The Origins of the Three-Fifths Clause

The precursor to the Three-Fifths Clause originated as a proposed amendment to the revenue article of the Articles of Confederation.

As Merrill Jensen explains in The Articles of Confederation, the delegates who participated in the drafting of the Articles in 1776-1777 accepted that the apportionment of contributions to the “common Treasury” should be based on the wealth of the various states. To simplify a bit, they saw three possible approaches to quantifying an index of wealth: population, the value of land and improvements, and the value of all property (both real estate and personal).

The Dickinson draft of the Articles proposed to use the first method, based on population:

All Charges of Wars and all other Expences that shall be incurred for the common Defenee, or general Welfare, and allowed by the United States in General Congress assembled, shall be defrayed out of a common Treasury, which shall be supplied by the several Colonies in Proportion to the Number of Inhabitants of every Age, Sex and Quality, except Indians not paying Taxes, in each Colony, a true Account of which, distinguishing the white Inhabitants who are not slaves, shall be triennially taken and transmitted to Congress the Assembly of the United States. The Taxes for paying that Proportion shall be laid and levied by the Authority and Direction of the Legislatures of the several Colonies, within the Time agreed upon by United States assembled.

This raised cries of protest from the south. The core southern concern was the belief that they would pay more than their fair share if slaves were counted. In brief, southerners argued that, if population were to be used an index of wealth, slaves should be excluded because they were less productive than free labor. Southerners maintained that the most accurate indicator of wealth was not population at all, but the value of land and improvements.

New Englanders took the opposite view. In New England land was scare and dear, and New Englanders feared that an allocation based on real property values would result in their paying too much. They argued that total population – including slaves - should be used as the index.

In the end, New England lost the battle. The final version of Article VIII of the Articles abandoned population and provided instead that the states would pay for expenses incurred by Congress “in proportion to the value of all land within each State”:

All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint.

The taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled.

In practice, this proved impossible. As late as Thursday February 6, 1783 Congress was still trying to figure out “the most effectual mode of estimating the value of the lands in the United States for the purpose mentioned in the Articles of Confederation.”

As Jan Lewis explains in her essay “The Three-Fifths Clause and the Origins of Sectionalism” (found in Congress and the Emergence of Sectionalism: From the Missouri Compromise to the Age of Jackson [Paul Finkelman and Donald R. Kennon, eds.]), casting about for an alternative, in 1783 Congress revisited the possibility of substituting population for land values as a surrogate for wealth. But, as before, using population promptly implicated the question of slavery: were slaves to be counted in the population, or would the count be limited to free persons?

As before, the positions of the parties were based upon self-interest; but the arguments pro and con were based on assertions concerning the efficiency of slave labor vs. free labor. Because the sole question was the amount of contributions to the common treasury – and not representation – southerners again sought to exclude slaves, arguing that slave labor was substantially less efficient than free labor and should not be counted. Northern representatives, seeking to increase the amount of contributions from slave states and reduce their own, again took the opposite position: slaves should be included because slave labor was just as efficient as free labor.

By way of compromise, two basic approaches were suggested. One approach discounted slave labor by crediting only a certain percentage of slaves toward population (e.g., one-quarter, one-half, three-quarters). The other would include in the the counting only slaves between certain ages, on the theory that slaves below and above those ages were unproductive.

On Thursday March 6, 1783, the Confederation Congress received a "Report of Mr. Nathaniel Gorham, Mr. Alexander Hamilton, Mr. James Madison, Mr. Thomas FitzSimons, [and] Mr. John Rutledge appointed to consider the means of restoring and supporting public credit and for obtaining from the States substantial funds for funding the whole debt of the United States.” The Committee's Report included a recommendation using the second approach, using population as a proxy for wealth, but excluding slaves of ages to be determined:

That as a more convenient and certain rule of fixing ascertaining the proportions to be supplied by the states respectively to the common treasury, the following alteration in the Articles of Confederation and perpetual union, between the states, be and the same is hereby agreed to in Congress; and the several states are advised, to authorize their respective delegates to subscribe and ratify the same, as part of the said instrument of union, in the words following, to wit:

So much of the eighth of the Articles of Confederation and perpetual union between the thirteen states of America, as is contained in the words following, to wit:

“All charges of war,” &c., (to the end of the paragraph), is hereby revoked and made void; and in place thereof, it is declared and concluded, the same having been agreed to in a Congress of the United States, that all charges of war and [all other expences that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states,] in proportion to the number of inhabitants, of every age, sex, and condition, except Indians not paying taxes in each State; which number shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint; provided always, that in such numeration no persons shall be included who are deemed slaves bound to servitude for life, according to the laws of the State to which they belong, other than such as may be between the ages of [___].”

