(The) Mississippi Burning

[I]t would have been happier for us if the the Mississippi [River] had been an eternal torrent of burning lava, impassable as the lake which separates the evil from the good, and the regions beyond it destined to be covered forever with brakes and jungles, and the impenetrable haunts of the wolf and the panther . . ..

Senator Harrison Gray Otis of Massachusetts, Speech to the Senate on Tuesday January 25, 1820.

The Clayton Compromise 7: The House Tables the Bill

As we have seen in earlier posts, an exhausted Senate passed the Clayton Compromise bill on the morning on Thursday July 27, 1848. The bill was then reported to the House of Representatives.

After all of the Senate's efforts, the action in the House was an anticlimactic. Immediately after the bill's introduction on Friday July 28 Alexander Stephens, Whig of Georgia, “moved to lay the bill on the table, and demanded the yeas and nays.”

At the time, Rep. Stephens made only a short statement in support of his motion, one which did not explain in any detail the basis for his disapproval of the bill. The bill, he maintained, merely postponed the question of slavery in the territories and would not give any peace to the country. The session had already been a long one; it was time to go home:

Mr. STEPHENS here said that he admitted, with the gentleman from Kentucky, [Mr. Boyd,] that this bill was connected with a question of the deepest interest; but he could not believe, as that gentleman seemed to do, that its passage would secure peace and quiet to the country; if he did, he should be willing to protract this session indefinitely till it was passed. But, as he read the bill, all it did was merely to postpone the question, not to settle it, or give any peace to the country. The session was already of unusual length; he thought it was time they should go home. He had no belief that the question could be settled during the present session; and, wishing to bring it to a test vote, he would move to lay the bill on the table.

Shortly thereafter, the yeas and nays were taken. By a vote of 112 to 97 “the bill was laid upon the table.” As in the Senate, Southern Democrats voted solidly against the motion (and therefore in favor of the bill), while Northern Whigs voted solidly in favor of the motion (and against the bill). Northern Democrats and southern Whigs were divided. The breakdown among parties and sections was as follows (bear in mind that a vote in favor of the motion was in effect a vote against the bill):

	Dems	Whigs	Total
North	31 - 21	73 - 0	104 - 21
South	0 - 49	8 - 27	8 - 76
Total	31 - 70	81 - 27	112 - 97

The votes of Stephens and his seven southern Whig colleagues were thus crucial. Had they voted against the motion it would have been defeated 104 – 105.

As Thomas E. Schott explains in Alexander H. Stephens of Georgia: A Biography, both Democrats and some Whigs in his native state blasted Stephens for his motion and vote:

Georgia Democrats yowled. “Oh Whiggery! manifold are they since! But this is the climax of its iniquities,” raged the Constitutionalist. “A Georgian . . . took the lead in this act, which stabs the very bosom of his country's peace.” The editor foamed like this for weeks. The Federal Union immediately established on its front page a black-bordered box headed “Who Killed the Compromise Bill?” followed by a list, entitled “The Immortal Eight,” with Stephens' name in block capitals at the top. . . .

Some Georgia Whigs were similarly outraged. The Augusta Republic hoped that the “calculating demagogue” who would hazard the country's safety would “be damned forever.”

To combat such criticism, on August 7, 1848 Stephens took the House floor to explain his position. It is to that speech, generally regarded as the most thoughtful and intelligent delivered concerning the Clayton Compromise, that we will turn in the next post.

The Clayton Compromise 6: Analysis of the Senate Vote

In an earlier post I broke out the Senate's 33 to 22 vote in favor of the Clayton Compromise bill by party and region. I'm happy to report that I think I've discovered how to make the breakdown more readable:

	Dems	Whigs	Total
Free States	7 - 10	1 - 8	8 - 18
New England	1 - 4	1 - 5	2 - 9
Mid-Atlantic	2 - 1	0 - 1	2 -2
West	4 - 5	0 - 2	4 - 7
Slave States	18 - 0	7 - 4	25 - 4
Border/Mid	6 - 0	5 - 4	11 - 4
Cotton	12 - 0	2 - 0	14 - 0
Total	25 - 10	8 - 12	33 - 22

Two things stand out. The first is the striking unanimity in favor of the bill among southern Democrats (18-0) and among both Democrats and Whigs hailing from the Cotton south states (14-0). Even John C. Calhoun voted in favor! Border and mid-south Whigs in contrast were almost evenly divided (5-4).

The second is the near unanimity against the bill among northern Whigs (1-8) and among New Englanders of both parties (2-9). Mid-Atlantic and western Democrats, however, were equally divided (6-6).

The northern vote is easier to explain. The nays appear to come almost exclusively from Conscience Whigs and Democrats who supported the Wilmot Proviso and would later become Free Soilers and Republicans (e.g., John P. Hale of New Hampshire and Hannibal Hamlin of Maine). They seem to have taken the position that they could not vote in favor because the bill left open the possibility, however slight, that the territories could wind up becoming slave territories.

