be tolerated.

"For the sake of peace"

Henry Clay began his defense of his two Texas-related resolutions on January 29, 1850 by setting forth his views on Texas's extensive territorial claims. On the one hand, he maintained “that Texas has not a good title to any portion of what is called New Mexico.” On the other hand, the issue was not entirely clear. “I must say that there is a plausibility, to say the least of it, in the pretensions that she [Texas] sets up to New Mexico. I do not think they [arguments made by Texans] constitute or demonstrate the existence of good title, but a plausible one.”

What, then, did Clay propose? Paraphrasing his 3rd resolution, he briefly described the borders he recommended. These “embrac[ed] a vast country abundantly competent to form two or three States – a country which I think the highest ambition of her greatest men ought to be satisfied with as a State and a member of this Union.”

Perhaps because he knew that his definition of the borders would make Texas supporters unhappy, Clay moved on quickly to the payoff. He described his resolution proposing that the federal government “will provide for the payment of all that portion of the debt of Texas for which the duties received upon imports from foreign countries was pledged by Texas at a time when she had authority to make pledges.”

Although everyone knew that the amount that would be assumed was crucial, Clay denied it:

How much it will amount to I have endeavored to ascertain, but all the means requisite to the ascertainment of the sum have not been received, and it is not very essential at this time, because it is the principle and not the amount that is most worthy of consideration.

The proposal, Clay maintained, was “founded upon principles of truth and eternal justice.” Texas had invited loans to be made to her based upon representations that import duties would be “sacredly pledged” for their repayment. Upon annexation, “[t]he United States became the owners of that pledge and the recipient of all the duties payable in the ports of Texas.”

Now, sir, I do say that, in my humble judgment, if there be honor, or justice, or truth amongst men, we do owe to the creditors who thus advanced their money upon that pledge the reimbursement of that money, at all events to the extent that the pledged fund would have reimbursed it, if it had never been appropriated by us to our use.

In a small but significant way designed to bring joy to the ears of Texas creditors, Clay quickly modified the caveat in the last clause. After annexation and war, “it is impossible now to ascertain how much would have been received from that source by the State of Texas if she had remained independent.” Reimbursement should not, therefore, be limited to the amount of duties collected at Texas ports. The assumption should be that, had Texas remained independent, she would have collected such duties “as would have been adequate to the extinction of the debt to which I have referred.”

Clay then tied his two Texas resolutions together. Clay used his ringing, mesmerizing, room-filling baritone to urge “accommodation” “for the sake of peace”. Try reading his closing words on the Texas issues aloud:

But, sir, it is not merely in the discharge of what I consider to be a valid and legitimate obligation resting upon the United States to discharge the specified duty, it is not upon that condition alone that this payment is proposed to be made; it is also upon the further condition that Texas shall relinquish to the United States any claim that she has to any portion of New Mexico.

Now, sir, although, as I believe, she has not a valid title to any portion of New Mexico, she has a claim; and for the sake of that general quiet and harmony, for the sake of that accommodation which ought to be as much the object of legislation as it is of individuals in their transactions in private life, we may do now what an individual in analogous circumstances might do, give something for the relinquishment of a claim, although it should not be well founded, for the sake of peace.

It is therefore proposed – and this resolution does propose – that we shall pay the amount of the debt contracted by Texas prior to its annexation to the United States, in consideration of our reception of the duties applicable to the extinction of that debt; and that Texas shall also, in consideration of a sum to be advanced, relinquish any claim which she has to any portion of New Mexico.

Are There Two Bills of Rights?

I have occasionally on these pages wondered whether there are, or at least should be, two sets of the provisions of the Bill of Rights: one that is applied against the federal government, another against the states. Here's how I expressed it in a post entitled Are There Two Sets of Constitutional Amendments?:

Here's something I don't get. Can the same constitutional amendment mean one thing when applied to the federal government and another when applied to the states?

I use the Second Amendment only because it makes for a vivid and easily-understood example. Assume that the original understanding of the Second Amendment was that it did not create an individual right to bear arms (for convenience, I'll refer to the opposite of an individual rights model, a "militia model"). Assume further -- and I think that the legislative history clearly shows this to be the case -- that, in passing the Fourteenth Amendment, the 39th Congress believed that the Second Amendment did create an individual right to bear arms, and intended that the States should be barred from from infringing that individual right.