Congress rejected this approach, however, and turned back to the first approach, by which some portion of the slave population would be counted as a proxy for wealth. After a good deal of haggling, an arbitrary compromise was worked out: on the theory that slave labor was 60% as efficient as free labor, three-fifths of the slave population would be counted. This compromise was contained in a revised Report of the Committee presented to the Continental Congress on Tuesday March 18, 1783:

That as a more convenient and certain rule of ascertaining the proportions to be supplied by the states respectively to the common treasury, the following alteration in the Articles of Confederation and perpetual union, between these states, be, and the several states are advised to authorize their respective delegates to subscribe and ratify the same as part of the said instrument of union in the words following, to wit:

So much of the eighth of the Articles of Confederation and perpetual union, between the thirteen states of America, as is contained in the words following, to wit.

“All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint,” is hereby revoked and made void; and in place thereof it is declared and concluded, the same having been agreed to in a Congress of the United States that, “All charges of war and all other expences that have been or shall be incurred for the common defence or general welfare, and allowed by the United States in Congress Assembled, except so far as shall be otherwise provided for, shall be defrayed out of a common treasury which shall be supplied by the several states in proportion to the whole number of white and other free citizens and inhabitants of every age, sex and condition, including those bound to servitude for a term of years and three-fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes in each State, which numbers shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint.”

Apparently disagreement continued over the percentage of slaves to be included. The Journal entry for Friday March 28, 1783 suggests that proportions of “one-half” and “two-thirds” were also being advocated, and in fact the entire paragraph was stricken.

By April 1, however, the provision – including the proportion of three-fifths, was reinstated.

In the end the three-fifths ratio carried the day. On Friday April 18, 1783, the Continental Congress passed the proposed amendment in a form substantially identical to that quoted above:

That as a more convenient and certain rule of ascertaining the proportions to be supplied by the states respectively to the common treasury, the following alteration in the Articles of Confederation and perpetual union, between these states be, and the same is hereby agreed to in Congress; and the several states are advised to authorise their respective delegates to subscribe and ratify the same as part of the said instrument of union in the words following, to wit:

So much of the 8th of the Articles of Confederation and perpetual union, between the thirteen states of America, as is contained in the words following, to wit:

“All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated according to such mode as the United States in Congress assembled, shall from time to time direct and appoint,” is hereby revoked and made void; and in place thereof it is declared and concluded, the same having been agreed to in a Congress of the United States, that “all charges of war and all other expences that have been or shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, except so far as shall be otherwise provided for, shall be defrayed out of a common treasury, which shall be supplied by the several states in proportion to the whole number of white and other free citizens and inhabitants, of every age, sex and condition, including those bound to servitude for a term of years, and three-fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes, in each State; which number shall be triennially taken and transmitted to the United States in Congress assembled, in such mode as they shall direct and appoint.”

The final vote was non-sectional, with nine states in favor and only one (Rhode Island, of course) against. New York's vote was divided. New Hampshire's sole delegate voted in favor, but his vote was disregarded because Article V required that a state delegation consist of at least two members.

The proposed amendment to the Articles was never ratified. Article 13 required that no “alteration” could be made to the Articles “unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

The proposed amendment concerned only allocation of contributions and had nothing to do with representation. Nonetheless, when four years later the members of the Philadelphia Convention came to consider population as basis for allocation of representatives in the “National Legislature”, the precedent naturally and immediately came to mind.

Thanks to CWhig, whose recent post on the Three-Fifths Clause alerted me to Prof. Lewis's essay and the book in which it appears. Can't say I buy his theory on the Framers' intent, though.

It's Millard!

A good friend of mine, Cliff Sahlin, who is an accomplished painter, presented me with a fantastic Christmas present yesterday: a portrait of our thirteenth president, Millard Fillmore! Feel free to click on the image to enlarge.

Early Christmas Morning

Santa's just going to bed.

Merry Christmas!

I wish you and yours all the best. Ariadne isn't so sure.

Some Thoughts on Secession

The 150th anniversary of the passage of South Carolina's secession ordinance has generated some silly commentary by the Left. This excerpt from a 2008 post by Volokh Conspirator and Lawprof Ilya Somin serves as a useful corrective:

A recent Zogby/Middlebury Institute poll shows that 22% of Americans believe that "any state or region has the right to peaceably secede and become an independent republic." Belief in states' and regions right to secede was especially common among blacks (40%), Hispanics (43%) and people aged 18-24 (40%). Interestingly, political liberals (32%) were more likely to believe in a right to secession than conservatives (17%). 18% of respondents say they would support a secession movement in their own state, including 24% of southerners.