Northern votes in favor of the bill came largely from Senators who were not wedded to the Proviso. A leading example is Daniel S. Dickinson of New York, who would later join the Hunker faction opposing the Barnburners, and later still a Hard-Shell, opposing readmission of the Barnburners back into good standing with the Democrats).

The southern vote is more difficult to comprehend. Since all deep south Senators voted in favor, one can only conclude that Senators such as John C. Calhoun believed that the bill gave the south everything to which it was reasonably entitled under the Constitution. The Constitution carried slavery with it of its own force and barred the federal government from legislating concerning slavery in the territories. This the bill studiously avoided doing.

Ironically, border and mid-south Whigs were divided (5-4), at least in part, because they were less doctrinaire on these constitutional questions. George E. Badger of North Carolina opined that the Constitution of itself did not establish slavery and that Congress did have the power to legislate concerning slavery in the territories. Joseph R. Underwood of Kentucky likewise expressed the view that Congress had the power to legislate concerning slavery in the territories.

The Long Recall: An Aggregator of The Civil War

Many thanks to Fred Ray at TOCWOC for pointing out The Long Recall: An Aggregator of the Civil War.

As Walter Russel Mead explains in an essay describing the project, The Long Recall is, for now at least, a blog "present[ing] a daily digest of the news and commentary that an intelligent American might have had accessible 150 years ago."

We will use a modern form to present the daily news: our Civil War aggregator that combines a short daily summary of the news along with links to articles that a well-informed Civil War-era reader would have wanted to read. Our goal is to allow readers today to get a feel for what it was like to experience the conflict in real time, to hear the many voices trying to make sense of the conflict, and to sift through sometimes confused and misleading news accounts to try to discern what was actually taking place.

This is an outstanding project. 150 years ago, Americans were trying to make sense of the reports and rumors of movements toward secession in South Carolina and elsewhere in the south. I spent a good deal of time last evening reading the entries for just the past several days, and the articles linked in those entries. They convey the confusion and uncertainty that people were experiencing. What was going on in the Palmetto State? In Virginia? What did Kentucky think? Would there be some sort of southern convention, and if so what did that portend? Was secession economically feasible? Why had the south failed to develop its own manufactures, and would it be able to do so now? Would there be a peace conference? Should there be? What was Buchanan's position? What about Millard Fillmore? Who was Lincoln? Maybe he was more conservative on slavery than generally assumed?

Wonderful stuff. I'll be reading The Long Recall daily, and I suggest you do so too.

About the illustration, entitled South Carolina's "Ultimatum":

In late December 1860 three commissioners from the newly seceded state of South Carolina met with lame-duck President Buchanan to negotiate for possession of Fort Sumter, a federal installation in Charleston Harbor. Buchanan's attempts to stay the situation and South Carolina governor Francis Pickens's insistence on Union evacuation of the fort are ridiculed here. Pickens (left) holds a lit fuse to a giant Union cannon "Peacemaker," which is pointed at his own abdomen. He threatens, "Mr. President, if you don't surrender that fort at once, I'll be "blowed" if I don't fire." Buchanan (right) throws up his hands in alarm and cries, "Oh don't! Governor Pickens, don't fire! till I get out of office." In the background a steamer makes its way across Charleston Harbor toward Fort Sumter. The print probably appeared early in 1861, amid mounting tensions over the fate of the fort and uneasy relations between Washington and South Carolina.

The "handsome, portly gentleman" Was . . . Millard!

You guys and gals have really fallen down on the job. In a recent post I challenged you to identify the "handsome, portly gentleman" who Julia Gardiner (later Julia Gardiner Tyler) saw on a train while heading from New York to Washington in about December 1841.

Well, the gentleman in question was none other than the future thirteenth president, Millard Fillmore. The passage is from the Reminiscences of Mrs. Julia G. Tyler found in Volume 3 of The Letters and Times of the Tylers, by Lyon Gardiner Tyler:

My father was of an old family of New York, and possessing means and leisure, placed his time at his daughters' disposal, and there was no wish personal to ourselves which he did not attempt by every available means to gratify. Having become acquainted in former days, while a member of the New York State Senate, with nearly all the prominent politicians of the State, he conceived the idea of a visit to Washington during the session of Congress, thinking that our education would be singularly imperfect if, after seeing the capitals of nearly all the governments of the old world, we should neglect lo see our own. Impressions of our public men began with our trip from New York to Washington. A handsome, portly gentleman came several times into the car in which we were seated and excited the interest of myself and sister by the self-conscious manner in which he looked into the mirror at the head of the car and adjusted his cravat, while he cast several furtive glances in our direction. These glances were, doubtless, accidental, though, soon after our arrival in Washington the gentleman alluded to called upon our parents, in company with an old friend of my father, the Hon. Silas Wright of New York, Then we found that the handsome stranger was no less a personage than Millard Fillmore, the then chairman of the Committee on Ways and Means of the House of Representatives, and alas! also married. By this latter discovery mine and my sister's little romance was dissolved, for, though perhaps a little vain, we always thought him an accomplished gentleman. He afterwards followed in the footsteps of General Taylor as President of the United States.

