Salmon Chase and The Fugitive Slave Clause

I don't know whether Abram Smith, Sherman Booth or Byron Paine ever met Salmon Portland Chase, but they had clearly absorbed Chase's arguments about the constitutionality of the Fugitive Slave Acts. You will recall that one of Associate Justice Smith's principal arguments was that the Fugitive Slave Clause did not delegate any power to Congress. The Clause was simply a compact between the States, unenforceable by Congress.

Well, this was exactly the argument that Chase had been making and popularizing since the late 1830s, as part of his thesis that the founders loathed slavery and provided in the Constitution that the federal government should have nothing to do with it:

"Chase . . . tried to interpret the [fugitive slave] clause almost out of existence. The section . . ., Chase pointed out, differed from other clauses in neglecting to delegate to Congress power to enforce it by appropriate legislation. Since all powers not delegated to the federal government were reserved to the states, Chase insisted that the clause was really a compact between the northern and southern states, and that 'each State must judge for itself as to the character of the compact, and the extent of the obligation created by it.' The laws of 1793 and 1850 involving the federal government in the capture of fugitives were unconstitutional, since Congress had no power on the subject."

Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (Oxford Univ. Press 2d Ed. 1995) at 77.

Sound familiar?

This helps us understand, by the way, why many members of the Reconstruction Congress believed that it had the power to enforce the Thirteenth Amendment via civil rights legislation, even though that amendment contained no provision specifically delegating power to Congress to do so. It also helps explain why many members of the Reconstruction Congress believed that Section 1 of the Fourteenth Amendment was unnecessary. In Prigg v. Pennsylvania (1842), the Supremes had held -- contrary to Chase's arguments, that the Fugitive Slave Act of 1793 was constitutional: the Fugitive Slave Clause necessarily gave Congress, by implication, the power to enforce it. Members of the Reconstruction Congress reasoned or assumed that the Thirteenth Amendment similarly carried the necessary implication that Congress had the power it enforce it.

It was John Bingham of Ohio who drove his colleagues to include Section 1 in the Fourteenth Amendment because he was one of the few who understood that the implication of Barron v. Baltimore was that Congress did not have the power to enforce the provisions of the Bill of Rights against the States.

The Lessons of Vietnam?

Over at Millard Fillmore's Bathtub, Ed Darrell is beginning a series of posts on "Applying the Lessons of Vietnam in Afghanistan and Iraq". He begins by asking the right question: "Can we even say, with assurance, what those lessons are?" Unfortunately, he then does not answer it, or rather assumes that the answer is "yes," for he immediately launches into what he believes the first of those lessons is.

I say "unfortunately," because that first question is the crucial one. It is becoming clear that the answer is either "no" or "yes, but those lessons may well be exactly the opposite of those assumed by conventional wisdom."

Exhibit A is Mark Moyar's book, Triumph Forsaken: The Vietnam War, 1954-1965 (Cambridge University Press 2006). Mackubin Thomas Owens, Professor of National Security at the Naval War College, has written a glowing review in the Weekly Standard, "A Winnable War: The Argument Against the Orthodox History of Vietnam", which will provide some idea of Moyar's thesis.

You can't apply the lessons until you know what the lessons are. If Mr. Moyar and others are correct, most or all of the received wisdom is wrong -- and it makes a difference. Just today, for example, the Christian Science Monitor has published an article by Professor Owens in which he draws on Mr. Moyar's book. The Democrats won't like the title: "Why Bush's War Plan Can Work".

Jimmy Carter Says "Ouch!" Again and Again

At the Volokh Conspiracy: "Did Jimmy Carter Endorse Palestinian Terrorism?"

And Glenn Reynolds at Instapundit flags stories in the WSJ and elsewhere reporting that "[f]ourteen members of a Carter Center advisory board, who worked to build support for the human rights organization started by former U.S. President Jimmy Carter and his wife, have resigned in protest over Carter's latest book."

Take the "Name That Court" Quiz

Sorry, I've been sidetracked this week. Blogging should resume over the weekend.