Constitutional law professor Ann Althouse claims that these poll results show that "all these people [who believe in a right to secession] have the law wrong and don't seem to know the basics of the history of the Civil War." She concludes that the pro-secession survey respondents are "fascinatingly stupid."

I certainly agree with Ann that much of the public is shockingly ignorant about American history and constitutional law. . . . At the same time, I don't think that ignorance is necessarily a sign of stupidity.

I. Secession and the Constitution.

More importantly, I don't think that belief in a right of secession by itself demonstrates ignorance about either law or American history. The Constitution is famously silent on the issue of secession. It doesn't explicitly guarantee states a right to secede, but also doesn't explicitly forbid secession. Interestingly, the Articles of Confederation explicitly stated that the union is "perpetual" (which seems to foreclose secession), but the Constitution which superseded the Articles does not include any such language. This silence has led to ongoing debate over the constitutional status of secession. Prior to the Civil War, many respected scholars and political leaders claimed that secession was permitted by the Constitution. Many were apologists for slavery, but by no means all. For example, political leaders from several northern free states asserted that they had a right to secede at the 1814 Hartford Convention. In light of this history and the ambiguity of the constitutional text, I don't think that belief in a right to secession is at all unreasonable, much less a sign of obvious ignorance or stupidity.

II. Secession and the Civil War.

Many people, of course, believe that the issue of secession was definitively resolved by the Civil War; Ann may be alluding to this when she writes that the survey respondents she criticizes "don't seem to know the basics of the history of the Civil War." There is no question that the federal government defeated the south's attempt to secede. However, superior military might doesn't prove superior constitutional right. There are many instances in American history where federal and state governments managed to get away with violating the Constitution by applying superior force. The imposition of Jim Crow segregation on blacks in the South is the most notorious example.

To avoid confusion, I should emphasize that I think that the federal government was right to suppress the Confederates' efforts to secede. But not because secession is always illegal and impermissible. Rather, the Union was right in that instance because the southern states sought to secede for the indefensible purpose of protecting and extending the evil institution of slavery. Moreover, none of the southerners' constitutional rights had been infringed by the federal government. Things would look very different if a state sought to secede for the purpose of defending fundamental human or constitutional rights rather than continuing to violate them; if, for example, the feds were trying to force slavery on unwilling free states.

Conditional Ratification VII: "The terms of the Constitution import a perpetual compact between the different states"

Several years ago I wrote a series of posts on the New York convention that ratified the United States Constitution at the end of July 1788. Very briefly, some members of the anti-Federalist majority had indicated a willingness to consent to ratification provided that a federal convention was held within a period of years thereafter to consider amendments. On Saturday July 19, 1788 a desperate Alexander Hamilton wrote from the convention in Poughkeepsie to James Madison, then in New York City, asking whether, as a last resort, the proponents of the Constitution could agree to such a conditional ratification:

I thank you My Dear Sir for yours by the post. Yesterday I communicated to [William] Duer our situation which I presume he will have communicated to you. It remains exactly the same, no further question having been taken. I fear the footing mentioned in my letter to Duer is the best upon which it can be placed; but every thing possible will yet be attempted to bring the party from that stand to an unqualified ratification.

Let me know your idea of the possibility of our being received on that plan. You will understand that the only qualification will be the reservation of a right to recede in case our amendments have not been decided upon in one of the modes pointed out in the Constitution within a certain number of years, perhaps five or seven.

If this can in the first instance be admitted as a ratification I do not fear any further consequences. Congress will I presume recommend certain amendments to render the structure of the government more secure. This will satisfy the more considerate and honest opposers of the constitution, and with the aid of time will break up the party.

Madison responded immediately: absolutely not:

N. York Sunday Evening [July 20, 1788]

My dear Sir

Yours of yesterday is this instant come to hand & I have but a few minutes to answer it. I am sorry that your situation obliges you to listen to propositions of the nature you describe.

My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make N. York a member of the New Union, and consequently that she could not be received on that plan.

Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto and for ever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short any condition whatever must viciate the ratification. What the new Congress by virtue of the power to admit new States, may be able & disposed to do in such a case, I do not enquire as I suppose that is not the material point at present. I have not a moment to add more. Know my fervent wishes for your success & happiness.

Js: Madison

This idea of reserving right to withdraw was started at Richmd. & considered as a conditional ratification which was itself considered as worse than a rejection.

In my earlier posts, I explained that secondary sources reported that Hamilton had read Madison's letter to the convention in support of his argument that conditional ratification was ineffective. I am adding this post because I have now found online the contemporaneous report of that event.

