The Fugitive Slave Act of 1793 2: The Constitutional Convention

The surprisingly brief history of the Fugitive Slave Clause at the Constitutional Convention is pretty well know. Nonetheless, for convenience I'll recap it here.

The issue of fugitive slaves first arose in the convention in connection with the consideration of proposed Article XV as reported by the Committee of Detail on Monday August 6, 1787. Article XV as reported stated in its entirety:

XV

Any person charged with treason, felony or high misdemeanor in any State, who shall flee from justice, and shall be found in any other State, shall, on demand of the Executive power of the State from which he fled, be delivered up and removed to the State having jurisdiction of the offence.

In other words, at that point the proposed article contained only what ultimately became the Extradition Clause.

At the very end of the session on Tuesday August 28th, Pierce Butler and Charles Pinckney of South Carolina brought up the idea of a fugitive slave provision for the first time:

Art: XV being taken up, the words "high misdemeanor," were struck out, and "other crime" inserted, in order to comprehend all proper cases: it being doubtful whether "high misdemeanor" had not a technical meaning too limited.

Mr. BUTLER and Mr. PINKNEY moved "to require fugitive slaves and servants to be delivered up like criminals."

Mr. WILSON. This would oblige the Executive of the State to do it at the public expence.

Mr. SHERMAN saw no more propriety in the public seizing and surrendering a slave or servant, than a horse.

Mr. BUTLER withdrew his proposition in order that some particular provision might be made apart from this article. Art XV as amended was then agreed to nem: con:

Adjourned

On the next day, the convention returned to the subject. Again, the discussion was exceedingly brief. Mr. Butler proposed language that the ultimately became the Fugitive Slave Clause, and it was agreed to without dissent. Madison’s relevant notes state in their entirety:

Mr. BUTLER moved to insert after art: XV. "If any person bound to service or labor in any of the U. States shall escape into another State, he or she shall not be discharged from such service or labor, in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor," which was agreed to nem: con:

Ultimately the proposed Articles, including Article XV, were referred to the “Committee on Stile.” The Committee reported its handiwork on Wednesday September 12th. Article XV had become Article IV, Section 2. That section contained three provisions: the Privileges and Immunities Clause, the Extradition Clause and the Fugitive Slave Clause. The Committee had slightly changed Mr. Butler’s language, but not in any material way:

Sect. 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled be delivered up, and removed to the state having jurisdiction of the crime.
No person legally held to service or labour in one state, escaping into another, shall in consequence of regulations subsisting therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due.

In the review of the Committee’s draft that followed, only one proposal was made concerning the language of Article IV, Section 2. Although it reflects the sensitivity of some members to the moral issues that slavery involved, it did not change the substance. Again, here is Madison’s entire discussion of the change, which was made on Saturday September 15th:

Art. IV. Sect 2. parag: 3. the term "legally" was struck out, and "under the laws thereof" inserted after the word "State," in compliance with the wish of some who thought the term legal equivocal, and favoring the idea that slavery was legal in a moral view.

Thus the Fugitive Slave Clause reached its final form:

No person held to service or labour in one state under the laws thereof, escaping into another, shall in consequence of regulations subsisting therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due.

The Fugitive Slave Clause undoubtedly gave slaveowners something of value. The Articles of Confederation had contained no similar provision, nor had the Articles given the Confederation Congress power over the issue. At most, masters might attempt to exercise their common law right to recapture fugitives on their own, but it appeared that nothing restricted free states from denying that right by asserting that any slave who entered their territory could not be seized and returned.

It is also fair to say that slaveowners believed they were obtaining something of value. As Akhil Amar has summarized:

The clause thus gave slave states an explicit guarantee that they lacked under the background legal rules in place in 1787 America. In trying to sell the Constitution to his fellow slave masters in Virginia, Madison explained that, despite its linguistic indirection, the language governing “service or labour” was “expressly inserted, to enable owners of slaves to reclaim them. This is a better security than any that now exists.” Without the clause, free states could not only refuse to “deliver[] up” fleeing slaves but could even formally free them, reported Madison. “At present, if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws; for the laws of the states are uncharitable to one another in this respect.” In the Carolinas, leading Federalists offered similar accounts of Article IV.

