Tuesday, September 30, 2008

Helen of Sidon?

Come to think of it, what was Paris doing with Helen in Sidon anyway? Sidon is not on the way from Sparta to Troy. Maybe Herodotus has a point: did Homer know?
This heard, she [Hecuba, Priam's wife] gave command; and summon'd came
Each noble matron, and illustrious dame.
The Phyrgian queen to her rich wardrobe went,
Where treasure'd odors breath'd a costly scent.
There lay the vestures, of no vulgar art,
Sidonian maids embroider'd every part,
Whom from soft Sidon youthful Paris bore,
With Helen touching on the Tyrian shore.

Monday, September 29, 2008

Helen and Herodotus Say, "Wow!"

My brief post on Helen of Memphis unleashed a veritable avalanche of learned commentary about Herodotus's treatment of Helen and related subjects. Thank you all, and my complements.

While I have you, may I ask a question? What's the current learning on where or how the alternate Helen-went-to-Egypt story got started? Stesichorus's (640-555?) wonderful Palinode indicates that the idea was already floating around before Herodotus composed his Histories. I don't buy Herodotus's argument that certain passages of Homer suggest that "Homer" was aware of the variant. Did Stesichorus start the whole thing? Or maybe he visited Egypt, or heard the story from someone who did?

Sunday, September 28, 2008

Helen of Memphis

Egyptian priests told Herodotus that, after Paris abducted Helen, violent winds drove him off course, and he landed in Egypt. Paris was forced to leave Helen there, and he sailed on alone to Troy. Helen spent the Trojan War in Memphis.

Herodotus credits the story, and his reasoning is just wonderful:
That is what the Egyptian priests said, and I agree with their argument, considering that if Helen had been in Troy, the Trojans would certainly have returned her to the Hellenes, whether Alexandros [another name for Paris] concurred or not. For neither Priam nor his kin could have been so demented that they would have willingly endangered their own persons, their children, and their city just so that Alexandros could have Helen. Surely the Trojans would have realized this even in the first years of the war and would have given her up. After all, many Trojans were being killed whenever they joined combat with the Greeks, and the sons of Priam himself were dying in every battle, two or three at a time, and sometimes even more.

Tench Coxe

Tench Coxe is one those second-rank Founders you run across from time to time but never really focus on -- except for that great name. I think of him chiefly as Alexander Hamilton's assistant at the Treasury during the Washington administration.

It turns out that Coxe was a smart, interesting and important fellow. I bring him up because I recently stumbled across an article entitled Tench Coxe and the Right to Keep and Bear Arms, 1787-1823. Although the article focuses (as the title suggests) on Second Amendment issues, you can skip over the technical stuff and read it as a mini-biography of Coxe. Here's the summary:
Tench Coxe, a member of the second rank of this nation's Founders and a leading proponent of the Constitution and the Bill of Rights, wrote prolifically about the right to keep and bear arms. In this Article, the authors trace Coxe's story, from his early writings in support of the Constitution, through his years of public service, to his political writings in opposition to the presidential campaigns of John Adams and John Quincy Adams. The authors note that Coxe described the Second Amendment as guaranteeing an individual right, and believed that an individual right to bear arms was necessary for self-defense and hunting, as well as for militia purposes and protection against oppression by large standing armies.

The views of this important Founding Era political commentator and public servant inform the ongoing Second Amendment debate. The authors argue that Coxe's depiction of an individual right to bear arms encompassing hunting, self-defense, and the public militia power supports the "Standard Model" of the Second Amendment prevalent in the legal literature.

This Article also discusses Coxe's important role as an economic scholar in early America, and in the creation of the protectionist system of the early Republic, as both an journalistic advocate and as an executive branch official. One of his executive branch positions involved heading the federal government program to give guns to militiamen who could not afford their own.

Harry and Casey

Click to enlarge.

Saturday, September 27, 2008

Ari and Molly Moo

Click to enlarge.

Albert Sidney Johnston

Civil War buffs (yes, they're always "buffs") like to ruminate over the "what ifs" surrounding Albert Sidney Johnston.

I've come to believe that A.S. Johnston was overrated. He was no doubt a tremendously impressive man in person -- witness the tremendous respect that Jefferson Davis and others held for him. But like everyone before the War, he had never really been tested. He handled Donelson poorly, and I was particularly stunned to learn that he had no idea that Nashville had been left undefended until he arrived there during his retreat from Bowling Green. His inexplicably excessive delegation to, and failure to supervise, Beauregard also contributed mightily to the confusion, delay and failure during the first day of Shiloh.

One of the great ironies of the War is the fact that it showed that prior reputation meant nothing. The crucible of war exposed the shortcomings of highly-respected men such as Jefferson Davis and George McClellan (sorry again, Dimitri!); "losers" such as Ulysses Grant, William Sherman and Stonewall Jackson turned out to be the men who had what it took. (Robert E. Lee was the exception that proved the rule.)

I don't mean to be too harsh on General Johnston. Virtually all generals, on both sides, appointed to major commands at the beginning of the War failed, probably because they had no opportunity to absorb the reality of how different the War was from their prior experiences. Second-generation leaders such as Grant and Sherman (and Lee?) had the luxury of absorbing the scale of the war and learning from their experiences before they took command.

Obama Emulates Jefferson

At the urging of the Obama campaign, local Missouri prosecutors and sheriffs have formed a "Barack Obama Truth Squad" to threaten and prosecute people who dare criticize the Senator.

Yesterday, Missouri Governor Matt Blunt denounced those tactics. I was pleased to see the (highlighted) reference to the Sedition Act:
JEFFERSON CITY - Gov. Matt Blunt today issued the following statement on news reports that have exposed plans by U.S. Senator Barack Obama to use Missouri law enforcement to threaten and intimidate his critics.

“St. Louis County Circuit Attorney Bob McCulloch, St. Louis City Circuit Attorney Jennifer Joyce, Jefferson County Sheriff Glenn Boyer, and Obama and the leader of his Missouri campaign Senator Claire McCaskill have attached the stench of police state tactics to the Obama-Biden campaign.

“What Senator Obama and his helpers are doing is scandalous beyond words, the party that claims to be the party of Thomas Jefferson is abusing the justice system and offices of public trust to silence political criticism with threats of prosecution and criminal punishment.

“This abuse of the law for intimidation insults the most sacred principles and ideals of Jefferson. I can think of nothing more offensive to Jefferson’s thinking than using the power of the state to deprive Americans of their civil rights. The only conceivable purpose of Messrs. McCulloch, Obama and the others is to frighten people away from expressing themselves, to chill free and open debate, to suppress support and donations to conservative organizations targeted by this anti-civil rights, to strangle criticism of Mr. Obama, to suppress ads about his support of higher taxes, and to choke out criticism on television, radio, the Internet, blogs, e-mail and daily conversation about the election.

“Barack Obama needs to grow up. Leftist blogs and others in the press constantly say false things about me and my family. Usually, we ignore false and scurrilous accusations because the purveyors have no credibility. When necessary, we refute them. Enlisting Missouri law enforcement to intimidate people and kill free debate is reminiscent of the Sedition Acts - not a free society.

Governor Blunt gets his history wrong in one respect, however. As a politician, the governor presumably felt that he had to make a nod toward the sainted Jefferson. I do not. The ironic fact is that Jefferson had no more respect for free speech than Obama has -- Obama is only following in the steps of his party's founder.