On Wednesday July 23, 1788 the New York convention had by a narrow margin (31-29) deleted the phrase “Upon Condition” and substituted “in full Confidence.” On Thursday July 24, 1788, however, John Lansing moved an amendment that would have re-introduced a form of conditional ratification. Lansing proposed to adopt the Constitution “with right to withdraw in [blank] years if the amend[ment]s [proposed by the New York convention] are not submitted to a convention in the mode prescribed &tc.”

Hamilton spoke in opposition to Lansing's motion. Quoting from Madison's letter to him, Hamilton opined that the Constitution implied "a perpetual compact between the different states" and that the proposed ratification would therefore be ineffective:

Ham[ilton] – Was in hopes this Morning of Unanimity when this Motion was first mentioned. Thot more favourably of it than the other one but since thinks otherwise. Has taken advice with men of character – they think it will not due. Proposed to read a Letter – reads it – supposes this adoption – conditional – and would viciate the business &tc. Himself wrote favourably for it. The terms of the Constitution import a perpetual compact between the different states; this certainly is not. Treaties and engagements with foreign nations are perpetual – this cannot be under this adoption. The oath to be taken stands in the way. States & men are averse to inequality. They fully bound and we partially. Should we risk so much on so little? Motives of expediency too much relied on. If they do not accept us will they not sooner have a new convenn [sic] than accept us so. Is it worth the jeopardy by which it must be obtained? Is it not of importance that we join immediately to procure a convenn? The obser[vatio]n of Lans[in]g does not meet the objec[tio]n – as they will contemplate wheather [sic] this is a ratific[atio]n. If they have any doubt, they will ap[poin]t Cong[res]s to meet on certain federal ground [and not in New York]. Interest of some states against us. If they are driven away by us the people will be dissatisfied &tc. We have done everything which possibly can insure our wish – this we shall loose [sic] by a second state convention. We shall not be represented in Congress & this for no real end. Moves to have the question postponed & that a circular letter be wrote.

On July 28, 1788 the New York Daily Advertiser published the following account of the New York convention debates on July 24, 1788:

Yesterday [July 24] Mr. Lansing moved to annex Mr. [Melancton] Smith's last proposition to the ratification, or the one which proposes to adopt with a reservation of a right to withdraw; then Mr. [John] Jay, and after him Mr. Hamilton, rose and declared that the reservation could answer no good purpose in itself – that it implied a distrust of the other States – that it would awaken their pride and other passions unfriendly to the object of amendments; but what was decisive against it, it was inconsistent with the Constitution, and was no ratification.

Mr. Hamilton produced and read part of a letter from a gentleman of high public distinction, containing in explicit terms his opinion that the reservation would amount to a conditional ratification, and would not be received by Congress. Mr. [James] Duane and the Chancellor [Robert R. Livingston] both declared their opinion to the same effect, and they all concurred in expressing an anxious wish, that since the House had proceeded so far to an accomodation, they might now conclude the business with harmony and to the satisfaction of both parties. Mr. Smith remained silent all the day; the questions was postponed till to-day.

Earlier posts on the New York Ratification Convention:

Part I

Part II

Part III

Part IV

Part V

Part VI

About the illustration, entitled The Looking Glass for 1787. A house divided against itself cannot stand. Mat. Chap. 13th verse 26, created by Amos Doolittle, published New Haven, CT 1787:

A satire touching on some of the major issues in Connecticut politics on the eve of the ratification of the U.S. Constitution. The two rival factions shown are the "Federals," who represented the trading interests and were for taxes on imports, and the "Antifederals," who represented agrarian interests and were more receptive to paper money issues. The two groups were also divided on the issue of commutation of military pensions. The artist here evidently sides with the Federals. Connecticut is symbolized by a wagon (top center) loaded with debts and paper money, the weight of which causes it to sink slowly into the mud. Its driver warns, "Gentlemen this Machine is deep in the mire and you are divided as to its releaf--" The wagon is pulled in opposite directions by two factions of the state's Council of Twelve. On the left under a beaming sun are five Federal councillors, who proclaim: "Pay Commutation," "Drive them to it," "I abhor the antifederal Faction," and "Comply with Congress." On the right the sky fills with angry storm clouds spewing thunderbolts, while the earth erupts in flames. Below six of the council's Antifederal members pull on their chain crying: "Tax Luxury," "the People are oprest," "curses on to Foederal Govermt.," "Success to Shays" (an allusion to charges that they sympathized with agrarian radicals led by Daniel Shay in Massachusetts), and "Curse Independence." The seventh Antifederal on the council, William Williams (here labeled with his press pseudonym "Agricola"), also appears. He stands defecating at right, with his trousers undone and a small animal--probably a skunk--between his feet. Williams remarks, "I fear & dread the Ides of May" (i.e. the May 15 elections to the upper house). The skunk sprays toward Williams's enemy Samuel Holden Parsons (far right, identified as "S--H--P"), president of the state's Society of the Cincinnati. Parsons, also obscenely bending over, sprays back saying, "A good Shot." In the left middleground, "Cato," a pseudonymous contributor to the "New Haven Gazette," comments, "I despise your Copper" to the man beside him, who holds a Connecticut coin and mutters, "Cur's commutation." In the center a farmer with a plough, rake, and bottle complains, "Takes all to pay taxes." In the left foreground three members of the Connecticut Wits stand on the Mount "Parnassus," and read from a scroll "American Antiquities" (excerpts from their "Anarchiad" published in Connecticut newspapers beginning in October 1786). To the right is the Connecticut shoreline and the buildings of Manhattan, the latter threatened by thunderbolts from the upper right. Three merchant vessels ply a body of water below, "From Connecticut to New York paying L40000 per annum Impost." In the left corner a tiny figure sits at a w7riting desk, reading a paper with the verse: "Tweedles Studdy/as I sit plodding by my taper." This piece alludes to a satirical poem by "Trustless Fox" in the "New Haven Gazette" of November 23, 1786. Its opening lines are: "As I sat plodding by my taper, I wreaked a glance into the paper . . . ." The interpretation given above is largely based on the commentary of a Sotheby's cataloger (see reference below). That writer suggests that "Trustless Fox" and the designer of "The Looking Glass for 1787" may have been one and the same, based on the references to material in the New Haven Press.

James Madison vs. Alexander Hamilton

Google's new Ngram Viewer for plotting the frequency of the use of selected words and phrases over time has been getting a fair amount of play. For fun, I plotted the frequency of "James Madison" and "Alexander Hamilton" to see how those two founders have fared over the years. The results appear above. Not sure what they mean, though.

Franklin Purse?

[Nathaniel] Hawthorne's steadfast support for his old schoolmate Franklin Pierce had enraged abolitionists, whose cause suffered major setbacks during his presidency, so much so that Lydia Maria Child thought his name should be pronounced to rhyme with "curse."

Bruce A. Ronda, Elizabeth Palmer Peabody: A Reformer on Her Own Terms.

H/T Caleb Crain at Steamboats are ruining everything.

The Clayton Compromise 10: "This is the security for the South which I had the temerity to reject!"

As Rep. Alexander Stephens appeared to be wrapping up his August 7, 1848 speech explaining why he had opposed the Clayton Compromise bill, a fellow southerner – Rep. Frederick Perry Stanton, Democrat of Tennessee – interrupted him with a question. Stanton had voted against Stephens's motion to table the bill, and clearly believed that the Constitution carried slavery with it into the territories. Does “the Constitution of the United States,” Rep. Stanton asked, “not recognize slavery”? In effect, Stanton was demanding to know whether Stephens was renouncing the Calhounian position that the territories were the common property of all the states, privileging slaveholders to take their constitutionally recognized property there if they chose.

Little Aleck held his ground and pulled no punches. Yes, the Constitution recognized and guaranteed slavery – in the Fugitive Slave Clause for example – but the establishment of slavery depended on local law. Where local law authorized slavery, the Constitution recognized it. Where local law barred the institution, however, the Constitution did not overrule:

Yes, sir, the Constitution recognizes slavery, but only where it is not prohibited by the laws of the State, or place, or for the purpose of protecting it. The Constitution recognizes slavery in Tennessee and Georgia, and in all the States where slavery exists by law; but it does not recognize it in New York or Ohio, or in any State, except so far as it provides for the recapture of runaway slaves. The Constitution recognizes and guaranties slavery wherever it exists by the local law, but it establishes it nowhere where it is prohibited by law.

The Compromise bill, Stephens maintained, was worse than the Wilmot Proviso, which at least had the advantage of discriminating openly. If, as Rep. Stanton suggested, the Constitution itself carried slavery into the territories, then the Compromise gave the South no rights it did not already have. If, on the other hand, Stephens was correct, the Compromise bill would have barred the South from the territories forever:

The rights of the South are not only endangered, but totally abandoned in this compromise. Its passage would have been worse for the South than the Wilmot proviso in express terms; for, if the principles upon which its southern friends advocate it be true – that is, if by the Constitution the southern slaveholder has a right to carry and hold his slaves in these Territories, notwithstanding the existing municipal law of Mexico by which slavery is abolished there, then, of course, the same right would exist, even if the Wilmot proviso were passed; and the proviso, if passed, being in contravention of this constitutional right, of course the Supreme Court would be bound to decide it null and void. So that the compromise secures no rights to the South which they would not have even under the Wilmot proviso itself.