How Cats Drink

The right way (see also the video video linked here and the article linked here):

The wrong way:

"We never will consent to allow any foreign Power to control the mouth of that great highway of commerce"

Isaac Newton Morris was a two-term Democratic Representative from Illinois (1857-1861). I can find no picture of him, but I imagine that he must have looked very much like his father, Senator Thomas Morris of Ohio – a fearless bulldog of a man – for that is certainly the impression conveyed in a remarkable speech that Isaac Morris delivered in the House on January 16, 1861. His denunciations of and imprecations against the sinners and traitors against Union ring out like those of a Biblical prophet. The Republicans, Buchanan, the secessionists – no one is spared. He demands that Union men of all parties awaken and take action:

It is time, sir, that we should arouse. Men of America, why stand ye still? Arouse! Shake off your lethargy! All considerations of party should be lost with us, when our country is in danger. I am with every man who is for the Union, and against every man who is against it; and I am ready now to march up to our national altar, and swear: “The Union: it must be and shall be preserved, by the Eternal!” If its enemies bring war out of it, it must be so, though none would regret it more than myself.

And judgment, he warns, is coming:

Let disunion be consummated, and some of us will live to see the dark pall of death settle upon the “cotton states.” I wish the direful calamity could be averted, and pray it may be; but it will come as inevitably as destiny itself. When they venture into the Red sea, like Pharoah [sic] and his hosts, they will be overthrown; and instead of reaching the promised land, flowing with milk and honey, will only find bitter waters and the stinging of serpents.

But the most interesting part of his speech is his discussion of the pivotal importance of the Mississippi River to the northwest. The upper midwest, he warns, will never tolerate loss of its access to the sea. If a “foreign Power” takes control of the lower Mississippi, millions of northerners will rise, “and blood will flow like water:”

I live, sir, in the heart of the valley of the Upper Mississippi, and on the banks of that mighty river which rises in the far latitude of the north, and moves on with slow and silent grandeur to the sea, bearing upon its placid bosom our surplus productions. I live where the Democratic masses love the Union, and are conservative, and where the rights of all are respected.

But I tell the South, especially the inhabitants of the Lower Mississippi, that we already have, in its upper valley, ten million people, and that we never can, and we never will, consent to allow any foreign Power – and they will be foreign when they leave us – to retain possession and control of the mouth of that great highway of commerce. We do not wish to boast; we do not intend to threaten; but we do mean to protect ourselves.

Mr. Jefferson, in a letter to Mr. Livingston, when the latter was minister to France, upon that country repurchasing the Louisiana territory, in 1802, from Spain, instructed him to say to the French Government that it would never be allowed to occupy the mouth of the Mississippi. All trouble, however, of the ownership and occupancy by France was fortunately obviated by the purchase of the territory from Napoleon I, in 1803.

We of the upper valley view the matter just as Mr. Jefferson did; and will permit none others than ourselves to exercise ownership over that gateway to the oceans. The enemy that shall attempt to keep it from us will find an army opposing him far more numerous than any that ever besieged imperial Rome, and blood will flow like water.

This will be one of the results of disunion. Civil war between the North and the South will be another; and soon the whole land will be convulsed with discord and deadly strife, and clothed in the habiliments of woe.

Millard Fillmore With Ham

Now this is an image I've got to have on my blog.

Thanks to Ed Darrell at Millard Fillmore's Bathtub for pointing out that an artist by the name of Bijijoo has painted a series of portraits of presidents holding hams.

Name That "Handsome, Portly Gentleman"

In about December 1841, Julia Gardiner, then twenty-one years of age, was travelling from New York to the District of Columbia by train with her father and sister. As she describes below, she encountered a "handsome, portly gentleman". Your task is to name him. A few clues: the gentleman was a member of Congress from New York, and readers of this blog have encountered him before. I would love it if some of you who have not posted comments before took a stab at this and introduced yourselves.

My father was of an old family of New York, and possessing means and leisure, placed his time at his daughters' disposal, and there was no wish personal to ourselves which he did not attempt by every available means to gratify. Having become acquainted in former days, while a member of the New York State Senate, with nearly all the prominent politicians of the State, he conceived the idea of a visit to Washington during the session of Congress, thinking that our education would be singularly imperfect if, after seeing the capitals of nearly all the governments of the old world, we should neglect to see our own.