Although Jefferson protested vehemently against the federal Alien and Sedition Acts, aimed against his allies, once he was in power he did not hesitate to unleash state prosecutions against his enemies. Joseph Ellis, tiptoeing a little, puts it this way:
"This is a dangerous state of things," [Jefferson] explained to Thomas McKean of Pennsylvania [in 1803], "and the press ought to be restored to credibility if possible." He did not have anything so heavy-handed as the Sedition Act in mind. Instead he suggested that Republican governors in selected states target the most offensive Federalist editors for libel: "And I have therefore long thought," he apprised McKean, "that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution [i.e., the Federalist approach with the Sedition Act], but a selected one." Governors McKean in Pennsylvania and De Witt Clinton in New York took the suggestion as a command to release their lawyers on the most recalcitrant Federalist editors. As Jefferson saw it, he was not violating a principle so much as rescuing it from its own abusive and self-destructive tendencies.

Here is a more extended excerpt from Jefferson's February 19, 1803 letter to Governor McKean:
On the subject of prosecutions, what I say must be entirely confidential [and no wonder!], for you know the passion for torturing every sentiment & word which comes from me [notice the self-righteousness and paranoia]. The federalists having failed in destroying the freedom of the press by their gag-law [i.e., the Sedition Act], seem to have attacked it in an opposite form, that is by pushing it's [sic] licentiousness & it's [sic] lying [lies! all lies!] to such a degree of prostitution [licentious prostitution!] as to deprive it of all credit. And the fact is that so abandoned are the tory [what's a little slur among friends?] presses in this particular that even the least informed of the people have learnt that nothing in a newspaper is to be believed [so what else is new? and if no one believes them, what's the problem?]. This is a dangerous state of things, and the press ought to be restored to it's [sic] credibility if possible. The restraints provided by the laws of the states are sufficient for this if applied. And I have therefore long thought that a few prosecutions of the most prominent offenders would have a wholesome [wholesome!] effect in restoring the integrity of the presses. Not a general persecution [no, that's not a typo]: but a selected one. The paper I now inclose appears to me to offer as good an instance in every respect to make an example of as can be selected. However of this you are the best judge. I inclose it lest you should not have it [sure!]. If the same thing be done in some other of the states it will place the whole band more on their guard subtly put there, Tom]. Accept my friendly salutations & assurances of my high respect & consideration.

The tendency of liberalism to morph into authoritarianism seems to be universal.

The Fugitive Slave Act of 1793 12: Justice Story Buys the Myth

The most extraordinary thing about Justice Story’s opinion in Prigg is that it rests on a myth.

After the preliminaries (facts, procedural history, complements to the parties, the sensitive nature of the case), Justice Story began his substantive analysis by embracing and incorporating the myth of the Fugitive Slave Clause’s creation. I have emphasized key words and phrases:
Historically, it is well known that the object of [the Fugitive Slave Clause] was to secure to the citizens of the slave-holding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slave-holding States, and indeed was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.

As I explained in an earlier post, this creation myth of the Fugitive Slave Clause is pure fantasy. In the next paragraph, Story admitted that, but for the Clause, slaveholding states had no protection against non-slave states freeing runaways coming within their borders. Although Story asserted that this buttressed his conclusion about the nature of the Clause, quite the opposite is true: any protection that the Clause provided slaveholding states was better than nothing.

Furthermore, there is nothing in the historical record (and Story cited nothing) indicating that an all-encompassing Fugitive Slave Clause was part of a “fundamental” bargain “without the adoption of which the Union could not have been formed.” In his argument (which Justice Story ignored), the Attorney-General of Pennsylvania had explained that the historical record supported placing exactly the opposite spin on the myth:
[S]ymptoms of repugnancy to slavery began to be manifested in Pennsylvania and other states [in the 1780s]; and the southern states were apprehensive that it might, at some future day, interfere with the recovery of their property. They desired a guarantee from the general government; not that that government should provide for redelivery of their fugitive slaves, but that the constitution of the Union should prohibit the states from passing laws declaring them to be free. The provision of the constitution under consideration furnishes this guarantee; it never was intended for more. See Elliot’s Debates, 335, 336; Mr. Madison’s and Governor Randolph’s speeches in the Virginia convention.

Justice Story assumed that slave states would not have adopted the Constitution without a clause guaranteeing them an “unqualified right” to recapture. But the Pennsylvania Attorney-General pointed out that it was equally plausible to assert that non-slaveholding states would have refused to join the Union if the clause had not been narrowly drawn:
Had the southern states demanded more than this simple guarantee [that states should be prohibited from passing laws declaring fugitive slaves to be free]; had they required that the right of the states to prescribe the mode of surrendering up fugitive slaves should be yielded to congress exclusively; we know not but it might have jeoparded [sic?] the formation of the Union itself. It is well known, the word “slave” is not found in the constitution. That it was excluded on account of the scruples of certain of the northern members of the convention; and had these members been told, that they were depriving the states they represented of the power of directing the mode in which fugitive slaves were to be redelivered to their masters, who can doubt, that they would have rejected with indignation, any instrument of government, containing such a surrender of state sovereignty as this?

Wednesday, September 24, 2008


Just an experiment. Click to enlarge.

George Meets David?

I'm playing with a new camera this evening, so I'll keep it short.

For you McClellan lovers (hi, Dimitri!) -- and Bush haters (hi, everyone else!) -- here's an article guaranteed to raise your blood pressure, by Mackubin Thomas Owens, one of my favorite military writers: Our Generals Almost Cost Us Iraq. Here's a taste:
In late 2006, President Bush, like President Lincoln in 1862, adopted a new approach to the war. He replaced the uniformed and civilian leaders who were adherents of the failed operational approach with others who shared his commitment to victory rather than "playing for a tie." In Gen. David Petraeus, Mr. Bush found his Ulysses Grant, to execute an operational approach based on sound counterinsurgency doctrine. This new approach has brought the U.S. to the brink of victory.

Have a nice day.

Tuesday, September 23, 2008

Joe Biden, Meet Herbert Hoover

I usually grit my teeth and keep the political stuff to a minimum. But now I have an excuse: this is a history post.

Joe Biden really is the gift that keeps on giving:
When the stock market crashed, Franklin Roosevelt got on the television and didn't just talk about the princes of greed. He said, "look, here's what happened."

I'll let you figure out what the problem is -- er, make that "problems are."

Monday, September 22, 2008

The Texas Tots May Still Live

To recap, I posted a couple of items recently concerning an article, Let’s Mess With Texas, in which Vasan Kesavan and Michael Stokes Paulsen argued that Texas retains to the present day the right to divide itself into as many as five states. The original March 1, 1845 Joint Resolution by which Congress granted consent to the erection of the State of Texas included a provision by which Congress authorized the later creation of up to four additional states (five in total, including Texas) from the territory of the former Republic of Texas. The authors took the position that that congressional authorization remained in effect, and that Texas remained free to take advantage of it at any time.

In a comment here and in a post at his own Millard Fillmore’s Bathtub, Ed Darrell questioned this conclusion. In particular, Ed suggested that the events surrounding Texas’s secession from and restoration to the Union in the 1860s may have fundamentally changed the basis of Texas’s membership as a state in the Union and explicitly or implicitly superseded the March 1, 1845 Joint Resolution and Congress’s consent to the creation of what I will refer to as the “Texas Tots.”

Ed’s point seemed substantial, and the article did not address it. I therefore decided to take a closer look. Ed helpfully included a link to the major legislative provisions and executive proclamations relating to the secession and restoration of Texas, which I have reviewed. Here are my thoughts.