In the meantime nobody has taken a stab at answering the question I posted asking what antebellum court or judge wrote a surprising anti-states rights quote.

I will probably answer that one over the weekend, so take a guess now!

Lemmon v. People XII

It's been a while. As you may recall, dissenting New York Court of Appeals Judge Thomas W. Clerke had concluded that, pursuant to the Constitution, "the citizens of any one State have a right of passage through the territory of another, peaceably, for business or pleasure; and the latter acquires no right over such person or his property."

He then turned to the question whether slaves were "property" under the rule he laid out. He answered in the affirmative, essentially arguing that the Constitution recognized slaves as property:

"[C]an any one State insist, under the federal compact, in reference to the rights of the citizens of any other State, that there is no such thing as the right of such citizens, in their own States, to the service and labor of any person. This is property; and whether the person is held to service and labor for a limited period, or for life, it matters not; it is still property -- recognized as an existing institution by the people who framed the present Constitution . . .."

Judge Clerke conceded that slavery was "a local institution," but found this no impediment to his conclusion:

"And what was the result of those convictions and deliberations [at the Constitutional Convention]? Undoubtedly, that while slavery should be deemed a local institution, depending upon the power of each State to determine what persons should share in the civil and political rights of the community the right is fully recognized in the Constitution, that any of the States may continue and allow the right of property in the labor and service of slaves."

Finally, Judge Clerke rejected the suggestion that the slaveholders' right was "founded merely on comity." The right to passage might be granted voluntarily under international law, but the Consititution cemented the right:

"The right yielded by what is termed comity under the law of nations, ripens, in necessary accordance with the declared purpose and tenor of the Constitution of the United States, into a conventional obligation, essential to its contemplated and thorough operation as an instrument of federative and national government."

Millard Fillmore Update

In a post the other day I reported that I had been unable to find a source for a quote frequently attributed to Millard Fillmore: "May God save the country, for it is evident that the people will not."

I was concerned that someone with half-decent research skills would immediately demonstrate that I was utterly incompetent. I'm therefore pleased to see that Professor David Parker at Another History Blog has reported that he has not turned up a source either. Whew!

Fore!

Can you believe it? I played golf today, in northwest New Jersey. It's January 7th, for heaven's sake!

Political Culture and Secession in Mississippi

Many books about the antebellum period and the period leading to secession go over the same timeline and events: the Mexican War connects to the Wilmot Proviso, which connects to the Compromise of 1850, which connects to the Kansas-Nebraska Act . . . you get the picture.

It's really nice to run into books that dig deeper, usually focusing on a particular state or region within a state. Christopher J. Olsen's fine book, Political Culture and Secession in Mississippi: Masculinity, Honor and the Antiparty Tradition, 1830-1860 (Oxford University Press 2000) is such a work. What I really like about it is that it puts you on the ground and helps explain, on a very practical level, how local institutions worked.

Rather than provide a generalized review, I thought I'd imitate Olsen's methodology by summarizing just a few pages, focusing on voting. At pages 125-31, Olsen provides a graphic description of the mechanics of voting in antebellum Mississippi that is a joy to read.

In rural areas, the polling station was often at a plantation. The board of police, a countywide elective body, appointed inspectors and other election officials, who were usually leading local men. For example, in the fourth precinct in Bolivar County in 1855, the poll was held at the house of the neighborhood's leading citizen, "Squire" William Vick. Squire Vick and two other planters served as election inspectors. Each voter walked through the gate of Squire Vick's "Nitta Yuma" plantation and approached the front veranda, where the inspectors greeted them and probably chatted with them. Squire Vick, as host, almost certainly treated voters to food and drink.

The voters then cast their votes under the watchful eyes of the inspectors and handed their ballots to the return officer, the nephew of another planter, for placement in the ballot box, and then gave their names to clerks. Because ballots of different candidates were usually different sizes and often different colors, voting was not secret. Functionally illiterate voters -- from 10 to 25 percent or more -- might ask for help filling out names of candidates for local offices, whose names were not on the ballots.