But, on the other hand, if the Supreme Court should, under the compromise bill, decide against the slaveholder, on the ground that the existing laws of Mexico, at the time of the conquest, were in force there until altered by some competent authority, then, sir, we should be bound by it forever; for we could not come and ask Congress to alter the law against the compromise, even although the court might say that Congress had the power either directly to alter it, or to allow the Territorial Legislature to do it; for we all understand that a compromise is a final settlement, and all parties are bound in honor to abide by it.

Based upon his analysis, Stephens argued that it was he, not his southern critics, who was the true defender of southern rights:

Then, sir, what are we of the South to gain by this compromise? Nothing but what we would have, even with the Wilmot proviso - the poor privilege of carrying our slaves into a country where the first thing to be encountered is the certain prospect of an expensive lawsuit which may cost more than any slave is worth; and, in my opinion, with the absolute certainty of ultimate defeat in the end, and with no law in the mean time to protect our rights of property in any way whatever! This, sir, is the substance of the compromise, even in the most favorable view it can be presented! And this is the security for the South which I had the temerity to reject!

Would that the people of that section may ever have men upon this floor of such temerity! I did reject it; and I shall continue to reject all such favors. If I can get no better compromise, I shall certainly never take any at all. As long as I have a seat here, I shall maintain the just and equal rights of my section upon this as well as upon all other questions. I ask nothing more, and I shall take nothing less. All I demand is common right and common justice; these I will have in clear and express terms, or I will have nothing.

I speak to the North, irrespective of parties. I recognize no party association or affiliation upon this subject. If the two parties at the North combine, and make a sectional issue, and by their numerical strength vote down the South, and deny us those equal rights to which I think we are in justice entitled, it will be for the people of the South then to adopt such a course as they deem proper.

After expressing these Calhounian sentiments, Stephens backed off a bit. He did not object to compromise, he emphasized, provided it was express and just:

I have no objection to compromising the question, but I have only two plans of compromise: one is, a fair division of the territory by clear and distinct lines, by which every one may know exactly to what extent his right will be protected. I care not much whether it be by an extension of the Missouri line, or whether it be by adopting as a line one side of the mountain ranges, giving the South all on this side and the North all on the other. I am, however, rather in favor of the latter; but shall insist upon some fair and just division.

Stephens' other compromise suggestion, intended no doubt to provoke Stanton and his Democratic colleagues, harked back to the Whig "no territory" position held during the Mexican War:

That is one plan of compromise I shall favor, and if I cannot get that, I have but one other to offer, and that is, to reject the territory altogether. Let us keep our money which is to be paid for it, and let Mexico keep her provinces and her people.

The Clayton Compromise 9: "They should not decide upon the life of my dog if I could prevent it"

In my last post on the Clayton Compromise, Rep. Alexander Stephens (Whig – Georgia) delivered a compelling legal brief on August 7, 1848 to explain why he had moved to table the bill ten days earlier. Legal authority and case law, he argued, would have compelled the Supreme Court to conclude that slavery was barred in the former Mexican territories of California and New Mexico.

It appeared Stephens's argument was winding down. He briefly dismissed the argument that the bill was pro-South because a southern-leaning Supreme Court would rule in favor of slavery, no matter what the merits:

It is with pain I have heard allusions made to the present composition of the court – five judges from the South, and four from the North; and that, therefore, the question would be safe for the South in their hands, as we had a majority of the bench. I consider such an argument a gross imputation upon the court; and no greater disgrace could be attached to the members of it, or to the country, than a decision made from any such considerations. No judge, whether from the North or the South, could ever be influenced by such motives, until he became as corrupt and as debased as the execrable [Elijah] Impey – the infamous tool of [Warren] Hastings.

If I thought such motives could operate upon the court, that would be the last body in the world I would refer the decision of any question to. They should not decide upon the life of my dog if I could prevent it.

Marianne Faithfull, Then and Later

No reason, really, except I love the contrast. Her "Working Class Hero" is superb and far superior to Lennon's.

Photographs of Civil War Soldiers

The Smithsonian has uploaded a set of almost 700 gorgeous and poignant photos of Civil War soldiers. I picked the one above more or less at random. The caption reads, "Unidentified young soldier in New York Zouave uniform."

Confederate Dissent Over Protective Tariffs and Bounties

I have written several times in the past concerning Article I, Section 8, Subsection (1) of the Confederate Constitution, which, among other things, barred "bounties" and protective tariffs.