See Elliot’s Debates 3:453 (Madison); 4:176 (James Iredell); 4:286 (Gen. Charles Cotesworth Pinckney); Farrand’s Records 3:84 (William Blount, Richard D. Spaight and Hugh Williamson to Gov. Richard Caswell of North Carolina).

Over the following decades, however, advocates of slavery increasingly came to inflate the protections that they had supposedly bargained for and received. For example, in 1842, Mr. Meredith, one of the attorneys who argued Prigg for the State of Maryland, maintained:

It was during this conflict of law, of opinions and of interests between the northern and southern states, that the constitution embracing the provision in question was adopted. That provision, it is well known, was the result of mutual concessions in reference to the whole subject of slavery. On the one hand, the south agreed to confer upon congress the power to prohibit the importation of slaves after the year 1808; on the other, the north agreed to recognise and protect the existing institutions of the south; and for that very purpose, the clause in question was engrafted upon the constitution. The history of the times proves, that the south regarded and relied upon it, as an ample security to the owners of slave property. In the Virginia convention, in order to satisfy the minds of the people, that property of this description was abundantly protected, Governor Randolph held this language: “Were it right to mention what passed in convention on the occasion, I might tell you, that the southern states-even South Carolina herself- conceived this property to be secured by these words.” Such, undoubtedly, was the confidence of the whole south, in the intention of the framers of the constitution. Such was their intention; and if so, it would seem to follow as a necessary consequence, that they meant to commit all legislative power over the subject exclusively to Congress. The provision was manifestly intended to restore to the south the rights which the customary law had formerly extended to them, in common with the other colonies. Those rights had been disregarded by many of the states. And the apprehension must have forced itself upon every southern mind in the convention, that if the provision were left to be carried out by state legislation, it must prove but a precarious and inadequate protection.

(Emphasis added)

The Fugitive Slave Act of 1793 1: Congress Establishes a Legislative Precedent

I've been itching to post some more about the Fugitive Slave Act of 1893 and Prigg v. Pennsylvania, the 1842 Supreme Court case that held that act constitutional and one of the most interesting and important cases of the first half of the Nineteenth Century. The problem was, I couldn't figure out where to start. With the facts of Prigg? They are their own confusing story. With the enactment of the Fugitive Slave Act in 1793? That leaves out a lot of pre-history.

Then I figured it out. I should start by discussing an event that occurred at the dawn of this country's legislative history, an event that is fascinating in its own right, an event that has nothing to do -- on its face -- with the Fugitive Slave Act. Here it is.

Do you know what the very first act passed by the United States Congress and signed into law was? It was none other than " An Act to regulate the Time and Manner of administering certain Oaths".

Article VI of the Constitution contained (and still contains) a clause that requires that both federal and state officials swear (or affirm) to support the Constitution:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

That first statute was designed to put some meat on the bones of that constitutional provision. Section 1 of the Act began by specifying the precise form that the oath was to take:

That the oath or affirmation required by the sixth article of the Constitution of the United States, shall be administered in the form following, to wit: "I, A.B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States."

The remainder of Section 1 and Section 2 then laid out details regarding oath-taking by federal officials: who would take it, who would administer it, and when it was to be administered.

Section 3 of the Act provided similar details for state officials. It required that all state officials take the specified oath or affirmation and prescribed when they would take it, who could administer it, and the like:

And be it further enacted, That the members of the several State legislatures, respectively, and all executive and judicial officers of the several States, who have been heretofore chosen or appointed, or who shall be chosen or appointed before the first day of August next [1790], and who shall then be in office, shall, within one month thereafter, take the same oath or affirmation, except where they shall have taken it before; which may be administered by any person authorized by the law of the State, in which such office shall be holden, to administer oaths.