What wonderful images! You really get a feel for the process. The voters are free men who approach to exercise the quintessential right of free men. They are treated as free and equals by the leading citizens of the area, who may want their votes in the future. And yet the entire ritual subtlely but clearly emphasizes the wealth, importance and authority of the leading men. Professor Olson comments:

"All of these considerations betray the importance of the voting process as a public ritual, and underscore its many-layered meanings and implications. Especially in small rural neighborhoods, planter-inspectors potentially held vast power. Not everyone voted alike, but most did -- some out of genuine class bonding or a shared masculine perspective, but others because they felt pressured by Squire Vick and his friends. . . . Certainly the record implies numerous limitations on freedom of choice and demonstrates that deference and intimidation survived the movement to printed ballots and mass democracy. At the very least, scenes like those on Vick's veranda discredit notions of frontier democracy or the rampant egalitarianism that supposedly made elite hegemony or inherited hierarchy untenable in the Old Southwest."

Abe Had A Patent?

This is news to me: according to a post at Metafilter, "In 1849, Abraham Lincoln was awarded Patent No. 6469 . . . for a device for raising stuck riverboats off sand bars."

To Kill A Mockingbird

A Washington Post article on the adoption by Virginia libraries of the practice of ruthlessly culling unread books from their collections is getting a fair amount of play. Here's the Captain's Quarters version. I noticed with particular sadness that one book that hasn't been borrowed in two years from one library system is Harper Lee's achingly beautiful To Kill A Mockingbird. How terrible.

But then I wondered. Perhaps people are reading it, but via purchase rather than library loan. I haven't been to the library in decades (except once to get out of the rain); I don't even have a library card. If I wanted to read a great American novel that I didn't already have, I'd buy it, probably online.

The fact that the libraries seem to be replacing culled books with Stephen King's latest work may knock a hole in my theory: if I wanted to read the latest Stephen King book, I'd buy that too. On the other hand, the very latest Stephen King book is presumably available only in hardback, and some may not want to waste the money and shelfspace on a fairly expensive item that they know they will read only once.

Happy Birthday, President Fillmore!

Over at Millard Fillmore’s Bathtub, Ed Darrell included, in a post anticipating the thirteenth president’s birthday tomorrow, the following quote attributed to Fillmore: “May God save the country, for it is evident that the people will not.”

As I commented there, this quote does not sound like Fillmore. He seems to have shared the faith in “the People” common in the mid Nineteenth Century, and I’ve never detected that he was cynical or sardonic. As my birthday present to Fillmore, I set about to find the source.

The quote is, indeed, all over the web, but I was unable to find a source attributed anywhere. The quote is not in Bartlett’s (16th Edition 1992), nor is there a reference to it in Elbert Smith’s The Presidencies of Zachary Taylor and Millard Fillmore. The bottom line: I can’t find even a purported source, much less a reliable one.

If Fillmore did speak the words, I would guess that he did so later in life, perhaps during the election of 1860 or as the southern states were seceding. As I mentioned in an earlier post, he became depressed after the deaths of his wife and daughter in 1853 and 1854, and he was resoundingly defeated in 1856. I suppose it is possible that the perceived foolishness of the people in voting for a purely sectional candidate, Lincoln, or watching the dissolution of his beloved Union, triggered a bitter observation.

But at this point, the authenticity of the quote remains unproven. Fillmore deserves the benefit of the doubt until a reliable source surfaces. Happy 207th Birthday, Mr. President!

Stephen Breyer Says "Ouch!" Again

Having been kicked around very nicely by Judge McConnell, Justice Breyer now gets politely trashed one more, this time by Judge Richard A. Posner. Here's a sample:

"The bricolage [that Justice Breyer has assembled] is as ingenious as it is complex, but the curious consequence of such ecclecticism is that it puts the judge in approximately the position he would occupy if had no constitutional theory. For couldn't Justice Breyer pull a stick out of his bundle to justify any decision that he wanted to reach? It's not as if the sticks have different weights; each is available to tip the balance in a particular case."