Impressions of our public men began with our trip from New York to Washington. A handsome, portly gentleman came several times into the car in which we were seated and excited the interest of myself and sister by the self-conscious manner in which he looked into the mirror at the head of the car and adjusted his cravat, while he cast several furtive glances in our direction. These glances were, doubtless, accidental, though, soon after our arrival in Washington the gentleman alluded to called upon our parents, in company with an old friend of my father, the Hon. Silas Wright of New York. Then we found that the handsome stranger was no less a personage than . . ..

ANSWER: The answer may be found here.

John Tyler Tells A Joke

By way of background, in September 1841 the Whig members of Congress, headed by an irate Henry Clay, read president John Tyler out of the Whig party for twice vetoing bills to establish a third national bank.

In his new book Manifest Destinies: America's Westward Expansion and the Road to the Civil War, Steven E. Woodworth relates that three and a half years later a satisfied Tyler joked about his status as outcast:

While Congress debated and finally approved Texas annexation that winter [1844-1845], Tyler approached the end of his administration with equanimity. He felt vindicated by the widespread public support for annexation . . .. On February 18 [1845] he and Julia [his new wife] held a final presidential ball with three thousand guests in attendance. A marine band was on hand to play cotillions and the more daring waltzes an polkas the Tylers had introduced to Washington society. "Wine and champagne flowed like water," commented a delighted guest. Congratulated on hosting such a gala event, Tyler joked, "Yes, they cannot say now that I am a President without a party."

About the illustration, entitled Going to Texas after the election of 1844:

A comic scene anticipating a Whig victory in the upcoming presidential election. The date is 1845, after an election supposedly decided on the Texas question, the tariff issue, and Democratic identification with Jacksonian policies. The artist ridicules Democrat James K. Polk's advocacy of the annexation of Texas as misguided aggression. In addition, the title's use of the phrase "Going to Texas," contemporary code for embezzling, may be a swipe at the political spoils system associated with the Democrats since the Jackson administration. Incumbent President John Tyler also comes under attack for corruption. The scene is outside the White House. On a "Loco Foco" donkey Polk and running-mate Dallas, heavily armed and equipped with military packs, are about to depart for Texas. Dallas holds a flag with skull-and-crossbones and the motto "Free Trade," a symbol of antiprotectionism. Around the donkey's neck is a feed barrel full of "Poke berries." Before the donkey stands Andrew Jackson, offering his trademark hat and clay pipe, and crooning: I give thee all, I can no more, / Though poor the offering be, / My hat and Pipe are all the store, / That I can bring to thee! / A hat whose worn out nap reveals / A friendly tale full well, / And better far a heart that feels, / More than Hat and Pipe can tell! At this the donkey brays, "Eehaw!" and Polk bids Jackson, "Goodbye General! It is all day with us. I am a gone Sucker!" Dallas exclaims, "D--n Clay!" Behind the donkey stands John Tyler, with lowered head, reflecting, "It is very odd, that after all my treachery, and the unscrupulous efforts of office holders and political dependents, this is my reward! If I had not laid by enough for a rainy day, I should slope for Texas too!" On the ground nearby lies a sign reading: "For Sale A lot of hickory Poles will be sold cheap to close the concern. enquire of Polk & Dallas." From the steps of the White House Henry Clay waves and calls out, "A pleasant journey to you Gentlemen! may your shadows never be less!" Below the title is a narrative, purportedly excerpted from the Tyler administration organ the "Madisonian" of April 1845: All wept particularly when the old chieftain approached and holding his hat and pipe in one hand and the other placed on his heart, with tremulous accent interrupted occasionally with a cough, sang the above lines, an impromptu composed by himself to the well known tune of my heart and Lute, even the sagacious Tyler was subdued and sank into a fit of melancholy abstraction; the Donkey brayed encore.

"The Top 100 Influential Figures in American History"

Apart from poor Millard, whom I didn't expect to make the new Atlantic list, several others immediately spring to mind as worthy of consideration. In more or less chronological order:

Andrew Jackson may have been the figurehead, but it was Martin Van Buren who invented the Democratic Party and the Second Party System, then abandoned the party he had created to serve as the presidential candidate for the first non-trivial anti-slavery party, the precursor to the Republican Party.

Daniel Webster's stirring oratory focused and inspired among a generation of Americans unionist sentiment that they would rise to defend when the crisis came.

Abolitionists get all the press, but it was David Wilmot who rose in the House in 1846 to move the famous Proviso that set the country on the road to Civil War.

After crafting and pushing through Congress the Compromise legislation of 1850 that averted civil war for ten years, Stephen A. Douglas's decisions to introduce the Kansas-Nebraska Act and later oppose the Lecompton Constitution gave birth to the Republican Party and placed it on the road to victory in 1860, sparking the war he sought to avoid.