Logically, you would then have, in effect, two Second Amendments, or at least two versions of the Second Amendment. The first, applicable directly to the federal government, would convey no individual right to bear arms. The second, applicable to the States via the Privileges or Immunities Clause of the Fourteenth Amendment, would convey an individual right. In other words, the federal government would be free to restrict an individual's right to bear arms, but the States would not be free to do so.

I've never found a clear answer to my question, but a recent post by Prof. David Bernstein at Volokh at least suggests that I'm not crazy. Although the post focuses on a different issue (whether the Supremes will or should use the Privileges or Immunities Clause rather than the Due Process Clause for purposes of analyzing whether to incorporate the Second Amendment into the Fourteenth), in the course of it Prof. Bernstein refers to my issue.

I'm happy to report that Prof. Bernstein suggests that it may make good sense to apply a given Amendment differently against the states and the federal government, and he appears to agree that the Second Amendment may be the perfect example of where such a dichotomy is warranted by the historical evidence (emphasis added):

Second, I would explain why I think it’s important to decide this case on [Privileges or Immunities] grounds. My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government. This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means. Heller came out the “right” way, but by a bare 5–4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms. By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the [Privileges or Immunities] Clause protected an individual right to bear arms. In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.

"And running up that river to the southern line of New Mexico"

In his introductory remarks of January 29, 1850 on his compromise proposals, Henry Clay next unveiled both his third and fourth resolutions, “which having an immediate connection with each other, should be read and considered together.” Both concerned Texas: the third, its boundaries; the fourth, assumption of its debt:

3d. Resolved, That the western boundary of the State of Texas ought to be fixed on the Rio del Norte [the Rio Grande], commencing one marine league from its mouth, and running up that river to the southern line of New Mexico; thence with that line eastwardly, and so continuing in the same direction to the line established between the United States and Spain, excluding any portion of New Mexico, whether lying on the east or west of that river.

4th. Resolved, That it be proposed to the State of Texas that the United States will provide for the payment of all that portion of the legitimate and bona fide public debt of that State, contracted prior to its annexation to the United States, and for which the duties on foreign imports were pledged by the said State to its creditors not exceeding the sum of $_____ in consideration of the said duties so pledged having been no longer applicable to that object after the said annexation, but having thenceforward become payable to the United States; and upon the condition also that the said State of Texas shall, by some solemn and authentic act of her Legislature, or of a convention, relinquish to the United States any claim which it has to any part of New Mexico.

As the final clause of the fourth resolution makes clear, both resolutions in fact were designed to resolve the festering dispute over the border between Texas and New Mexico territory. As I have discussed before, Texas claimed that the Rio del Norte formed its western border all the way up into what is today the State of Colorado (and thence further north into what is now southern Wyoming). This area encompassed a large portion of New Mexico territory, including virtually all of the territory's populated areas.

Before examining Clay's discussion of these points, I'd like to return to a topic I've mentioned before: the location of Clay's proposed boundary. In particular, in an earlier post I noted that uncertainty and disagreement existed concerning what Clay meant, or thought he meant, when he referred to "the southern line of New Mexico." Some assert, and I tentatively endorsed the idea that, Clay must have believed that the southern boundary of New Mexico lay far north of its actual location. I'm now having doubts about that conclusion.

Article V of the Treaty of Guadalupe Hidalgo described the boundary between the United States and Mexico as follows (emphasis added):

The boundary line beween the two Republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence, westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence, northward, along the western line of New Mexico, until it intersects the first branch of the river Gila; (or if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same); thence down the middle of the said branch and of the said river, until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean.

The southern and western limits of New Mexico, mentioned in the article, are those laid down in the map entitled "Map of the United Mexican States, as organized and defined by various acts of the Congress of said republic, and constructed according to the best authorities. Revised edition. Published at New York, in 1847, by J. Disturnell," of which map a copy is added to this treaty, bearing the signatures and seals of the undersigned Plenipotentiaries. And, in order to preclude all difficulty in tracing upon the ground the limit separating Upper from Lower California, it is agreed that the said limit shall consist of a straight line drawn from the middle of the Rio Gila, where it unites with the Colorado, to a point on the coast of the Pacific Ocean, distant one marine league due south of the southernmost point of the port of San Diego, according to the plan of said port made in the year 1782 by Don Juan Pantoja, second sailing-master of the Spanish fleet, and published at Madrid in the year 1802, in the atlas to the voyage of the schooners Sutil and Mexicana; of which plan a copy is hereunto added, signed and sealed by the respective Plenipotentiaries.

