Sunday, December 05, 2010

The Clayton Compromise 8: "Articles of Capitulation on the part of the South"

The most interesting speech on the Clayton Compromise bill was not delivered during the debates over the Compromise. As I explained in an earlier post, on August 7, 1848 Rep. Alexander H. Stephens of Georgia took the House floor to explain why he had moved to table the bill ten days earlier. That speech is well worth its own post or two.

Rep. Stephens argued that he had properly moved to kill the bill for essentially two reasons. First, the bill “settled nothing”; it merely kicked the can down the road, and it did so in such a way that would only create “greater and more alarming excitement” later only. Second, and more importantly, the bill, labeled a “compromise”, was nothing of the sort. It was a sell-out of the South and “might be more properly entitled Articles of Capitulation on the part of the South.”

Stephens' discussion of his first point was brief and lacked detail. The bill, Stephens suggested, dishonestly deferred resolution of the issue of slavery in the territories and improperly shifted responsibility for the decision from Congress (to the Supreme Court). One section or the other would ultimately be angered by the outcome. Congress ought to face up to its responsibilities and deal with the consequences now rather rather than create a firestorm later on (some paragraph breaks added):
[W]hile [the Clayton Compromise bill] was urged as a compromise and a settlement of the agitating question which now so greatly distracts the public mind, it really settled nothing, but opened wide the door for greater and more alarming excitement. Those gentlemen of the North who advocated it, claimed it as a complete triumph of their principles; while those of the South, I suppose, were prepared to go to their constituents, and tell them that it fully secured all their rights. Now, sir, I do not believe in compromises or settlements that are not fully and clearly and distinctly understood on both sides at the time.

What is the great point of difference now between the two great sections of the Union? The North insists upon the policy of excluding the institutions of the South from the whole of the new Territories, while the South contends that that she is, in justice, entitled to an equal share of whatever country may be acquired by the common blood and treasure of all.

And how was this difference proposed to be compromised and settled? Simply, by the adoption of a measure, upon the meaning and import of which leading men on both sides, at the time, differed as widely as they did upon the main question itself.

So far from settling the question, or “pouring oil upon the troubled waters,” such a measure could be have multiplied difficulties, increased excitement, and “added fuel to the flame.” For this reason, in my judgment, the bill should have met favor from no quarter.

The real question, the great issue between the two sections of the country, has to be met sooner or later, and no shifting of responsibility, in order to get a postponement for the purpose of carrying a Presidential election, or relieving a candidate from an almost universally condemned position, will successfully evade it. And when it is met, I want it met fairly and squarely.
This, however, was merely prologue to Stephens' main point, “that for far greater and more controlling reasons, no southern man should have voted for that measure.” The bill, Stephens maintained, “proposed a total abandonment and surrender of the rights of the South. Not an open abandonment, but a covert one.”
I have much graver reasons than this for my opposition to the territorial bill which was rejected the other day in this House, on my motion. It is my object at this time to speak upon that measure, which some gentlemen are pleased to call the "compromise bill," but which might be more properly entitled Articles of Capitulation on the part of the South. So far from being a compromise, that bill proposed nothing short of an abandonment of the position of the South, and a surrender of the just rights of her people to an equal participation in the new acquisitions of territory. The surrender was covert, but it was no less complete and absolute.

This I intend to show. Never was any measure more grossly misnamed or miscalled. It was no compromise in any sense of the word. A compromise is the mutual yielding of rights, for the purpose of adjusting and settling differences and difficulties. But, in this case, there was no such mutual concession. The whole question was left, in the last resort, to the Supreme Court of the United States, upon whose decision one party was either to get or lose all. And, entertaining not the slightest doubt that under it the South was to lose all, I adopted the speediest and most effective means of defeating it.