Ann Althouse's musings on the list are worth your time.

About the illustration, entitled Marriage of the Free Soil and Liberty Parties (1848):

A comic portrayal of the alliance between Free Soil Democrats and Whigs and the more extremist abolitionist Liberty party interests during the election campaign of 1848. The factions joined to form the Free Soil party and nominated a presidential candidate in a convention at Buffalo in August. That union is lampooned here as the wedding of Free Soil presidential candidate Martin Van Buren (center left) and a ragged black woman (center right). Van Buren ally Benjamin F. Butler presides over the "marriage." Van Buren, reluctant to embrace the aged bride, is shoved forward by antislavery editor Horace Greeley (left), who says, "Go, Matty, and kiss the bride That is an indispensable part of the ceremony." Van Buren's son John (far left, here called "John Van Barnburner") also urges him on, "Walk up, dad. You can hold your breath till the ceremony is over, and after that you can do what you please." Van Buren says, "I find that politics, as well as poverty, make one acquainted with strange bedfellows." In contrast, the woman beckons with open arms, "Come here, my flower. You is a great stranger, and I want to get acquainted wid you." A black man behind her says of Van Buren, "I nebber hab berry good pinion ob the gemman; but if he ax pardon for all he hab done and said agin us, I will shake hands wid de genman." A black woman (further right) remarks, "Mercy on me! How bashful he is!" Butler, with arms raised and book in one hand, intones, "Who giveth this man to be married to this woman?"

The Clayton Compromise 5: "Instantly Senators arose from sofas"

As I mentioned in the last post, the Senate passed the Clayton Compromise bill shortly before 8:00 a.m. on Thursday July 27, 1848. The session had begun at 11:00 a.m. the day before. I've read portions of the Senate debate on the bill and it is singularly unenlightening. Almost everyone seems to have been exhausted and befuddled. And yet a majority was so desperate to end the agony by producing a bill – almost any bill, it would seem – that they refused to adjourn until a vote was taken. This excerpt from the Congressional Globe is more instructive than the speech of any Senator:

Mr. [John M.] NILES addressed the Senate for some half hour. There being only one Senator present in his seat, he moved that the Senate adjourn.

It was then two a.m., but instantly Senators arose from sofas and various parts of the lobby, and the yeas and nays were demanded, and the motion was disagreed to [by a vote of 11-32].

The Clayton Compromise 4: The Vote in the Senate

As we saw in the last post, the Clayton Compromise bill was a very odd duck. As a technical matter it left the slavery question open in all three territories – Oregon, California and New Mexico. However, as a practical matter it virtually guaranteed that slavery would remain barred from Oregon and that that territory would ultimately enter the Union as a free state. The future of California and New Mexico was more obscure, with the outcome presumably to be decided by the United States Supreme Court.

Surprisingly, the Clayton Compromise bill passed the Senate “at seven minutes before 8:00 a.m., (Thursday morning [July 27, 1848],) after a continuous session of twenty-one hours.” Equally surprising was the size of the margin of victory – 33 ayes to 22 nays. Before trying to sort out the vote, here is the roll call:

Ayes

David R. Atchison (D, MO)

Charles G. Atherton (D, NH)

Thomas Hart Benton (D, MO)

John M. Berrien (W, GA)

Solon Borland (D, AR)

Sidney Breese (D, IL)

Jesse D. Bright (D, IN)

Andrew Butler (D, SC)

John C. Calhoun (D, SC)

John M. Clayton (W, DE)

Jefferson Davis (D, MS)

Daniel S. Dickinson (D, NY)

Stephen A. Douglas (D, IL)

Solomon W. Downs (D, LA)

Henry S. Foote (D, MS)

Edward A. Hannegan (D, IN)

Samuel Houston (D, TX)

Robert M.T. Hunter (D, VA)

Reverdy Johnson (W, MD)

Henry Johnson (W, LA)

Herschel V. Johnson (D, GA)

William R. D. King (D, AL)

Dixon H. Lewis (D, AL)

Willie P. Mangum (W, NC)

James M. Mason (W, VA)

Samuel S. Phelps (W, VT)

Thomas J. Rusk (D, TX)

William K. Sebastian (D, AR)

Presley Spruance (W, DE)

Daniel Sturgeon (D, PA)

Hopkins L. Turney (D, TN)

James D. Wescott, Jr. (D, FL)

David L. Yulee (D, FL)

Nays (22)

William Allen (D, OH)

George E. Badger (W, NC)

Roger S. Baldwin (W, CT)

John Bell (W, TN)

James W. Bradbury (D, ME)

John H. Clarke (W, RI)

Thomas Corwin (W, OH)

John Davis (W, MA)

William L. Dayton (W, NJ)

John A. Dix (D, NY)