Judge Posner's review, "Justice Breyer Thows Down the Gauntlet," 115 Yale Law Journal 1699 (May 2006), may be accessed here.

Update and Mea Culpa: I should have credited Maimon Schwarzschild's post at The Right Coast for leading me to Judge Posner's article, which Professor Schwarzschild calls "politely devastating." In addition, I see that Professor Mike Rappaport has also posted an entry at The Right Coast in which he administers a few more kicks.

Ableman v. Booth XII: "A More Dread Calamity"

Associate Justice Abram D. Smith closed his opinion with a paragraph that presumably summarizes the hopes and fears of many northerners. As you read it, remember that it was released on June 7, 1854, just one week after Congress passed the Kansas-Nebraska Act on May 30:

“What, then, is to be done? Let the free states return to their duty, if they have departed from it, and be faithful to the compact, in the true spirit in which it was conceived and adopted. Let the slave states be content with such an execution of the compact as the framers of it contemplated. Let the federal government return to the exercise of the just powers conferred by the constitution, and few, very few, will be found to disturb the tranquility of the nation, or to oppose, by word or deed, the due execution of the laws. But until this is done, I solemnly believe that there will be no peace for the state or the nation, but that agitation, acrimony and hostility will mark our progress, even if we escape a more dread calamity, which I will not even mention.”

Earlier Posts:

Ableman v. Booth I
Ableman v. Booth II
Ableman v. Booth III
Ableman v. Booth IV
Ableman v. Booth V
Ableman v. Booth VI
Ableman v. Booth VII
Ableman v. Booth VIII
Ableman v. Booth IX
Ableman v. Booth X
Ableman v. Booth XI

"He Came Here With Black Perjury Upon His Soul"

I mentioned in an earlier post that the attorney who represented Sherman Booth in the legal proceedings arising out of the liberation of fugitive slave Joshua Glover was Byron Paine (pictured left, I'd guess in the early 1860s). According to the Wisconsin Court System site, Paine was an abolitionist and friend of Booth who represented him without pay.

But this post is dedicated to more mundane matters. Paine also represented John A. Messenger, who with Booth apparently formed part of the crowd that freed Glover. Like Booth, Messenger was criminally charged in federal court in Wisconsin with aiding and assisting the rescue of a fugitive slave, in violation of the Fugitive Slave Act of 1850. A related decision captures a bit of Paine's courtroom style.

A certain Mr. Jennings was, it seems, a chief prosecution witness against Messenger. His testimony against Messenger was apparently damning, and Paine does not seem to have dented Jennings' credibility, for in his closing Paine was none too subtle. Speaking of Jennings' testimony, Paine's defense was: "He came here [as a witness] with black perjury upon his soul . . . He stood there with black perjury upon his soul . . . He is perjured."

The source is a decision by the Wisconsin Supreme Court in a slander action that Jennings brought against Paine, Jennings v. Paine, 4 Wis. 358, 1855 WL 1921 (1855). The holding, by the way, was that Paine's speech in the courtroom was absolutely privileged.

Saladin

I learned the other day that Saladin was a Kurd. I had no idea. How ironic!

I ran across this fact while watching a series of lectures on DVD from The Teaching Company called The Era of the Crusades, given by Professor Kenneth W. Harl of Tulane. An excellent introduction if you (like me) know little or nothing about that age. Even if you have more backrground than I, I suspect that the program would be worthwhile. Professor Harl was originally a classicist and spends a good deal of time on the Byzantines, whom I suspect get short shrift in many accounts.

The series was on sale when I bought it. Unfortunately, if you want to take my recommendation, it seems to have returned to full price.