In order to designate the boundary line with due precision, upon authoritative maps, and to establish upon the ground land-marks which shall show the limits of both republics, as described in the present article, the two Governments shall each appoint a commissioner and a surveyor, who, before the expiration of one year from the date of the exchange of ratifications of this treaty, shall meet at the port of San Diego, and proceed to run and mark the said boundary in its whole course to the mouth of the Rio Bravo del Norte. They shall keep journals and make out plans of their operations; and the result agreed upon by them shall be deemed a part of this treaty, and shall have the same force as if it were inserted therein. The two Governments will amicably agree regarding what may be necessary to these persons, and also as to their respective escorts, should such be necessary.

The boundary line established by this article shall be religiously respected by each of the two republics, and no change shall ever be made therein, except by the express and free consent of both nations, lawfully given by the General Government of each, in conformity with its own constitution.

Henry Clay presumably had access to both the treaty and to a copy of the Disturnell map referenced in Article V. That map, a copy of which appears at the top of this post (click to enlarge) is quite clear as to where the southern border of New Mexico is. Consistent with the treaty, the maps shows that boundary as running slightly north of El Paso.

It is true that the map appears to be inaccurate in one respect. The map identifies the 32 degree north latitude line (which I have drawn in red on the Disturnell map). It shows the southern border of New Mexico (which I have drawn in blue on the Disturnell map) as lying somewhat north of 32 degrees north. Furthermore, it shows El Paso as lying north of 32 north latitude, but south of the southern border of New Mexico.

In fact, El Paso is slightly south of 32 degrees (according to this site, it is 31 degrees 48 minutes north).

Comparison with a contemporary map may make the slight discrepancy clearer. The northern border of west Texas, which is also the southern border of the State of New Mexico in that area is the 32 degrees north latitude line. El Paso lies just south of that line. The Disturnell map shows the 32 degrees north latitude line just south of El Paso.

This discrepancy, even if noticed, could hardly have confused Henry Clay (or anyone else) into thinking that "the southern line of New Mexico" lay at 34 degrees north latitude (the northernmost line on both the Disturnell and the contemporary map). As you will see, that line lies far to the north, pretty close to the base of what is now the Texas Panhandle.

Obviously I cannot know what geographic misconceptions Henry Clay may have had. But it really stretches credibility to think that he was that far off.

Henry Clay: "[I]t is inexpedient . . ."

Several months ago I set out to review Henry Clay's speeches in the Senate on January 29, 1850 and February 5 and 6, 1850 in support of his compromise resolutions. I got no further than looking at the Great Pacificator's brief remarks concerning his first proposed resolution, advocating the admission of California as state “without the imposition by Congress of any restriction in respect to the exclusion or introduction of slavery,” Let's return to the Senate on January 29, 1850, almost one hundred sixty years ago.

Henry Clay next presented his second resolution, which concerned the erection of territorial governments in the territory acquired from Mexico (other than California) and the status of slavery there:

2nd. Resolved, That as slavery does not exist by law, and is not likely to be introduced into any of the territory acquired by the United States from the Republic of Mexico, it is inexpedient for Congress to provide by law, either for its introduction into or exclusion from any part of the said territory; and that appropriate Territorial governments ought to be established by Congress in all of the said territory, not assigned as to the boundaries of the proposed State of California, without the adoption of any restriction or condition on the subject of slavery.

Before turning to Clay's discussion and defense of the resolution, it is worth noting the conflicting positions and pressures the resolution attempted to mediate, which accounts for its delicate and defensive wording. On the one hand, the resolution repudiated the Wilmot Proviso and the northern position that any law establishing territorial governments had to include a provision that explicitly barred slavery.

In an attempt to placate northerners, the resolution argued, in effect, that the Proviso was unnecessary (“inexpedient”). Even without the Proviso, slavery would not enter the territories, for two basic reasons. First, Mexican law had outlawed slavery. Clay tacitly endorsed the theory that that law remained in effect until and unless it was explicitly superseded by a law affirmatively permitting slavery. Second, and perhaps more fundamentally, the laws of nature and geography made it exceedingly unlikely that slavery would take root in the arid southwest.