Toward the end of his fine book, The Fragile Fabric of Union: Cotton, Federal Politics and the Global Origins of the Civil War, Brian Schoen provides a brief outline of the debate leading to the provision. Surprisingly - since protective tariffs and bounties had long been complaints of the lower south - there appears to have been a fair amount of dissent (the internal quotes are from Robert Barnwell Rhett, A Fire-Eater Remembers: The Confederate Memoir of Robert Barnwell Rhett [ed. William C. Davis]):

Some [delegates] argued for the desirability and even necessity of offering incentives to manufacturing by permitting protective tariffs, also noting that such a policy would help attract Upper South states. When [Robert Barnwell] Rhett, an ardent free trader, proposed a constitutional prohibition on protective tariffs or bounties, to his "astonishment" he "found great opposition to this policy. Georgia, Mississippi, and Louisiana were opposed to it; South Carolina, Florida and Texas were in favor of it." In the end, at least according to his autobiography, direct personal negotiation with the Alabama delegation resulted in that state's support.

About the illustration, entitled Funeral Obsequies of Free-Trade (1846):

A gloomy view of the effects of the Polk administration's Tariff of 1846. The artist echoes Whig condemnation of the measure as adverse to American trade. A funeral cortege, composed of administration supporters, carries the coffin of "Free Trade" to a grave marked by a monument with the names of sixteen states. The names of Pennsylvania and New York, two states particularly resistant to the new tariff, appear in large letters. Alabama, Arkansas, Illinois, Indiana, Louisiana, Michigan, Mississippi, Missouri, South Carolina, Tennessee, and Virginia are missing. Over the grave is a banner reading, "Here lies Free Trade! Be it understood / He would have liv'd much longer if he could." The pall-bearers are (left to right) Vice President George M. Dallas, James K. Polk, Secretary of State James Buchanan, and Secretary of War William L. Marcy, wearing his characteristic fifty-cent trouser patch (see "Executive Marcy and the Bambers," no.1838-5). Polk: "This is a dead weight and verry heavy Mr. Vice." Dallas replies: "I agree with every thing you say Mr. President. if you were to insist that the moon was made of green Cheese I would swear to it for a Consideration." Buchanan complains: "I say, army lower down your side a little, you are throwing all the weight on me." Buchanan, from Pennsylvania, drew considerable fire from his native state for his support of the new lower tariff. Marcy suggests: "Raise your side, state and then we'll throw the whole weight on our leaders." The mourners are administration supporters: editor Thomas Ritchie (here called "Mother Ritchie" and dressed as a woman), senators John C. Calhoun and George McDuffie, and congressmen Ambrose H. Sevier, Robert Barnwell Rhett, and Dixon Hall Lewis. Ritchie: "If he should be resucitated! What a paragraph it would make in my paper!! Nous Verrons." Calhoun: "Hung be the heavens with black!" McDuffie: "If the whigs should get in we must resort to Nullification!" Sevier: "this sticks in my gizzard!" Lewis (notoriously obese): "We must grin and bear it, though it makes me feel very heavy!" Rhett: "a plagu of this sighing! it wells one up most villainously!" In the lower margin is the narrative: "This unfortunate youth died of Home Consumption & was buried at Washington in Nov: 1846 [the date the tariff was passed]. He was carried to the grave by Polk, Dallas, Buchanan & Marcy. The chief Mourners were his Nurse Mother Ritchie, [. . .] the cenotaph is to be erected by the Whigs. 16 States have already contributed & others are coming in."

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

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

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

Stephens' discussion of his first point was brief and lacked detail. The bill, Stephens suggested, dishonestly deferred resolution of the issue of slavery in the territories and improperly shifted responsibility for the decision from Congress (to the Supreme Court). One section or the other would ultimately be angered by the outcome. Congress ought to face up to its responsibilities and deal with the consequences now rather rather than create a firestorm later on (some paragraph breaks added):

[W]hile [the Clayton Compromise bill] was urged as a compromise and a settlement of the agitating question which now so greatly distracts the public mind, it really settled nothing, but opened wide the door for greater and more alarming excitement. Those gentlemen of the North who advocated it, claimed it as a complete triumph of their principles; while those of the South, I suppose, were prepared to go to their constituents, and tell them that it fully secured all their rights. Now, sir, I do not believe in compromises or settlements that are not fully and clearly and distinctly understood on both sides at the time.

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

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

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

The real question, the great issue between the two sections of the country, has to be met sooner or later, and no shifting of responsibility, in order to get a postponement for the purpose of carrying a Presidential election, or relieving a candidate from an almost universally condemned position, will successfully evade it. And when it is met, I want it met fairly and squarely.