My provisional view is that the continued viability of the Texas Tots depends on how far one is willing to press the legal fictions that underlay the position that the Union took concerning secession and reunion during the Civil War and Reconstruction. Ironically, another article by the same authors, Is West Virginia Unconstitutional?, provides an excellent framework for constructing an argument that the Texas Tots still live.

Without going into mind-numbing detail, the West Virginia article analyzes the constitutionality of the process by which West Virginia became a state during the Civil War. The article is effectively divided into two parts. The second part of the article discusses Article IV, Section 3; while interesting in its own right, it need not detain us here. For present purposes, it is the first part of the article (the first 42 pages, through page 332) that contains the analysis incorporated below.

Very briefly, the position that Abraham Lincoln took from the beginning of the War and maintained throughout was that the Union was permanent; states could not legally leave the Union, except perhaps via constitutional amendment (or by extra-legal right of revolution). It followed that the purported secession of a state was a legal nullity – in Lincoln’s words, “legally void.”

The “so-called seceded States” had not, as a legal matter, seceded. Rather, disloyal individuals in southern states had joined in combinations too powerful to be suppressed by the ordinary course of judicial proceeds – an illegal “rebellion.”

Under the insurrectionary governments purportedly formed by these rebellious combinations were unlawful and void. Under the Guarantee Clause, the Executive Branch was entitled to refuse to recognize them, and Congress was entitled to refuse to seat their Senators and Congressmen. Sovereignty in those states in rebellion reverted to those citizens who remained loyal. If and when those citizens were able to form a new government, the United States was entitled to recognize it. Indeed, the task and duty of the federal government was to suppress the unlawful combinations that had arisen to the point that loyal citizens could form new governments that the federal government could recognize.

In most cases, the remaining loyal citizens of southern states in rebellion were unable to reassemble loyal governments during the War. West Virginia, however, was the exception that demonstrated the theory. After the purported secession of Virginia, the people of Virginia reassembled themselves in convention in Wheeling, declared state offices vacant, and reconstituted a state government composed of loyal citizens who recognized the authority of the federal government. The federal government, in turn, recognized that government as the legitimate government of Virginia, and Congress seated its senators and representatives. When that government, on behalf of Virginia, consented to the creation of the state of West Virginia out of a portion of the territory of Virginia, the federal government likewise deemed that consent sufficient to satisfy the requirement of Article IV, Section 3 that constitutional requirement of consent of the state out of which the new state was being created.

The various Reconstruction statutes and edicts linked by Ed Darrell likewise appear to be consistent with this analysis. The states had never gone out of existence and continued to exist. In Texas and other states, the laws of the United States had been opposed and their execution obstructed “by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by law. When the “insurrection” had been “suppressed”, President Johnson proclaimed in 1866 that “the insurrection which heretofore existed in the State of Texas is at an end.”

Although Congress disagreed with President Johnson on many issues, Congress too looked to the same basic framework in imposing military reconstruction in 1867. Whether or not the “insurrection” had been “suppressed”, in Congress’s view the people of those states had not yet established loyal governments worthy of recognition by the federal government and capable of adequately protecting life and property:
[N]o legal State governments or adequate protection for life or property now exists in the rebel States . . . and . . . it is necessary that peace and good order should be enforced in said States until loyal and republican State governments can be legally established . . ..

In those acts (passed over President Johnson’s veto) and in subsequent legislation signed by President Grant, Congress specified both the requirements it would insist on – both procedural and substantive – before it would recognize that the resulting state governments were loyal and republican and therefore entitled to representation in Congress.

I do not see anything in these provisions that voided the March 1, 1845 Joint Resolution in general or the Texas Tots provision in particular. The March 1 Resolution provided that Texas would be admitted as a state when its people established “a republican form of government.” In its subsequent Joint Resolution of December 29, 1846, which incorporated the March 1, 1845 Joint Resolution, Congress recognized that the people of Texas had, in proper form, established a constitution and government in the required form, admitted Texas as a state, and declared that it was entitled to representation in the federal legislature.

In 1861, Texas ceased to have a government recognized by the United States as republican. Sovereignty reverted to the people. But this does not mean that the state ceased to exist. To the contrary, the state remained a member of the Union, entitled to have its congressional delegation seated when its people reestablished a loyal, republican government. The only thing that changed was that the requirements for a “republican” government had changed and become more stringent. To this extent, perhaps, the Reconstruction acts may be seen as modifying the requirements of the Joint Resolution – but not voiding or repealing it.

Likewise, the Texas Tots provision stated that the Tots would be "entitled to admission under the provisions of the federal constitution". The requirements "under the provisions of the federal constitution" may have changed between 1845 and 1869, but the principal remained the same. Again, there is no reason to conclude that the Reconstruction acts voided the Texas Tots provision of the Joint Resolution.

Sunday, September 21, 2008

James Madison, Laff Riot

Face it, James Madison was usually not not a party guy. The black clothes, the soft voice, the shy demeanor. In fact, I realized today that I'm aware of only one time that James Madison is described as having laughed out loud. Ironically, it was toward the end of the War of 1812. James Madison was president, his capital was a smoking ruin, New Englanders had been meeting in secret session in Hartford, muttering about secession.

No matter. When the grievances and demands of the Hartford Convention were presented to him, James Madison couldn't control himself:
The proposed amendments to the Constitution [of the Hartford Convention] descended to such pettiness as one aimed at [the Swiss-born Albert] Gallatin (denying any federal office to the foreign born) and another aimed at [James] Madison (prohibiting successive presidents from the same state), Madison laughed out loud when he read them -- partly, no doubt. in relief that the volcanic mountain had produced such a mouse.

Gary Wills, James Madison, at 146.

The picture, by the way, is not of James Madison, the president; it's of his father, James Madison, Sr., who also appears to have been a fairly serious sort.

Saturday, September 20, 2008

Was Millard Tilting at Windmills in 1856?

Some time ago, I wrote a series of posts about Millard Fillmore's run for the presidency on the American Party (Know Nothing) ticket in 1856. It occurred to me that I should round off that discussion by addressing one additional issue. Millard wound up receiving only 21% of the vote and a grand total of eight -- count 'em, eight -- electoral votes. All of which raises the question, What was he thinking? Was the guy delusional, living in some sort of fantasy world imagining that he could win?

The answer to these questions is "no." After the Republicans coopted the northern wing of the American Party, it became clear that Millard's task was to deny either of the other candidates a majority of the electoral college votes. As David M. Potter observed, "If Fillmore could carry a few southern states, he might throw the election into the House of Representatives, where there would be a good chance of his being chosen."

In fact, Fillmore came extremely close to achieving that goal. James Buchanan carried 174 electoral votes: 60 more than John C. Fremont's 114, but only 25 more than the absolute majority of 149 (out of 296 total) required to avoid throwing the election into the House.

Millard almost got those 25 additional votes. Professor Potter again: "[A]lthough Fillmore appeared to be overwhelmingly beaten, a percentage change of less than 3 percent of the popular vote (or of 8,016 votes) in Kentucky, Tennessee and Louisiana would have given Fillmore enough electoral votes to throw the contest into the House of Representatives."