In the future, all state officers would be required to take the oath before they embarked on their duties:

And the members of the several State legislatures, and all executive and judicial officers of the several States, who shall be chosen or appointed after the said first day of August [1790], shall, before they proceed to execute the duties of their respective offices, take the foregoing oath or affirmation, which shall be administered by the person or persons, who by the law of the State shall be authorized to administer the oath of office; and the person or persons so administering the oath hereby required to be taken, shall cause a record or certificate thereof to be made, in the same manner, as, by the law of the State, he or they shall be directed to record or certify the oath of office.

The bill originated in the House of Representatives. On Monday April 6, 1789, the House passed a resolution specifying the form of oath to be taken by its own members. At the same time, the House appointed a committee of five members (including James Madison) "to bring in a bill to regulate the taking the oath or affirmation prescribed by the sixth article of the Constitution."

The late David P. Currie relates that the bill that emerged from the House concerned only federal, not state, officials. This, Professor Currie opines, was reasonable and within the bounds of the Constitution:

Insofar as [federal] legislators and legislative employees were concerned, such a statute could be explained as necessary and proper to the exercise of congressional powers, since neither members nor staff could function without taking the oath. Nor could there have been any constitutional objection to regulating the oath that Article VI required of federal executive and judicial officers, as the bill did when it emerged from the House -- for the necessary and proper clause empowered Congress to enact legislation carrying into effect not only its own powers but also those vested in any other federal officer or department, and the regulation was as necessary for other officials as for members of Congress themselves.

Section 3, the provision concerning state officials, was added in the Senate. The deliberations of that body were not then open to the public, and debates in the Senate were not officially recorded. Nonetheless, unofficial sources -- particularly the journal entries of Pennsylvania Senator William Maclay -- indicate that objections promptly arose. In particular, some Senators denied, apparently heatedly, that Congress had the power to prescribe oaths for state officials:

A diversity of opinion arose whether the law [concerning oaths] should be extended so as to oblige the officers of the State governments to take the oaths. The power of Congress to do this was asserted by some and derided by others in pointed terms.

Several days later, the debate on the issue resumed. Senator Maclay objected that the Constitution did not delegate to Congress the power to legislate on the subject:

The question was not whether the [state] officers should take the oath, but was it our business to interfere in it? It was equally clear that Senators, Representatives, and electors were to be chosen by the States, but who ever thought of a law to oblige them to do these things? The adopting States, by the terms of their adoption, had pledged themselves to conform to the Constitution, which contained these things among its fundamental rules; that among the powers delegated to Congress this was not mentioned, nor was it necessary, being already provided for in the Constitution . . ..

When the bill returned to the House for consideration of the Senate amendments, Section 3 raised a similar storm. Elbridge Gerry of Massachusetts immediately complained that “he did not discover what part of the constitution gave to Congress the power of making this provision, except so much of it as respects the form of the oath; it is not expressly given by any clause of the constitution . . ..”

Rep. Gerry rejected the idea that “the sweeping clause” – another name for the Necessary and Proper Clause found at the end of Article I, Section 8 – might authorize the provision. Even though “there seems to be no limitation” to the Clause, Gerry noted that it “gives no legislative authority to Congress to carry into effect any power not expressly vested by the constitution.”

The Constitution was the supreme law of the land, Gerry maintained, and the states were obligated to follow its provisions, including the provision in Article VI that required state officers to take the oath described therein. But this fact only strengthened the conclusion that Congressional legislation was unnecessary and unauthorized:

In the constitution, which is the supreme law of the land, provision is made, that the members of all the Legislatures of the several States, and all executive and judicial officers thereof, shall be bound by oath to support the constitution. But there is no provision for empowering the Government of the United States, or any officer or department thereof, to pass a law obligatory on the members of the Legislatures of the Several States, and other officers thereof, to take this oath. This is made their duty already by the constitution, and no such law of Congress can add force to the obligation . . ..