But these points, of course, highlighted the reasons that mere elimination of the Proviso would not satisfy some southerners. The legal point in particular was sure to rankle. If existing law already prohibited slavery in the southwest territories, then slavery could have a fair opportunity to gain a foothold there only if a new law superseded the old and explicitly permitted slavery. Simply eliminating the Proviso was a sham that deprived the South of its asserted right to an equal chance to settle in the territories.

It was on the horns of such dilemmas that any resolution concerning the territories was caught. Let us see now how Clay tried to walk the tightrope.

Clay's introductory discussion focused primarily on northern supporters of the Proviso, emphasizing that existing law already barred slavery in the territories. “The truth of law which [the resolution] declares is, that there is does not exist, at this time, slavery within any portion of the territory acquired by the United States from Mexico.” At the same time, in an attempt to blunt southern as well as northern objections, Clay argued that, since the laws of nature and geography barred slavery, “I believe it [establishing slavery] could not be done even by the force and power of public authority.”

Overlooking the fact that California, too, had been part of Mexico and presumably subject to its laws, Clay argued that the failure of slavery to take root in California demonstrated that it could certainly not flourish in the southwest:

Sir, facts are daily occurring to justify me in this opinion. Sir, what has occurred? And upon this whole subject, I invite Senators from the free States especially to consider what has occurred even since the session – even since the commencement of this session – since they left their respective constituencies without an opportunity of consulting with them upon that great and momentous fact – the fact that California herself, of which it was asserted and predicted that she never would establish slavery within her limits when she came to be admitted as a State; that California herself, embracing, of all other portions of the country acquired from Mexico, that country into which it would have been most likely that slavery should have been introduced; that California herself has met in convention, and by a unanimous vote, embracing in that body slaveholders from the State of Mississippi, as well as from other parts, who concurred in the resolution – that California by a unanimous vote has declared against the introduction of slavery within her limits.

Finally, Clay alluded to president Zachary Taylor's plan to leave the southwest country without territorial government until it petitioned for admission as states. This, Clay maintained, was unacceptable because it would abandon the inhabitants to lawless anarchy and violence:

Sir, much as I am disposed to defer to high authority, anxious as I really am to find myself in a position that would enable me to cooperate heartily with the other departments of the Government in conducting the affairs of this great people, I must say that I cannot – without a dereliction of duty – consent to an abandonment of them without government, leaving them to all those scenes of disorder, confusion, and anarchy which I apprehend, in respect of some of them, there is too much reason to anticipate will arise. It is the duty, the solemn – I was going to add the most sacred duty – of Congress to legislate for their government if they can, and at all events to legislate for them, and to give them the benefit of law, and order, and security.

The Petitioners in McDonald are "arguing for a revolution"

Law Prof Orin Kerr reported yesterday at Volokh that the petitioners in McDonald v. City of Chicago - the Second Amendment case pending before the Supremes, which presents the issue whether the Second Amendment applies against the states (and their political subdivisions, such as the city) - "filed their merits brief." I haven't read it yet, but Prof. Kerr characterizes the brief as "truly remarkable" in that its primary argument seeks to overturn the Slaughterhouse Cases, an 1873 decision in which the Supremes narrowly construed the Privileges or Immunities Clause:

[The brief] devotes 55 pages to arguing that the Supreme Court should overturn The Slaughterhouse Cases (1873) and embark on a new era of a newly rejuvenated Privileges or Immunities Clause. It then gives a mere seven pages, at the very end of the brief, to applying existing doctrine and arguing that the Second Amendment is incorporated and applies to the states under the Due Process clause. It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.

The photo at the top depicts a group of freedmen in Richmond, Virginia in April 1865.

"By international standards . . . the South was an economic powerhouse"

I really enjoyed John Majewski's Modernizing a Slave Economy: The Economic Vision of the Confederate Nation. I therefore procured a copy of his first book, A House Dividing: Economic Development in Pennsylvania and Virginia Before the Civil War. In the opening pages, Prof. Majewski points out that, although Northerners such as William Seward characterized the South as physically decrepit and economically degraded, it is possible to reach a very different conclusion:

We now know that Republicans greatly exaggerated the degree of southern stagnation. Economic historians have conclusively shown that the South was remarkably prosperous on the eve of the Civil War. Southern incomes - at least those for whites - rose rapidly between 1840 and 1860. High crop prices for southern staples such as cotton and tobacco accounted for much of this prosperity, but white southerners were hardly passive recipients of good fortune. They built thousands of miles of railroad tracks, improved the productivity of farms and plantations, and established a small but growing industrial base. By international standards, at least, the South was an economic powerhouse.