Here are the figures for the three key states:

ST (EV) Total Buchanan Fillmore Difference

KY (12) 142,058 74,642 52.5% 67,416 47.5% 7,226

LA (6) 42,873 22,164 51.7% 20,709 48.3% 1,455

TN (12) 133,582 69,704 52.2% 63,878 47.8% 5,826

If Millard had been able to add the thirty electoral votes of these three states to his column, Buchanan would have wound up with 144 -- five fewer than the 149 he needed. (The above figures indicate that a shift of 7,256 votes would have been sufficient to change the results, rather than Professor Potter's 8,016 votes. I'm not sure where the discrepancy lies.)

Friday, September 19, 2008

Helen, to Menelaus

"Know that I have saved myself untouched for you."


Helen and Priam

The good old Priam welcom'd her, and cry'd,
"Approach my child, and grace thy father's side,
See on the plain thy Grecian spouse appears,
The friends and kindred of thy former years.
No crime of thine our present suff'rings draws,
Not thou, but Heav'ns disposing will, the cause;
The gods those armies and this force employ,
The hostile gods conspire the fate of Troy."

Tuesday, September 16, 2008

Helen of Troy

There sate the seniors of the Trojan race,
(Old Priam's chiefs, and most in Priam's grace)
The king the first; Thymoetes at his side;
Lampus and Clytius, long in council try'd;
Panthus, and Hicetaon, once the strong,
And next the wisest of the rev'rend throng,
Antenor grave, and sage Ucalegon,
Lean'd on the walls, and bask'd before the sun.
Chiefs, who no more in bloody fights engage,
But wise thro' time, and narrative with age,
In summer-days like grasshoppers rejoice,
A bloodless race, that send a feeble voice.
These, when the Spartan queen approach'd the tow'r,
In secret own'd resistless beauty's pow'r;
They cry'd, "No wonder such celestial charms
For nine long years have set the world in arms;
What winning graces! what majestick mien!
She moves a goddess, and she looks a queen!
Yet hence oh Heav'n! convey that fatal face,
And from destruction save the Trojan race."

Do the "Texas Tots" Still Live?

If you’re reading this blog, you probably already know that the March 1, 1845 Joint Resolution for Annexing Texas to the United States included a provision that permitted the later division of the state into a total of up to five states. Section 1 of the Joint Resolution contained Congress’s consent that the Republic of Texas could be “erected into a new State, to be called the State of Texas.

Section 2 contained three “conditions” and “guarantees” upon which Congress gave its consent. The third condition permitted the future division of the state with its consent:
Third. New States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by the consent of the said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution. . . .

Upon reading Let’s Mess With Texas, I immediately had one of those “Why didn’t I think of that?” moments. In their article, the authors, Vasan Kesavan and Michael Stokes Paulsen, argue that the Joint Resolution remains in effect: Texas may, at any time, reconstitute itself into five states:
We think that this “[n]ew States” language contained in the second section of the Joint Resolution of March 1, 1845, which we will refer to as the “Texas Tots provision,” gives Texas the legal entitlement to reconstitute itself as five states, now, by simple act of the Texas Legislature, and with the consent of each of the new states thereby created – a tricky mega-redistricting political problem to be sure, but probably not an impossible one. But no further legislative action by Congress is necessary for Texas constitutionally to have permission to become five Texas Tots. There may be details to work out – t’s to cross and i’s to dot. But the constitutionally necessary consent [of Congress] was given long ago, remains in effect today, and has not been superseded or impliedly repealed by any other provision of federal law.

In response to a recent post, Ed Darrell was kind enough to leave a comment questioning the authors' conclusion. Ed observed:
I think most authorities hold that Texas's right, if it ever was valid, died with Texas's secession from the union. In any case, the readmission process following the Civil War did not allow for five states to be carved out of Texas.

He added further background in a post at his blog, Millard Fillmore's Bathtub.

I'm going to take another look at the article. If that doesn't address Ed's issue, I may reach out to the good professor and see whether I can get a response.

Helen of Troy?

The story I told is not true;
Never did you sail in the well-decked ships,
Never did you come to the towers of Troy.


Monday, September 15, 2008

Texas and West Virginia

Having recently read and enjoyed a Michael Stokes Paulsen article entitled Lincoln and Judicial Authority, I checked to see what other works of his are available on SSRN. I've downloaded two that look quirky and interesting:

Is West Virginia Unconstitutional?:
When the Commonwealth of Virginia announced it was seceding from the Union, the northwestern corner of Virginia formed a rump government-in-exile, declared itself the lawful government of Virginia, and gave "Virginia's" consent to the creation of a new State of West Virginia consisting of essentially the same northwestern corner of old Virginia. Congress and the Lincoln administration recognized the northwestern rump as the legitimate government of Virginia, and voted to admit West Virginia as a State.

Could they do that? This article takes on the odd but amazingly complicated (and occasionally interesting) constitutional question of whether West Virginia is legitimately a State of the Union or is instead an illegal, breakaway province of Virginia. While scarcely a burning legal issue in the twenty-first century, the question of West Virginia's constitutionality turns out to be more than of just quaint historical interest, but also to say a great deal about textualism and formalism as legitimate modes of constitutional interpretation today.

And Let's Mess With Texas:
Texas Republicans have been thinking waaaaay too small. The redistricting battles of 2003-2004 are nothing compared to the powerful political potential posed by Texas's prerogative, confererred by an Act of Congress, to divide itself into five states. A relatively obscure provision of the 1845 Joint Resolution for Annexing Texas to the United States provides that [n]ew States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution. This Essay argues, building on our earlier work concerning the constitutionality of the creation of West Virginia, that Article IV, Section 3 of the Constitution permits new states to be carved out of existing ones, with the consent of Congress and the states involved. The New States language of the 1845 Joint Resolution, the Texas Tots provision, constitutes the still-operative, legally-valid grant of Congress's consent to Texas's subdivision into five states. All that remains is for Texas to take up Congress's standing offer.

Sarah and Hillary

I haven't watched Saturday Night Live in twenty-five years or so, but I really enjoyed this one.

The Fugitive Slave Act of 1793 11: A Hypothetical Decision

This is proving to be a very long series. Before looking at what the Supreme Court actually did in Prigg, I thought I should sum up what amounts to the prologue by laying out what I think the court should, or at least could, have done.

As I have indicated, I believe a fair reading of the Fugitive Slave Clause shows it to have been quite limited in scope. It (a) forbade states from freeing slaves who escaped into them, and (b) required states to “deliver up” fugitive slaves. Nothing in the Clause forbade states from establishing reasonable procedures regulating the manner in which masters were to make applications for arrest and delivery of fugitives. Likewise, nothing in the Clause barred states from declaring that willful violation of those procedures amounted to kidnapping, punishable as a felony.

So too with the Fugitive Slave Act. Even assuming that Congress had the power under the Constitution to pass the Act – an issue that the Supreme Court did not have to decide – Section 3 simply gave a master the additional right to seize the alleged fugitive and then turn the fugitive over to a state or federal judge for a final determination. States could not impose procedures on federal courts, but nothing in Section 3 forbade states from establishing procedures governing the practices of their own courts. Likewise, nothing in the Act barred states from criminalizing the willful failure to obtain a certificate from some judicial authority, state or federal.

That is precisely what Edward Prigg did here. After he failed to obtain a certificate from the state justice of the peace, he had the right and the obligation to apply to another state judge, or, failing that, to a federal judge. He did not do so. Instead, he simply kidnapped Margaret Morgan and her children. The Commonwealth of Pennsylvania was, I believe, entitled to punish this conduct.

In short, it seems to me that the Supreme Court could have affirmed Prigg’s conviction and sidestepped virtually all the constitutional issues. As I’m sure you know, that is not the route the Court chose to take.