Gerry concluded his argument with a remarkably prescient and radical invocation of the principle of judicial review. Congressional action was also unnecessary because the Constitution itself in effect provided drastic remedies if state officials disregarded Article VI by taking failing to take the oath prescribed by it. In that event, their actions would be void, and the courts, pursuant to their constitutional obligations, would annul them:

[T]he oath required by the constitution being a necessary qualification for the State officers mentioned, cannot be dispensed with by any authority whatever other than the people, and the judicial power of the United States, extending to all cases arising in law or equity under this constitution. The judges of the United States, who are bound to support the constitution, may, in all cases within their jurisdiction, annul the official acts of State officers, and even the acts of the members of the State Legislatures, if such members and officers were disqualified to do or pass such acts, by neglecting or refusing to take this oath.

Of the responses to Rep. Gerry’s arguments, Professor Currie has identified New Jersey Rep. Elias Boudinot’s as the most significant. Rep. Boudinot argued, in effect, that “Article VI itself implicitly authorized Congress to implement its provisions”:

As to the policy or expediency of the measure, [Mr. Boudinot] entertained not the least doubt respecting it. The constitution said only that the officers of Government should be bound by oath, leaving to Congress to say what oath. In short it was the duty of the House . . . to detail the general principles laid down in the constitution, and reduce them to practice.

Professor Currie comments:

This was not a necessary conclusion. The principle that had justified the House in prescribing the form of the oath for its own personnel would have justified the states in doing the same for theirs. Indeed Article IV’s explicit provision authorizing Congress to effectuate the full faith and credit clause arguably strengthens the inference that when the Framers wanted Congress to implement constitutional provisions they said so. On the other hand, as Chief Justice Marshall would later tell us, the last thing the necessary and proper clause was meant to do was to limit the authority implicit in other constitutional provisions [citing McCulloch v. Maryland]. Like the sweeping clause itself, the power to flesh out full faith and credit may have been inserted out of an abundance of caution.

At all events, the House passed the bill as amended:

The question on concurring with the Senate in the amendments to the bill was carried, with an amendment, that the members of the State Legislatures be directed to take the oath at their next sessions respectively.

The bill was, by order of the House, returned to the Senate as amended.

Legislators, of course, do not issue opinions explaining the reasons for their votes. However, as a practical matter, the passage of the bill established two important legislative precedents. First, Congress had legislated on a subject that was not among those delegated to it by Article I, Section 8. Second, that legislation required state officers to take specific action.

The same principles would come into play a few years later. Professor Currie again:

Four years later this action served as precedent for the far more significant Fugitive Slave Act, which implemented a clause of Article IV that was as silent with respect to congressional authority as the oath provision of Article VI. It was in the emotionally charged context of the fugitive slaves that the Supreme Court would ultimately accept Boudinot’s argument of implied authority in the great case of Prigg v. Pennsylvania.

Abe and John

I spotted this interesting 19th Century photo alteration here. The caption reads:

Circa 1860: This nearly iconic portrait of U.S. President Abraham Lincoln is a composite of Lincoln's head and the Southern politician John Calhoun's body. Putting the date of this image into context, note that the first permanent photographic image was created in 1826 and the Eastman Dry Plate Company (later to become Eastman Kodak) was created in 1881.

The Texas-New Mexico Border: New Mexico Stakes its Claim

In May 1850, at the urging of the Taylor administration, New Mexico held a constitutional convention that drafted a proposed state constitution and petitioned for admission.

The boundary section [of the proposed constitution] . . . prescribed a line beginning at the dam in the Rio Grande near El Paso running due east to 100 degrees west longitude and due north on that meridian to its intersection with the Arkansas River [in what is now Kansas]; then up that river to its source [in what is now Colorado] and then in a direct line to the intersection of 111 degrees west longitude with the Colorado River; then due south on that meridien to the Gila River and up that river to some point yet to be determined as the international boundary by a U.S.-Mexican commission, then east along this international boundary line, to the Rio Grande and, finally, down the Rio Grande to the place of beginning.

Mark J. Stegmaier archly observes:

Just as Texas had laid claim to the settled parts of New Mexico, so did the New Mexico convention audaciously lay claim to an area that included at least two longitudinal degrees of territory within the settled area of Texas.