Henry Dodge (D, WI)

Alpheus Felch (D, MI)

Thomas Fitzgerald (D, MI)

Albert C. Greene (W, RI)

John P. Hale (D, NH)

Hannibal Hamlin (D, ME)

Thomas Metcalfe (W, KY)

Jacob W. Miller (W, NJ)

John M. Niles (D, CT)

Joseph R. Underwood (W, KY)

William Upham (W, VT)

Isaac P. Walker (D, WI)

And here is the breakdown by party and section. In the chart below New England includes ME, NH, VT, MA, RI and CT. Mid-Atlantic includes NY, NJ and PA. West includes all other non-slave states. Cotton includes the seven original states of the Confederacy. And Border/Mid includes all other slaveholding states, including those that did not secede (DE, MD, KY and MO).

Dems Whigs Total

Free States 7-10 1-8 8-18

New England 1-4 1-5 2-9

Mid-Atlantic 2-1 0-1 2-2

West 4-5 0-2 4-7

Slave States 18-0 7-4 25-4

Border/Mid 6-0 5-4 11-4

Cotton 12-0 2-0 14-0

Total 25-10 8-12 33-22

Pictured at the top are Charles G. Atherton and Samuel S. Phelps, the only New England Democratic and Whig Senators, respectively, to vote in favor of the Clayton Compromise bill.

Marcus Tullius Tyler?

Tall and thin, [president John] Tyler presented a strikingly aristocratic appearance. His most notable feature was a prominent Roman nose. The story was told that during his administration two Americans happened to be present in Naples when an excavation unearthed a bust of Cicero, prompting both to exclaim, "President Tyler!"

Steven E. Woodworth, Manifest Destinies: America's Westward Expansion and the Road to the Civil War.

The Clayton Compromise 3: The Compromise Bill

I've been debating how to proceed with my discussion of the Clayton Compromise. For better or worse I've decided to give you a brief overview of what the compromise bill proposed, so you can get your bearings. Then we'll take a closer look at the statutory language, to see how it implemented its plan.

The overview is via David M. Potter's magnificent The Impending Crisis, 1848-1861:

Under the bill that Clayton reported on July 18, [1848,] Congress would establish no restrictions on slavery; Oregon, when organized, would retain the laws against slavery which the provisional government had adopted; and the territorial legislatures of California and New Mexico would be denied any authority to make laws concerning slavery. The crucial feature of the bill, however, was the provision that any slave coming into these territories might sue in the federal courts to determine the legal status of slavery in the area to which he had been brought.

The Clayton Compromise was embodied in a bill presented to the Senate by the Committee of Eight chaired by Whig Senator John M. Clayton of Delaware. The bill, entitled A Bill to establish the Territorial Governments of Oregon, California and New Mexico, is lengthy; its thirty-six sections consume three and one-third densely-packed pages (ten columns) in the Congressional Globe. However, for our purposes it may be summarized with reasonable brevity.

As the title indicates, the bill sought to establish three territorial governments: Oregon (covering “that part of the territory of the United States which lies west of the summit of the Rocky Mountains and north of the forty-second parallel of latitude”); California (“all that part of the territories of the United States called Upper California, acquired by the treaty [of Guadalupe Hidalgo]”); and New Mexico (“all that part of the territories of the United States called New Mexico, acquired by the treaty [of Guadalupe Hidalgo]”). It is worth noting that the bill did not address the looming dispute as to the location of the border between Texas and the New Mexico territory.

The differences in the treatment of slavery between Oregon, on the one hand, and California and New Mexico, on the other, appear in two sorts of provisions in the bill: the “legislative power” granted to the territories and the ability to appeal slavery-related judicial decisions to the United States Supreme Court.

The "legislative power" provisions reflect two basic differences in the treatment of the proposed Territories: the locus of that power, and its extent. As to locus, Section 3 of the bill proposed to grant Oregon an elected "Legislative Assembly" consisting of a 13-member "Council" and a 26-member "House of Representatives." In California and Oregon, however, the "legislative power" would, "until Congress shall otherwise provide, be vested in the Governor, Secretary, and Judges of the Supreme Court" of the Territory - appointed officials.

When asked to account for the difference, Senator Clayton pulled no punches:

Mr. CLAYTON. The committee thought, in view of all the facts, that the people of California and New Mexico were not now in that state which fitted them to elect a delegate to Congress, or a territorial legislature. The gentleman [Whig Senator Thomas Corwin of Ohio], as a northwestern man, knows that many of our territories, in the first instance, had just such a form of government extended over them as is proposed in this bill for California and New Mexico. The next stage of territorial organization we have given to Oregon, and I think my friend from Ohio must admit that the character of the population of New Mexico renders them utterly unfit for self-government.

Mr. CORWIN. Will the Senator from Delaware allow me to ask another question? Why does he consider the people of New Mexico unfit for self-government?