Secession and Coercion: How Would the Supremes Have Ruled in 1861?

I’ve written before on President Buchanan’s expressed opinion, in his final state of the union message to Congress, that, although secession was unconstitutional, the federal government lacked the power to prevent it. The five posts on the topic are entitled "President Buchanan and the Militia"; the first may be found here.

In his wonderful article on Abraham Lincoln’s views (and actions) relating to judicial supremacy, Lincoln and Judicial Authority, Professor Michael Paulsen speculates that, if the secession/coercion issue had reached the Supreme Court, Chief Justice Roger B. Taney might have persuaded a majority of his colleagues to issue a ruling along the same lines:
There is clear historical evidence that Chief Justice Taney held much the same position [as that expressed by Buchanan] and had written it up at fair length in private correspondence. There seems little doubt that, had the issue been presented to him in judicial form at the Supreme Court, and had the supporting votes (which was likely, at least before Southern Justices resigned), Taney would have had little hesitation in ruling against the power of the Union to prevent secession by force. Imagine, then, a case brought by Virginia against the United States, seeking to prohibit the “invasion” of federal armies into its territory in transit to make war on another state. Who is to say that the Taney Court might not have held such invasion illegal? Even if the legal reasoning required to support such as conclusion might be thought dubious, is it impossible to believe that the Court that decided Dred Scott as it did might not reach such a disabling conclusion?

At the same time, Professor Paulsen notes that, “as Andrew Jackson’s attorney general, Taney had taken the opposite stance with respect to federal coercive power, during the South Carolina nullification crisis.”

83 Notre Dame Law Rev. 1227, 1284 & fn. 239 (2008) (footnotes omitted).


Glenn Reynolds points out this Op Ed piece by a woman who is a life-long Democrat who says she will vote for McCain-Palin:
Right now, for me, gender trumps everything else. If Democratic women wait for the perfect woman to come along, we will never elect a woman. I will vote for McCain-Palin. I urge other women to do the same.

What's a little odd is the next sentence:
I promise to be the first person knocking on her door if Roe v. Wade or any other legislation that goes against the rights of women is threatened.

Er, Roe v. Wade is not "legislation."

Saturday, September 13, 2008

Seven Years: Recap

Of the articles that appeared in connection with the seventh anniversary of the September 11 attacks, the most interesting one I ran across was this one, on the FIRE (Foundation for Individual Rights in Education) website, recounting some of the attempts by colleges and universities to suppress patriotic and pro-US speech in the wake of 9/11:
On the seventh anniversary of the 9/11 terrorist attacks on our nation, FIRE joins the rest of the country in remembering those who were lost. As we look back on that day, it is important that we also remind ourselves of the importance of the freedoms that make this country what it is, and that we commit ourselves to defending those freedoms when they are threatened.

As those who follow FIRE's work well know, many, if not most, American colleges and universities restrict freedom as much as they claim to promote it. In fact, in the immediate wake of the 9/11 attacks, many universities responded by threatening students' and faculty members' fundamental rights.

Abraham Lincoln and Judicial Authority

An interesting article to add to the list: "Lincoln and Judicial Authority," by Michael Stokes Paulsen. Here's the abstract:
In this Article, I trace the development of Abraham Lincoln's stance on judicial authority, and his eventual repudiation of judicial supremacy, from his first major speech addressing the Dred Scott decision in 1857, through the Lincoln-Douglas debates of 1858, the presidential campaign and "secession winter" of 1860, and, finally, during Lincoln's presidency, from his first inauguration in March 1861 to his assassination in April 1865. The moral of this story, I conclude, is one I have advanced in other writing: the President, and other nonjudicial political actors swearing an oath to the Constitution and acting within the spheres of their separate constitutional powers, are not constitutionally bound by erroneous decisions of the Supreme Court that they in good faith conclude are antithetical to the Constitution and harmful to the nation.

One may reject this proposition -- nearly all constitutional scholars, judges, and elected officials today do -- but only by rejecting one of Lincoln's most important political and constitutional positions, fundamental to everything else he said and did as President. Lincoln's rejection both of Dred Scott specifically and more generally of judicial supremacy in constitutional interpretation was an essential part of the platform on which Lincoln rose to national prominence and was elected President. That stance, and Lincoln's election on such a platform, was featured among prominent Southerners' purported constitutional justifications for secession: the nation had just elected a lawless, anticonstitutional President who would invade the South's constitutional rights, as duly determined by the United States Supreme Court, with respect to slavery. The decision by Lincoln and the Union to fight secession thus depends, for its legitimacy, on a rejection of the Southern position on the legitimacy of Lincoln's constitutional views.

The judicial supremacist stance accepted by most people today is the anti-Lincoln stance. It is the position of Lincoln's early political arch-adversary, Senator Stephen Douglas, in support of the binding authority of Dred Scott and of any subsequent decision of the Supreme Court extending slavery throughout the nation. And it is the position of Jefferson Davis and the South, in opposition to the constitutional legitimacy of a President and party elected on a platform of opposition to the controlling force of the Supreme Court's interpretations of the Constitution. In short, if the Douglas-Davis view is right -- that judicial decisions bind subsequent judicial actors, and all political actors -- then Lincoln was wrong in nearly everything he stood for. Indeed, Lincoln's election as President rested on fundamentally anticonstitutional premises. If judicial supremacists are correct, the South was not only within its rights in seceding, but did so for just constitutional cause -- rebelling against an administration and government premised on a grave breach of the Constitution.

Lawrence Solum comments, "I find Paulsen's work compelling (even when I am not convinced). Highly recommended." That's good enough for me.

"Civil War Hero Gets His Union Due"

OK, all you intrepid Civil War bloggers, get on this and provide the details. What did Connelly do that merited his award? Inquiring minds want to know:
In an unmarked grave in a Queens cemetery lies a Civil War soldier whose amazing tale of bravery will finally be honored tomorrow with a proper headstone.

Roderick Connelly was awarded the Medal of Honor for his courage in US troops' assault on Fort Fisher, NC, in 1865 - a battle that led to the capture of the South's last open port.

The headstone will be unveiled at a ceremony tomorrow at Calvary Cemetery in Woodside.

Connelly, who records say was born in England in 1841, signed up for the Marines in Philadelphia in 1863.

He was among 3,300 Union troops who stormed Fort Fisher on Jan. 15, 1865. While many of his comrades were killed or wounded or fled in fear against a Confederate artillery counterassault, he stayed with his force as Union troops captured the fort.

After the war, Connelly lived with his wife and family at 332 E. 22nd St., worked as a varnisher and died in 1889.

Nobody knows why he was buried in an unmarked grave, but a researcher from the Midwest alerted the New York chapter of the Marine Corps League.

The Fugitive Slave Act of 1793 10: Pennsylvania and Maryland Construct a Test Case

As we have seen, on April 1, 1837, Edward Prigg, Nathan S. Bemis, Jacob Forward and Stephen Lewis seized Margaret Morgan and her children in York County, Pennsylvania and transported them to Maryland and slavery.

At some point thereafter, a York County grand jury indicted Prigg, Bemis, Forward and Lewis for kidnapping Morgan in violation of Section 1 of the 1826 Act. The indicted defendants, however, were no longer in Pennsylvania; they were safely sheltered in Maryland.