Stephens began to explain his position by quoting from the key sections of the bill relating to the California and New Mexico territories, prohibiting the governments from legislating concerning slavery and inviting Supreme Court review. “The bill contains nothing else which bears materially upon the subject of slavery,” Stephens explained. But this left the southern slaveholder with, at best, nothing but “expensive and almost endless litigation”:
[The bill] leaves the southern man, who may be inclined to go there with his slaves, to contest his rights to the best of his abilities with the courts of Territory in the first instance, and then, if he chooses, with the Supreme Court of the Union.

All that the bill does is, to guard against the passage of any law for the protection of the master; but opens wide the door of expensive and almost endless litigation between him and his slave, without affording him even the shadow of a semblance of a hope that his rights, at the end of the law, will ever be recognized or enforced.
Worse, the bill ignored the underlying issue: what was the law that the courts were supposed to apply? Courts, Stephens cogently argued, don't create law, they apply it. What law would they be applying here?

The most interesting of all questions, Mr. Speaker, to the South, upon this point, is, by what law will the Territorial courts, in the first instance, and the Supreme Court of the United States, in the last resort, decide the question of freedom between master and slave? It is not the province of courts, in their judicial character, to make laws; they can only decide upon laws after they are made. And in the absence of legislation by Congress, and the Territorial Governments, upon this subject, by what law, I ask, will the courts decide questions between the master and his slave in these Territories?
Without yet answering the question, Stephens implied that southerners in favor of the bill had engaged in wishful thinking, viewing the anticipated outcome as “partisans” rather than as “statesmen”:
This, sir, is a great and vital question for us to consider – not as partisans, but as statesmen – before we refer a subject of so much interest to their decision. It is certainly a matter of the utmost importance to the people of the South, that they should not be left in ignorance upon it; and, so far as my ability goes, they shall not be.
Stephens then laid out his answer to question, exposing the core reason for his position. Sober legal analysis led to the conclusion that the courts would apply pre-existing Mexican law in force in New Mexico and California which barred slavery:
[A]ccording to the best, ablest, and most approved writers on public law, and according to the decisions of the courts in England, in analogous cases, and according to the repeated decisions of our own Supreme Court to which this bill proposed to refer this matter, (in the absence of such legislation as I have alluded to,), the law by which the courts would decide questions of slavery there is the law which was in force in New Mexico and California upon that subject at the time of the conquest.
This was because, Stephens asserted, legal principles and authorities demonstrated that
all the laws which were in force in the conquered county at the time of conquest, are held to continue in force until altered or modified by the conquering power, except such as may be inconsistent with the fundamental law of the conquering power, or inconsistent with some stipulation in the final treaty, or such as were purely political in their character, and concerned only the relations between the people and their sovereign or ruling power. . . . According to modern doctrine, the relations of the people towards their sovereign or ruling power, in whatever form of government, are changed; but their relations towards each other and their laws, as before stated, remain until modified or altered by the new governing power.
Citing and quoting from learned legal authorities on international law (Grotius, Vattel) and British and American legal decisions by Lord Mansfield, John Marshall and William Johnson), Stephens then delivered what amounted to a remarkably detailed legal brief, consuming three dense columns in the Congressional Globe, in support of these propositions.

The only question, then, was “what was the law upon the subject of slavery in California or New Mexico at time of their conquest?” The answer admitted of no doubt. “Slavery was abolished there in 1829.” Stephens cited and quoted the relevant Mexican decree (signed by Vicente Guerrero and Laurenzo de Zavala on September 15, 1829) and act to prove the point.

The conclusion, then, was clear. Courts deciding freedom suits in New Mexico and California as contemplated by the Clayton bill would have been compelled to rule against the master:
From this I take it for granted that nobody will deny that slavery was abolished in California and New Mexico at the time of their conquest by our arms. If a slave at that time had brought an action for his freedom against his master before the courts of the country, does any man doubt but that the courts under the law then in force would have declared him to be free? And as our court has decided that in all such cases the laws of the acquired territory in force at the time of the acquisition, shall remain in force as the law of the place until altered by competent authority, can any man doubt that they would decide the question just as the Mexican courts would have decided it at that time?
In the next (and I expect final) post on the subject, I will look at the balance of Rep. Stephens's speech.

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