Ableman v. Booth XI: Prigg v. Pennsylvania

The third and final hurdle that Justice Smith had to clear was Prigg v. Pennsylvania, in which the Supreme Court had ruled that the Fugitive Slave Act of 1793 was constitutional. Before he addressed that decision, he argued at length that the Fugitive Slave Act of 1850 also violated the Due Process Clause. Prigg did not address that issue. For that reason, among many others, the decision was not binding:

“In view of the dissentient opinions of the members of the supreme bench; in view of the discrepancy of opinion which has characterized all other decisions [on the issue]; in view of the fugitive character of the power here claimed by congress, leaping from article to article, from section to section, and from clause to clause, hovering now over a grant, then over a compact, fluttering now around an implication, then around an incident, to find whereon it may rest its foot; in view of the alarm which has seized upon many of the states in consequence of the enormous power which it has called upon congress to assume in its behalf, and the deep wounds which it seeks to inflict upon the rights and sovereignty of the states, and upon the great principles of human freedom; in view of all this, are we not justified in asking of the supreme court of the United States to review their decision . . .?”

Ableman v. Booth X: "There Is No Middle Ground"

The second objection that Justice Smith addressed was an intensely practical one. If the federal government was not empowered to enforce the Fugitive Slave Clause, how and by whom would the clause be enforced?

Again, it seems to me that Justice Smith’s answer comes up short. “[R]epudiat[ing] the degrading insinuation that state officers are less faithful to the constitution, than federal officers,” he simply affirmed that “every state officer, executive, legislative and judicial, who takes an oath to support the constitution of the United States, is bound” to enforce it. But what if they do not?

“The simple answer is, that when the state and federal officers become so regardless of their oaths and obligations as either question implies, anarchy or revolution, or both, must supervene, for the government would be a willful departure from the fundamental law of its organization, and the people would be absolved from their allegiance to it.”

To counterbalance this surprising and alarming conclusion, Justice Smith sought to demonstrate that the consequences of the alternative – granting federal power over matters covered by Article IV -- would be even more catastrophic:

“What would be thought . . . should congress pass a law to carry into effect that clause of the fourth article in regard to citizenship [i.e., the Privileges and Immunities Clause]? and declare pains and penalties against any state functionary who should fail to comply? What would be thought if congress should declare it a penitentiary offense, for any executive of a state to refuse to surrender a fugitive from justice? What state would submit to see its chief magistrate dragged before the federal tribunals, on charge of infraction of such a law . . .? And yet the power to legislate at all upon the subject, is assuming supreme and unlimited power over the whole matter. There is no middle ground.”

Ableman v. Booth IX: The Fugitive Slave Act of 1793

One counter-argument that Justice Smith addressed was the fact that in 1793 the Second Congress had passed the Fugitive Slave Act of 1793. Although the 1793 Act imposed fewer burdens than the 1850 Act, it clearly assumed that the federal government had power to deal with fugitive slaves – and thus strongly suggested that the founding generation believed or assumed that the Fugitive Slave Clause granted that power to Congress. Again, I strongly suggest that you take a look at my earlier post discussing Prigg v. Pennsylvania and the 1793 Act.

Justice Smith clearly struggled with this issue. In the end, his explanation is not persuasive. In fairness to him, it may be that there is no convincing explanation. He stated:

“The law of 1793 was in fact but little, if any more than organizing the state authorities for the constitutional duties devolved upon them. For that very reason, it passed without scrutiny . . .. It was practically nothing more than the states themselves carrying out the constitutional compact. Not until it began to be required that the states should yield up all control over these subjects, and a prostration of their sovereignty was demanded, did attention become aroused. No importance, therefore, can justly be attached to the fact that this act was passed by an early congress and was signed by the father of his country, and was acquiesced in by the states and people. It is a remarkable fact that the most startling deviations from strict constitutional limits occurred in the very earliest years of the republic. So it must always be. But time, discussion, and experience have heretofore proved adequate correctives. Added to these, state sovereignty jeopardized, federal encroachment apprehended, and consolidation menacing, can hardly fail to accomplish the desired ends.”