This, however, was merely prologue to Stephens' main point, “that for far greater and more controlling reasons, no southern man should have voted for that measure.” The bill, Stephens maintained, “proposed a total abandonment and surrender of the rights of the South. Not an open abandonment, but a covert one.”

I have much graver reasons than this for my opposition to the territorial bill which was rejected the other day in this House, on my motion. It is my object at this time to speak upon that measure, which some gentlemen are pleased to call the "compromise bill," but which might be more properly entitled Articles of Capitulation on the part of the South. So far from being a compromise, that bill proposed nothing short of an abandonment of the position of the South, and a surrender of the just rights of her people to an equal participation in the new acquisitions of territory. The surrender was covert, but it was no less complete and absolute.

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

Stephens began to explain his position by quoting from the key sections of the bill relating to the California and New Mexico territories, prohibiting the governments from legislating concerning slavery and inviting Supreme Court review. “The bill contains nothing else which bears materially upon the subject of slavery,” Stephens explained. But this left the southern slaveholder with, at best, nothing but “expensive and almost endless litigation”:

[The bill] leaves the southern man, who may be inclined to go there with his slaves, to contest his rights to the best of his abilities with the courts of Territory in the first instance, and then, if he chooses, with the Supreme Court of the Union.

All that the bill does is, to guard against the passage of any law for the protection of the master; but opens wide the door of expensive and almost endless litigation between him and his slave, without affording him even the shadow of a semblance of a hope that his rights, at the end of the law, will ever be recognized or enforced.

Worse, the bill ignored the underlying issue: what was the law that the courts were supposed to apply? Courts, Stephens cogently argued, don't create law, they apply it. What law would they be applying here?

The most interesting of all questions, Mr. Speaker, to the South, upon this point, is, by what law will the Territorial courts, in the first instance, and the Supreme Court of the United States, in the last resort, decide the question of freedom between master and slave? It is not the province of courts, in their judicial character, to make laws; they can only decide upon laws after they are made. And in the absence of legislation by Congress, and the Territorial Governments, upon this subject, by what law, I ask, will the courts decide questions between the master and his slave in these Territories?

Without yet answering the question, Stephens implied that southerners in favor of the bill had engaged in wishful thinking, viewing the anticipated outcome as “partisans” rather than as “statesmen”:

This, sir, is a great and vital question for us to consider – not as partisans, but as statesmen – before we refer a subject of so much interest to their decision. It is certainly a matter of the utmost importance to the people of the South, that they should not be left in ignorance upon it; and, so far as my ability goes, they shall not be.

Stephens then laid out his answer to question, exposing the core reason for his position. Sober legal analysis led to the conclusion that the courts would apply pre-existing Mexican law in force in New Mexico and California which barred slavery:

[A]ccording to the best, ablest, and most approved writers on public law, and according to the decisions of the courts in England, in analogous cases, and according to the repeated decisions of our own Supreme Court to which this bill proposed to refer this matter, (in the absence of such legislation as I have alluded to,), the law by which the courts would decide questions of slavery there is the law which was in force in New Mexico and California upon that subject at the time of the conquest.

This was because, Stephens asserted, legal principles and authorities demonstrated that

all the laws which were in force in the conquered county at the time of conquest, are held to continue in force until altered or modified by the conquering power, except such as may be inconsistent with the fundamental law of the conquering power, or inconsistent with some stipulation in the final treaty, or such as were purely political in their character, and concerned only the relations between the people and their sovereign or ruling power. . . . According to modern doctrine, the relations of the people towards their sovereign or ruling power, in whatever form of government, are changed; but their relations towards each other and their laws, as before stated, remain until modified or altered by the new governing power.

Citing and quoting from learned legal authorities on international law (Grotius, Vattel) and British and American legal decisions by Lord Mansfield, John Marshall and William Johnson), Stephens then delivered what amounted to a remarkably detailed legal brief, consuming three dense columns in the Congressional Globe, in support of these propositions.

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

The conclusion, then, was clear. Courts deciding freedom suits in New Mexico and California as contemplated by the Clayton bill would have been compelled to rule against the master:

From this I take it for granted that nobody will deny that slavery was abolished in California and New Mexico at the time of their conquest by our arms. If a slave at that time had brought an action for his freedom against his master before the courts of the country, does any man doubt but that the courts under the law then in force would have declared him to be free? And as our court has decided that in all such cases the laws of the acquired territory in force at the time of the acquisition, shall remain in force as the law of the place until altered by competent authority, can any man doubt that they would decide the question just as the Mexican courts would have decided it at that time?

In the next (and I expect final) post on the subject, I will look at the balance of Rep. Stephens's speech.