Remembering the Victims of Communism

All One Hundred Million of them, give or take.

You might want to remember that the next time you put on your Che t-shirt, or watch some Hollywood moron (or our president) embrace Hugo Chavez.

How About A Quickie?

It's been a while since I've built an audio kit (other than replacing the output transformer on and generally neatening up the wiring of my Assemblage ST-40), primarily because I've got more amps and preamps than you can shake a stick at. But I ran across one the other week I just couldn't resist: a battery-powered preamp.

I've long wanted to try battery power. Although most of you are probably shaking your heads, battery power has a small but enthusiastic group of advocates. The argument is that, because the equipment is not connected to the "mains" (as the British say), you eliminate the hum, noise and grunge that subsists in power lines and household circuits. In addition, audio equipment operates on direct current. By sourcing your power from batteries (which supply direct current), you eliminate the need for expensive and potentially noisy transformers needed to convert the AC from your walls.

Another consideration that made the kit a no-brainer was the source: Doc Bottlehead. For those of you who don't know him. Doc. B (aka Dan Schmalle) is a Washington State-based tube fanatic who has sold reasonably priced preamp and low-powered tube amp kits (300B and 2A3 based) over the internet for well over ten years. Doc's kits tend to have slightly racy names. His first product, for example, was the S.E.X. (Single Ended eXperimenters Kit).

Another Bottlehead mainstay for years has been the superb Foreplay preamp. I have two, one built from a kit purchased from Bottlehead, the second a Foreplay clone I put together using super duper parts, including stepped attenuators sourced from Welborne Labs.

Feeling the itch, I stopped by the Bottlehead site for the first time in a long while and immediately saw that Doc was now offering a battery-powered preamp kit called the Quickie for all of $99. I ordered one as quickly as I could fill out the form.

Both in my personal experience and according to the fans who flock to the Bottlehead Forum, Doc is extremely reliable, and this time was no exception. My Quickie showed up in a little over a week, and this morning I got to work. So far I've attached the hardware to the top plate. Now to fire up the soldering iron and start the wiring.

Merrill D. Peterson, R.I.P.

I just saw a post by David Post at Volokh reporting that Merrill D. Peterson died in late September at the age of 88. A little searching turned up additional notices at Reason and the NYT.

I haven't read Prof. Peterson's biography of Thomas Jefferson, but his The Great Triumvirate: Webster, Clay, and Calhoun is a model of political biography that illuminates not just his nominal subjects but the period in which they dominated their country.

R.I.P., Professor.

The War Between the Rich and Poor States?

Although I haven't quite finished Prologue to War, I couldn't resist taking a peek this afternoon at my next book, James L. Huston's Calculating the Value of the Union: Slavery, Property Rights, and the Economic Origins of the Civil War - and I'm already excited.

For starters, Prof. Huston has clearly absorbed his Gavin Wright, and in particular Prof. Wright's invaluable observation that slavery was not merely a method of labor organization; it was also a means of capital accumulation. Second, Chapter 2 is crammed full of valuable tables concerning state-by-state population, acreage, wealth, etc. Some are readily available elsewhere, but it's nice to have them all together in one place. Others are more unusual, and highlight important facts often overlooked.

To pick but one example, Prof. Huston puts together of a list of the states ranked by total wealth as of 1860. The top five are all northern states: New York, Pennsylvania, Ohio, Illinois and Massachusetts. But he then juxtaposes that list with another ranking the states by wealth per capita, white population only. Now eleven of the top twelve states are slave states, and the seven states that seceded before Lincoln took office appear in the top eight. The sole exception is Connecticut, which comes in at no. 5.

Prof. Huston quite rightly suggests that these tables throw doubt on the usual picture, in which "the North is characterized as the dynamic, growing economy while the South is described as sinking into backwardness and poverty - usually by some comparison of New York to Virginia or Ohio to Kentucky."

In terms of wealth, the mighty economies of Pennsylvania, Ohio, and New York . . . look like the sick and underdeveloped economies that Republicans called the slave states. One could almost say that the war between the states was not between the slave and free states, but between the rich and poor states.