Mysteries abound in the case, and now we encounter another. Maryland was obligated to extradite the defendants to Pennsylvania at the latter state’s request. Ironically, Maryland’s obligation to do so sprang from the Extradition Clause, which shared Article IV, Section 2 with the Fugitive Slave Clause, and from Sections 1 and 2 of the same 1793 Act that also included the Fugitive Slave Act of 1793. The defendants were not extradited, however, and I have been unable to determine why not. Two possibilities come to mind: Pennsylvania demanded extradition and Maryland refused; or Pennsylvania did not bother to make a formal demand because it was clear that Maryland would not comply. One way or the other, the two states entered into negotiations over the matter.

It took two years, but in May 1839 the states struck a deal by which one of the four defendants – Edward Prigg – was returned to Pennsylvania, to be tried under special procedures that were designed to create a test case “to settle . . . the power of state legislation over” the Fugitive Slave Clause. Because the states were the real parties in interest, attorneys for the State of Maryland represented Prigg; the attorneys representing Pennsylvania included its Attorney-General. Before the Supreme Court, Mr. Johnson, the Pennsylvania Attorney-General, hailed the agreement as an exemplar of inter-state cooperation:
This proceeding was one of amity, of concord, on the part of Pennsylvania and of Maryland, which were, as the learned counsel had told the court, the real and substantial parties. They came into that court to try a great question of constitutional law, to terminate disputes and contentions which were arising, and had for years arisen, among the border line between them, on this subject of the escape and delivery up of fugitive slaves. Neither party sought the defeat or humiliation of the other. It was for the triumph of law, they presented themselves before the court. They were engaged, under an imperative sense of duty, in the work of peace; and he hoped he would be pardoned, if he added, of patriotism also.

I wonder, however, whether Prigg demonstrates why test cases are often bad ideas. In its eagerness to settle the issue, one way or the other, did Pennsylvania lose sight of Margaret Morgan – or at least of her children? As I mentioned above, the charge was that Prigg had kidnapped Morgan. The indictment on which Prigg was tried does not seem to have included a charge of kidnapping the children, at least one of whom was conceived and born in Pennsylvania.

Margaret Morgan was a fugitive slave. The child born in Pennsylvania was a free person under that state’s law. Maryland presumably would have argued that the child, too, was a fugitive subject to capture because the child of a female slave was a slave under Maryland law; the fact that Margaret conceived and gave birth while an unlawful fugitive in a free state should not change the status of a her child who would otherwise have been a slave. Even so, the kidnapping of the child clearly presented far more complex and difficult issues than did the kidnapping of Margaret herself – issues that the Supreme Court was able to ignore because Pennsylvania did not prosecute Prigg for the child’s kidnapping.

Prigg was tried in York County on May 22, 1839. In accordance with the special procedures agreed to between the states, the jurors rendered a “special verdict” that described the applicable Pennsylvania statutes, Margaret Morgan’s history, and Prigg’s “remov[al] and carry[ing] away” of her and her children to Maryland. The jury did not declare Prigg innocent or guilty, but instead left it to the trial judge to reach a determination based upon the facts set forth in the special verdict.

By prearrangement, the trial judge gave judgment against Prigg, who in May 1840 appealed to the Supreme Court of Pennsylvania on the ground that the 1826 Pennsylvania Act “is repugnant to the provisions of the constitution of the United States, and is therefore void.”

The Pennsylvania Supreme Court affirmed “pro forma” (which in this context apparently means summarily and without opinion). This in turn furnished the foundation for Prigg to appeal to the United States Supreme Court.

Thursday, September 11, 2008

Seven Years

On September 11, 2001, I watched the World Trade Center towers burn from an office on Wall Street. As I watched, I promised myself that I would never forget that sight, the evil it represented, and its source, which was, even then, perfectly apparent.

Wednesday, September 10, 2008

The Fugitive Slave Act of 1793 9: Two Tales of Margaret Morgan

Facts often get lost in legal decisions. Prigg seems to be an interesting example of this phenomenon.

The official report relates that, as of 1832, “and for a long period before that time,” Margaret Morgan, a “negro woman,” was the slave for life, under the laws of the state of Maryland, of one Margaret Ashmore, a resident of Harford County, Maryland. “Some time in the year 1832,” Morgan escaped and fled from Maryland to Pennsylvania. She apparently settled in York County, Pennsylvania, where she resided until her arrest in (apparently) March 1837.

The report relates that Morgan gave birth to “children” in Pennsylvania. One child was born in Pennsylvania “more than a year after Margaret Morgan had fled and escaped from Maryland.” The implication, at least, is that one other child was born less than a year after Morgan fled, and was probably conceived in Maryland.

In February 1837, Margaret Ashmore appointed Edward Prigg, also a resident of Maryland, as “her agent or attorney, to seize and arrest the said negro woman, Margaret Morgan, as a fugitive from labor, and to remove, take and carry her from [Pennsylvania] into the state of Maryland, and there deliver her to” Ashmore.

As we will see, three other men – Nathan S. Bemis, Jacob Forward and Stephen Lewis, Jr. – were later indicted with Prigg. The court report does not relate whether Ashmore appointed them as her agents as well, or whether Prigg hired them as assistants, either in Maryland or Pennsylvania.

Prigg traveled to York County promptly after his appointment. Presumably, Ashmore and Prigg already knew of Morgan’s whereabouts. In the month of his appointment – February 1837 – Prigg appeared before a justice of the peace of York County, Thomas Henderson, Esq. It seems that Prigg was aware of and initially followed the procedures found in the 1826 Act, for he
made oath that the said negro woman, Margaret Morgan, had fled and escaped from the State of Maryland, owing service or labor for life, under the laws thereof, to the said Margaret Ashmore.

Prigg may have sought the arrest of Morgan’s children, as well as of Morgan herself, because Justice Henderson issued a warrant for “Morgan, and her children.” In accordance with the 1826 statute, the warrant was addressed to a local constable:
[T]he said Thomas Henderson . . . issued his warrant, directed to one William McCleary, then and there being a regularly appointed constable in and for York county, commanding him to take the said negro woman, Margaret Morgan, and her children, and bring them before the said Thomas Henderson, or some other justice of the peace for the said county . . ..

In accordance with the warrant, Constable McCleary “apprehend[ed]” Morgan and her children and brought them before Justice Henderson.

Then events took an odd turn. “Henderson thereupon refused to take further cognizance of said case.” Exactly what this means, or why Henderson acted as he did, the report does not say. Was he a quasi-abolitionist who could not bring himself to issue the certificates Prigg was seeking? Did he realize that he had been handed a political hot potato that he wanted nothing to do with?

I infer that Morgan and her children were released from custody because of what happened next. On April 1, 1837, Prigg, with the help of Bemis, Forward and Lewis, simply seized Morgan and her children and “carried [them] into Maryland, and delivered them to Margaret Ashmore.”

Professor Akhil Amar adds facts that make the story of Margaret Morgan and her children even more appalling than the pale outline provided by the court:
Marylander John Ashmore owned several slaves whom he had allowed to live in virtual freedom but never formally emancipated. One of these, Margaret, married James Morgan, a free black. The couple had several children in Maryland and later, with the apparent acquiescence of Ashmore’s heirs, moved to Pennsylvania, where for any years they lived openly as a free family. There, Margaret gave birth to one or more additional children, who under Pennsylvania law were free citizens born on free soil and thus fell far outside the fugitive-slave category. Eventually, Ashmore’s heirs decided to claim Margaret as their slave and sent Edward Prigg and others into Pennsylvania to recover their alleged property. The Prigg party dragged Margaret and her children into Maryland, where the blacks were treated as slaves and apparently sold.