Mr. CLAYTON. They are entirely too ignorant, and the gentleman probably knows that as well as I do.

More important for our purposes were the differences in the scope of the legislative power. The power granted to the territorial legislature of Oregon contained no restrictions concerning slavery. Section 6 extended that power “to all rightful subjects of the legislation consistent with the Constitution of the United States and the provisions of this act”:

Sec. 6. And be it further enacted, That the legislative power of the [Oregon] Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. All the laws passed by the Legislative Assembly shall be submitted to the Congress of the United States, and if disapproved shall be null and of no effect.

In addition, a separate section, Sec. 12, provided that (in the words of David P. Currie) "[l]aws enacted by the wildcat 'provisional government' of Oregon (which had purported to ban slavery) were to remain in force temporarily":

Sec. 12. And be it further enacted, That the existing laws now in force in the Territory of Oregon, under the authority of the provisional government established by the people thereof, shall continue to be valid and operative therein, so far as the same be not incompatible with the Constitution and the provisions of this act, for three months after the first meeting of the Legislature in said Territory; subject, nevertheless, to be altered, modified, or repealed, by the Legislative Assembly of the said Territory of Oregon; and the Constitution and laws of the United States are hereby extended over and declared to be in force in said Territory, so far as the same, or any provision thereof, may be applicable.

The sections of the bill dealing with the legislative power of the California and New Mexico territories contained no provision corresponding to Section 12 (although it may well be, as we shall see in later posts, that Mexican law barring slavery remained in effect there). The sections corresponding to Section 6 expressly barred the passage of any law “respecting the prohibition or establishment of African slavery.” Here is Section 26, defining the legislative power of the California territory (emphasis added):

Sec. 26. And be it further enacted, That the legislative power of said [California] Territory shall, until Congress shall otherwise provide, be vested in the Governor, Secretary, and Judges of the Supreme Court, who, or a majority of them, shall have the power to pass any law for the administration of justice in said Territory, which shall not be repugnant to this act, or inconsistent with the laws and Constitution of the United States. But no law shall be passed interfering with the primary disposal of the soil, respecting an establishment of religion, or respecting the prohibition or establishment of African slavery; and no tax shall be imposed upon the property of the United States; nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents. All the laws shall be submitted to the Congress of the United States, and, if disapproved, shall be null and of no effect.

Section 33, defining the legislative power of the New Mexico territory, was substantially identical to Section 26.

The other difference between Oregon on the one hand and California and New Mexico on the other concerned appeals to the United States Supreme Court. To simplify just a bit, for each territory the legislation created district courts and a territorial Supreme Court. The district courts were the trial courts. District court judgments could be appealed the territorial Supreme Court. And decisions of the territorial Supreme Court could be appealed to the United States Supreme Court.

The provisions relating to procedures in and appeals from Oregon territorial courts contained no special allowances for slavery cases. Section 9 provided in relevant part that appeals from the territorial Supreme Court to the United States Supreme Court could be taken to the same extent that such appeals could be taken from federal circuit courts:

Writs of error and appeals from the final decisions of said supreme court [of Oregon Territory] shall be allowed, and may be taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, and each of the said district courts shall have and exercise the same jurisdiction in all cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts of the United States . . ..

In California and New Mexico territories, however, the bill facilitated the commence of slavery-related cases and their appeal to the United States Supreme Court. Here was the heart of the bill. As David Currie has explained, Sections 24 (California) and 31 (New Mexico) were intended to set the stage "for judicial resolution of the vexing question of slavery in the territories" by "remov[ing] possible obstacles to Supreme Court review that had been suggested during the debates".

In "cases involving title to slaves" the normal jurisdictional amount of $2,000 was waived, and the [United States Supreme] Court was specifically authorized to review decisions of territorial courts in habeas corpus cases "involving the question of personal freedom."

Section 24, dealing with California territory provided in relevant part (and Section 31, dealing with New Mexico, was substantially identical):

Writs of error and appeals from the final decisions of said supreme court [of California Territory] shall be allowed, and may be taken to the Supreme Court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, except only that in all cases involving title to slaves, the said writs of error or appeals shall be allowed and decided by the said supreme court [of the Territory] without regard to the value of the matter, property, or title in controversy; and except also that a writ of error or appeal shall be allowed to the Supreme Court of the United States from the decision of the supreme court created by this act [i.e., the supreme court of the Territory], or any judge thereof, or of the district courts created by this act, or of any judge thereof, upon any writ of habeas corpus, involving the question of personal freedom . . ..