Ableman v. Booth VIII: The Fugitive Slave Clause As Compact Between the States

My earlier post on Prigg v. Pennsylvania will provide some background that may be useful to understanding why Associate Justice Smith believed that the Fugitive Slave Act of 1850 was unconstitutional.

Justice Smith began by reviewing the debates at the Constitutional Convention that resulted in the various provisions contained in Article IV of the Constitution, including but not limited to the Fugitive Slave Clause. He argued that the debates showed that, in Article IV, when the Convention delegated powers to Congress, it did so explicitly. For example, Section 1 of Article IV, the Full Faith and Credit Clause, specifically provided that “the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.”

Justice Smith argued that, except to the extent that it explicitly granted powers to the federal government, Article IV was simply a series of compacts among the states about how to handle certain matters among themselves. Those compacts did not authorize or contemplate any involvement by the federal government:

“The history [of the Constitution Convention debates relating to Article IV] is important, as it not only justifies and requires a distinction to be taken between grants of power and articles of compact, but it clearly demonstrates that the convention all along discriminated between grants of power to the government, and articles of compact between the states, and was extremely jealous and cautious in making such grants, and only did so when it was deemed absolutely necessary.”

One of those compacts was the Fugitive Slave Clause contained in Section 2 of Article IV, which stated:

"No person held to service or labor 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 labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

This clause, Justice Smith asserted, was the result of a quiet agreement “that the states would deliver up such fugitives from labor. No power was asked for the federal government to seize them; no such power was dreamed of; the proposition that the states should respectively deliver them up, was acquiesced in without any dissent."

Later, Justice Smith quoted all of Section 2 of Article IV – the Privileges and Immunities Clause, the Extradition Clause and the Fugitive Slave Clause. “Here is the whole of the section, without one word from which a grant may be inferred or implied.”

Although Justice Smith had made a strong case for the proposition that the Fugitive Slave Clause granted the federal government no power, he still had to deal with several counter-arguments. I will turn to those next.

Ableman v. Booth VII: "I Want My Skirts to be Clear"

Associate Justice Smith had rebuked Booth and his lawyer for trying to force him to rule on the consitutional issue and then held that technical defects in the warrant entitled Booth to discharge. At this point, there was no need for Justice Smith to rule on the constitutionality of the Fugitive Slave Act of 1850.

But at this point, Justice Smith does something strange. Having escaped the need to resolve the constitutional issue, he does so anyway. I will not pause to review his reasoning for doing so, which is unpersuasive, except to the extent it implicates his understanding of the relationship between the federal and state governments.

In the course of explaining himself, Justice Smith turns back to the issue of his own jurisdiction. In effect, he suggests that he, as a state judge, rather than a federal judge, should decide the constitutional issue, because the sovereignty of the states is at issue and the federal government should not determine the extent of its own powers. I quote the following passage at some length because it is a truly remarkable summary of federalist theory given its source:

"The judicial department of the federal government is the creature by compact of the several states, as sovereignties, and their respective people. That department can exercise no power not delegated to it. All power not delegated and not prohibited to the states, the states have expressly reserved to themselves and the people. To admit that the federal judiciary is the sole and exlusive judge of its own powers, and the extent of the authority delegated, is virtually to admit that the same unlimted power may be exercised by every other department of the general government . . .. But I solemnly believe that the last hope of free representative and federative government rests with the states. Increase of influence and patronage on the part of the federal government naturally leads to consolidation, consolidation to despotism, and ultimate anarchy, dissolution and all its attendant evils.

"If the sovereignty of the states is destined to be swallowed up by the federal government; if consolidation is to supplant federation, and the general government to become the sole judge of its own powers . . ., as an humble officer of one of the states, bound to regard the just rights and powers both of the union and the states, I want my skirts to be clear, and that posterity may not lay the catastrophe to my charge. . .

"Without the states there can be no union; the abrogation of state sovereignty is not a dissolution of the union, but an absorbtion of its elements. He is the true man, the faithful officer, who is ready to guard every jot of power rightfully belonging to each, and to resist the slightest encroachment or assumption of power on the part of either."