Tuesday, September 09, 2008

The Fugitive Slave Act of 1793 8: The Anti-Kidnapping Provision of the 1826 Pennsylvania Statute

Having set forth the procedures that masters and their agents were required to follow when seeking to recover fugitive slaves, the 1826 Pennsylvania statute at issue in Prigg also spelled out the consequences for failure to observe its dictates. A person who used force or pretence to seize “any negro or mulatto” and take him or her out of the state to be placed in slavery was guilty of a felony:
If any person or persons shall . . . by force and violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretence, seduce, or cause to be seduced, or shall attempt so to take, carry away or seduce, any negro or mulatto, from any part or parts of this commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping or detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall on conviction thereof, in any court of this commonwealth having competent jurisdiction, be deemed guilty of a felony . . ..

The penalty was harsh. A convicted defendant was to be fined “not less than five hundred dollars, nor more two thousand dollars,” and imprisoned for a term of “not less than seven years, nor exceeding twenty-one years.” During his imprisonment, the defendant was to “be confined and kept to hard labor, fed and clothed in the manner as is directed by the penal laws of this commonwealth for persons convicted of robbery.”

Monday, September 08, 2008

The Fugitive Slave Act of 1793 7: The Pennsylvania Statute at Issue in Prigg

The 1826 Pennsylvania statute at issue in Prigg dealt primarily with the procedures that applicants and state courts were to follow in connection with claims for the recovery of fugitive slaves. In general, the statute outlined a two-step process: first, arrest of the alleged fugitive by a local sheriff or constable acting pursuant to a warrant issued by a judge; and second, a hearing before the judge at which the claimant was required to prove that the person arrested was in fact his (or his principal’s) slave, and that he was therefore entitled to a certificate authorizing removal of the slave from the state.

You will recall that the Fugitive Slave Act of 1793 authorized the master or his agent to seize the alleged fugitive without involving, or even notifying, state (or federal) authorities. Only after the seizure was the claimant to seek state authorization to remove the alleged slave from the state.

The Pennsylvania statute, in contrast, required state involvement from the start. Having identified a claimed fugitive, a master or his agent was required to apply to a judge for an arrest warrant. In support of his application, the applicant was required to present a sworn statement of ownership, reciting “that the said fugitive hath escaped from his or her service, or from the service of the person for whom he is duly constituted agent or attorney”.

In addition, in the typical case where an agent was making the application, his sworn statement was not enough. He was required to present an affidavit of the out-of-state master “stat[ing] the said claimant’s title to the service of such fugitive, and also the name, age and description of the person of such fugitive.”

If the applicant produced the proof required by the statute, the judge then issued an arrest warrant for the alleged fugitive. The warrant did not, however, authorize the claimant (or his agent) to seize the fugitive. It was addressed to a local sheriff or constable and commanded that official to arrest the fugitive and bring him forthwith before the judge issuing the warrant, “so that the truth of the matter may be inquired into.”

As the language of the warrant indicated, the person arrested was brought before the judge so that a hearing could be held as to whether he did in fact owe “service or labor” to the claimant or the claimant’s principal. “[U]pon proof, to the satisfaction of such judge,” of this fact, “it shall be the duty of such judge to give a certificate thereof to such claimant, his or her duly authorized agent or attorney, which shall be sufficient warrant for removing the said fugitive to the state or territory from which she or he fled.”

The statute clearly contemplated a hearing at which witnesses would give live testimony. For example, one section discusses adjournments where “either party” demonstrates “that he or she is not prepared for trial, and have testimony material to the matter in controversy, that can be obtained in a reasonable time”.

The statute did not specify the precise procedures and proofs to be presented at the hearing, except in one remarkable respect:
Provided, that the oath of the owner or owners, or other person interested, shall in no case be received in evidence before the judge, on the hearing of the case.

It is difficult to assess the practical impact of this extraordinary proviso, because I do not know how Pennsylvania judges applied it. But in theory at least, the proviso could make it extremely burdensome for a master to prove his ownership. Assuming it were available, would a judge accept testimony from Pennsylvania neighbors of the detainee that it was generally known that he had been a slave and escaped? Or would the master be forced to bring up witnesses – foremen? neighbors? – from his home state to identify the detainee? Perhaps in some or many cases, the agent representing the master came from the same community as the master and could testify on personal knowledge concerning the detainee.

Finally, it is worth pointing out that the statute made clear that state judges were required to follow its procedures exclusively:
No [judge] of this commonwealth shall have jurisdiction or take cognizance of the case of any fugitive from labor from any of the United States or territories, under a certain act of congress passed on the tenth day of February 1793, entitled “an act respecting fugitives from justice, and persons escaping from the service of their masters;” nor shall any [judge] of this commonwealth issue or grant any certificate or warrant of removal of any such fugitive from labor as aforesaid, except in the manner and to the effect provided in the third section of this act, upon the application, affidavit or testimony of any person or persons whatsoever, under the said act of congress, or under ay other law, authority or act of the congress of the United States . . ..

In the next installment, we will look at the kidnapping section of the Pennsylvania act under which Edward Prigg was convicted.

Saturday, September 06, 2008

The Fugitive Slave Act of 1793 6: The Origins of the Pennsylvania Statute

The Pennsylvania statute that the Supreme Court examined in Prigg in 1842 had been passed sixteen years earlier, in 1826. The bulk of the statute regulated the manner in which masters and their agents were to lay claim to and recover fugitive slaves within the state, and described the procedures that state courts judges were to follow in evaluating those claims. In addition, the very first section declared that the unauthorized seizure and transfer of claimed slaves from the state was a felony punishable by seven to twenty-one years in prison. In effect, if a slave catcher failed to observe the requirements of the statute, he was guilty of kidnapping.

I will look at the statute in greater depth later, but I thought I’d begin by discussing its origins. You might assume that it was created by radical abolitionists bent on gutting the Fugitive Slave Act. That does not seem to have been the case, however.

One of the attorneys arguing on behalf of the Commonwealth of Pennsylvania in Prigg related the origins of the 1826 Act that I set forth below. I cannot vouch for every detail. However, opposing counsel did not dispute the story. Since they had every reason to challenge it, there is substantial reason to credit Pennsylvania’s description as accurate.

According to Mr. Johnson, the Attorney-General of Pennsylvania, the 1826 Act was the result of negotiations between Pennsylvania and the State of Maryland. The latter state desired that Pennsylvania pass a law that would clarify the procedures by which slaves who had escaped there could be captured and returned. Pennsylvania, consistent with its antislavery history and concerns, wanted to ensure that its citizens would not be kidnapped. At the time, Maryland declared itself entirely satisfied with the result. If anything, it was Pennsylvanians who believed that they had given away too much. At all events, the statute was clearly not an attempt to evade or nullify the 1893 Act:

The difficulties which resulted in the present case [Prigg] had been previously felt, and made the subject of negotiation between these states [Pennsylvania and Maryland]. And it was a curious fact, that this very act of 25th March 1826, the unconstitutionality of which is alleged in this case, was the joint fruit of such negotiation. It was passed, as [Mr. Johnson] believed, at the instance and with the entire approval of commissioners appointed by the constituted authorities of the state of Maryland, to wait upon the legislature of Pennsylvania to obtain the passage of some law of the kind. At the time of its passage, it was loudly condemned by that portion of the citizens of Pennsylvania who favored the abolition of slavery. And now, a singular change of places is exhibited- the state of Maryland repudiates what she then sanctioned; and the adversaries of slavery sustain, though not very cordially, what they then condemned. One of these parties thinks this act of 1826 is too indulgent to slave-holders; the other, that it deprives them of their just rights. The considerate and enlightened citizens of Pennsylvania, with few, if any, exceptions, were, he believed, of the opinion that this law was precisely what it should be-alike warranted by the federal constitution, and careful to protect the rights of all. . .