About the illustration at the top (1852):

A symbolic group portrait eulogizing recent legislative efforts, notably the Compromise of 1850, to preserve the Union. The work is in some respects a memorial to the triumvirate of senior American legislators: Henry Clay, John Calhoun, and Daniel Webster, who appear in the center of the group. All three were deceased by the end of 1852. (Calhoun died on March 31, 1850, Clay on June 29, 1852, and Webster on October 24, 1852). The print's publisher may have sought to take advantage of the optimistic climate which followed passage of the Compromise of 1850. As a commemoration of this legislative achievement, however, its hagiography is faulty--perhaps in the interest of wider appeal. John Calhoun, the central standing figure, opposed the compromise and died well before its passage, whereas key figures in the legislative battle for its acceptance, such as Senator James M. Mason of Virginia, are not shown here at all. Aside from Calhoun, the men portrayed here were generally considered friendly to the compromise, some of them being members of the Senate's Committee of Thirteen, many from the South. The print may also relate to the debates surrounding the presidential campaign of 1852. Both Whig and Democratic parties formally endorsed the compromise in their respective 1852 platforms. Whig presidential candidate Winfield Scott (prominent at far left) had lobbied strenuously on behalf of the compromise. The absence of Scott's Democratic rival Franklin Pierce may be explained by the fact that the print appeared before the dark-horse candidate's nomination in early June. (The print was deposited for copyright on May 27, 1852.) The figures pictured here are (front row, left to right): Winfield Scott, Lewis Cass, Henry Clay, John Calhoun, Daniel Webster, and (holding a shield) Millard Fillmore. Calhoun and Webster stand with their hands resting on the Constitution, a bust of George Washington between them. Cass holds a document "Protest [illegible] Treaty." Scott, in uniform, grasps with his right hand a portfolio from which protrude papers and maps recalling his Mexican War victories. In the left background are (left to right): Speaker of the House Howell Cobb of Georgia, Virginia representative James McDowell, Thomas Hart Benton of Missouri, and former secretary of state John M. Clayton of Delaware. In the second row at right: Ohio senator Thomas Corwin, James Buchanan, Stephen A. Douglas, attorney general John J. Crittenden, and senators Sam Houston of Texas and Henry Foote of Mississippi. Behind, beneath a genius carrying a laurel branch and liberty staff, are senators Willie P. Mangum of North Carolina and W. R. King of Alabama. At far right, below an eagle, are Daniel S. Dickinson of New York, Supreme Court justice John McLean of Ohio, and senators John Bell of Tennessee and John C. Fremont of California. In the background curtains are drawn to reveal a gleaming temple with a colonnade surmounted by a large ball, a figure holding a liberty cap, and a phoenix.

The Tallis Scholars Tomorrow

Seeing the Tallis Scholars tomorrow night at Alice Tully Hall. Very excited. If you don't know them, you should.

The Political Economy of the Roman Republic

Haven't read it yet, but lawprof Eric A. Posner has posted what looks like an interesting article on SSRN, The Constitution of the Roman Republic: A Political Economy Perspective:

The constitution of the Roman Republic featured a system of checks and balances that would eventually influence the American founders, yet it had very different characteristics from the system of separation of powers that the founders created. The Roman senate gave advice but did not legislate; the people voted directly on bills and appointments in popular assemblies; and a group of magistrates, led by a pair of consuls, proposed bills, brought prosecutions, served as judges, led military forces, and performed other governmental functions. This paper analyzes the Roman constitution from the perspective of agency theory, and argues that the extensive checks and balances, which were intended to prevent the recurrence of monarchy, may have gone too far. Suitable for an earlier period in which the population was small and the political class was homogeneous, the constitution proved unworkable when Rome acquired a vast, diverse empire. The lessons of Roman constitutionalism for the American constitution are also discussed.

Over at Volokh, lawprof Ilya Somin admires the article but dissents from the conclusion:

Eric makes many interesting points, and I learned a lot from the paper. But I disagree with the bottom-line conclusion that the Roman Republic failed because it had too many checks and balances, which led to paralysis and gridlock. Even in its last, most dysfunctional century, the Republic repeatedly vanquished powerful foes, including monarchs such as Mithridates of Pontus, Eric’s argument that monarchy was a more efficient form of government during this period notwithstanding. The Republic also undertook various important new domestic policy initiatives, including expanding the citizenship and granting land to enormous numbers of military veterans. This is not the sign of a polity paralyzed by gridlock.

On balance, I tend to agree with the more conventional view that the Republic failed not because of gridlock, but because of agency problems: the Senate and people gradually lost control of the larger and larger military forces needed to defend their growing empire. These forces were increasingly more loyal to their immediate commanders than to the state. As a result, unscrupulous generals such as Marius, Sulla, and ultimately Caesar could use “their” troops to seize power. This problem probably could not be easily solved in a large empire during an era when communications were difficult and slow and the central government could not readily control far-flung standing armies. Indeed, the same problem eventually played a decisive role in bringing down the empire that replaced the republic.