So, in the act of 1826. Its very title speaks its object. It is “an act to give effect to the provision of the constitution of the United States, relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping.” Thus is this very unconstitutional act found to be an act to give effect to the constitution. The history of the legislation of Pennsylvania on this subject will prove, that though she has been ever found in the vanguard of the friends of liberty and humanity, she never has forgotten what is due to her sister states; she never has wavered in her loyalty to the constitution of the Union; and come what may, she never will depart from this course.

The Fugitive Slave Act of 1793 5: Section Three Examined

In the last post, I proposed a grammatically reasonable reading of the Fugitive Slave Clause that turned out to be both minimally intrusive to state sovereignty and contained elements that could be understood to restrict the ability of slaveholders to recapture their slaves.

As you know, in 1793 the Second Congress chose to disagree with me. But to what extent? Again, let’s disregard the history and learning that later accumulated around the Fugitive Slave Act of 1793, and in particular the Supreme Court’s 1842 interpretation of the Act in Prigg. We’re just sitting around the parlor in the Spring of 1793 reading the latest statutes passed by our newly formed General Government. What have they wrought?

Sections 1 and 2 of the 1793 Act concerned the Extradition Clause, rather than the Fugitive Slave Clause. Section 3 provided:
And be it also enacted, That when a person held to labour in any of the United States, or in either of the territories on the northwest or south of the river Ohio, under the laws thereof, shall escape into any other of the said states or territory, the person to whom such labour or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labour, and to take him or her before any judge of the circuit or district courts of the United States, residing or being within the state, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit taken before and certified by a magistrate of any such state or territory, that the person so seized or arrested, doth, under the laws of the state or territory from which he or she fled, owe service or labour to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labour, to the state or territory from which he or she fled.

There is (as I have suggested in an earlier post) a substantial question whether Congress had the power to pass the statute at all. Putting that issue aside, however, the statute went beyond the Clause in two potentially significant respects.

First, it established a regime by which the master or his agent himself initially seized the alleged slave, and then brought him before a judicial officer. This was certainly not required by the language of the Clause, and might reasonably be thought to contradict it. The Clause says simply that the slave “shall be delivered up.” Assuming, as I do, that the escaped-into state was to do the delivering up to the claimant, then the natural inference is that the state would do the seizing. After all, the phrase used was “delivered up” not “redelivered up.”

This was damaging in two respects. First, the statute sanctioned, at least to some extent, the master’s right of recaption, which the Clause implicitly denied. At the same time, the sovereignty of the escaped-into state was violated because it was obligated to permit slave catchers to roam around snatching people off the streets.

The second way in which the statute arguably went beyond the Clause was in the selection of the judges who would do the delivering up. The Clause, as I have argued ad nauseam, logically suggested that state authorities would do so. Section 3, however, gave the claimant a choice. After seizing the fugitive, the claimant could take him before either a federal or state officer.

This provision, too, was offensive to the escaped-into states. Not only did they have to permit slave catchers to roam around and snatch people; if slave catchers chose to take their prey before federal judges, the states would be unable to regulate their activity even on the back end.

All that said, what is most interesting about the statute (like the Clause) is that it can be seen as containing elements that restricted, rather than enhanced, the powers of masters seeking to recover their slaves. First, the statute sanctioned a procedure that required involvement by a government officer. Nothing in the statute barred states from forbidding out-and-out kidnapping. That is, the statute did not require states to suffer slave catchers to enter, grab someone, and then depart the state without permission from someone vested with authority.

Second, the statute gave states and their judicial officers substantial leeway in determining claims and the rules by which claims would be evaluated. Section 3 specifically provided that the alleged slave was to be awarded to the claimant only after the judge received “proof to [his] satisfaction” that the person seized was in fact the claimant’s slave. This meant that an individual judge might, for example, find himself unsatisfied by an affidavit from the out-of-state claimant. It also suggested that a state could establish reasonable procedural and evidentiary rules specifying the type of proof required to demonstrate ownership. Certainly the statute squarely contradicted the idea that judges were required to rubber-stamp as valid any and all claims of ownership presented to them.

Finally, the statute’s authorization of federal judges to hear cases was not as bad as it seemed. Federal judges were few and far between. As a practical matter, most slave catchers would wind up bringing their captures before state judges. This meant that, if a state chose to enact stringent procedural and evidentiary rules, they would have bite.

Friday, September 05, 2008

The Fugitive Slave Act of 1793 4: A Commonsense Reading of the Fugitive Slave Clause

Let’s put aside for the moment all the history that accumulated concerning the Fugitive Slave Clause between 1789 and 1860. Just imagine that you’re sitting at home in 1789 reading through the newly-ratified Constitution. You get to Article IV, Section 2 and the Fugitive Slave Clause. You try to puzzle out what it means. You haven’t got James Madison’s notes of the constitutional convention; even if you did, as we’ve seen, they shed no real light. It’s just you and the text. Here’s what you see:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The longer I contemplate this provision, the more convinced I become that the directives it contained were addressed solely to the states. The first clause seems clearly to be addressed to the States: “No Person, etc., escaping into another [State], shall, in Consequence of any Law or Regulation therein [i.e., of that State], be discharged from such Service or Labour [by that State].” In other words, the first part appears clearly to forbid a state into which a slave has escaped from declaring that slave free.

The most straightforward and logical reading of the second part of provision is that it, too, is addressed to the state into which a slave has escaped. The slave shall not be “discharged from such Service or Labour [by the escaped-into state], but shall be delivered up [by that escaped-into State] on Claim . . ..” Strictly as a grammatical matter, although the phrase “delivered up” is in the passive, the inference is fairly compelling that the party doing the delivering is the escaped-into State. There isn’t the slightest reason, really, to think that the escaped slave should be “delivered up” by the escaped-into State and/or the federal government.

What is particularly interesting is that this reading reveals that the Clause (a) restricted, rather than enhanced, the powers of masters seeking to recover their slaves, and (b) impinged on the retained sovereignty of the states to only a minor extent. At common law, masters had the right to recapture slaves without involving governmental authorities, provided that they could effect recapture without breach of the peace. The Clause, however, contained nothing that required states to observe this “right” of recaption of the master. An escaped-into State’s sole obligations were that (a) it could not discharge an escaped slave from slavery, and (b) it was required to “deliver[] up” the slave “on Claim of” the master. I would argue, in other words, that if a state chose to abolish the common law right of recaption, and reclassify it as kidnapping, it was free to do so.

Finally, there is no particular reason to read too much into the phrase “deliver[] up on Claim.” This could hardly have meant that escaped-into States were required to deliver up an alleged slave to the person claiming him with no inquiry. States were surely entitled to establish reasonable procedures to test whether the “Claim” had merit. True, if procedures were intentionally designed to be so cumbersome as to thwart legitimate claims by masters, then they might violate the Clause. But so long as the procedures were reasonably designed to advance factual determinations concerning the merits of the claim, nothing in the Clause would seem to forbid them.

It will take us a while to get there, but hold these thoughts until we come to examine the Act passed by the State of Pennsylvania that the Supreme Court later reviewed in Prigg.
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