The Texas-New Mexico Border: The Webster-Bell Plan

The Joint Resolution of Congress authorizing the annexation of Texas to the United States, signed by President Tyler on March 1, 1845, included a provision that up to four additional states of “convenient” size, in addition to Texas, could later be created from the state's territory. Moreover, states that were formed from Texas lying south of the Missouri Compromise line would admitted "with or without slavery":

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 said state, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution. And such states as may be formed out of that portion of said territory lying south of thirty-six degrees thirty minutes north latitude, commonly known as the Missouri compromise line, shall be admitted into the Union with or without slavery, as the people of each state asking admission may desire. And in such state or states as shall be formed out of said territory north of said Missouri compromise line, slavery, or involuntary servitude, (except for crime,) shall be prohibited.

Five years later, the application of California for admission as a free state threatened to upset the balance of free states and slave states in the Senate. In addition, most observers expected that New Mexico and Deseret (Utah) would prove inhospitable to slavery. One potential remedy was to take advantage of the Joint Resolution’s invitation and divide Texas into two or more states – presumably slave states – each of which would have its own senators.

Senators Daniel Webster and John Bell contemplated precisely such a plan as a key element of a compromise to the resolve the Crisis of 1850. In late February 1850, newspapers reported on elements of a compromise plan that Webster was expected to introduce. Among other things, Webster was reportedly contemplating a proposal to divide Texas into no fewer than three states. Texas itself (marked "T" on the map above) would be reduced to the area between the western border of Louisiana and the Trinity River; to the west, one new state (marked "1") would extend from the Trinity River on the east to the Colorado River on the west; even further west, a second new state (designated "2") would be created between the Colorado on the east and the Rio Grande on the west.

The northern boundary of the new states would be 34 degrees north. Land north of 34 degrees would be ceded to the federal government and included in New Mexico territory.

Webster never introduced his proposal because colleagues told him that it would be viewed as so pro-southern in New England that it would destroy his political career. However, Whig Senator John Bell of Tennessee then introduced a plan that was based on Webster's. "The propositions for the subdivision of Texas [in Bell's Plan] were exactly the same as those reported as part of Webster's plan in the press."

Mark J. Stegmaier reports that the Bell Plan "initially received some supportive comments, but [it] would fail as the basis for compromise, just as all other schemes focused on the subdivision of Texas did." There were two primary reasons for this. First, "the great majority of Northern legislators [would] not countenance a subdivision." But equally important was the fact that "the Texans did not desire it either."

Texans could appreciate the need for more slave states and the intent of the 1845 annexation resolutions to permit Texas to subdivide into as many as four additional states, but, when it came to the practical accomplishment of this, Texans were at best reticent and mostly hostile to the idea in 1850. Many were fearful of the economic and trade implications of dividing the old imperial republic into states of middling size. More worrisome was the slavery question in west Texas. The frontier region beyond the Colorado was still sparsely populated, and the whites there possessed only a few slaves. The reality was that any state in that area would probably become a free state if detached from eastern, slaveholding parts of Texas. Texans' dread of a free-soil territory or state on their norther and western border in New Mexico was only compounded when they considered that a state carved out of the frontier even closer to the settled parts of Texas would likely also become a free state.

The Texas-New Mexico Border: Clay's Proposal

Many accounts of the Compromise of 1850 treat the resolution of the Texas-New Mexico boundary dispute as an afterthought, or at least a subsidiary issue. Mark J. Stegmaier's Texas, New Mexico, & The Compromise of 1850: Boundary Dispute & Sectional Crisis places the emphasis where I think it should be:

Of all the issues presenting themselves in 1850, this one alone -- the boundary dispute -- offered the immediate potential for bloodshed and subsequent evils if Texas should send a militia force into New Mexico. President Taylor's already-strong distaste for Texans and his belief that the Texan claim to New Mexico east of the Rio Grande was invalid, combined with his stalwart inflexibility, only added to the volatility of this situation.

One reason I'm enjoying the book (thanks Sean Nalty for the recommendation!) is that it contains a number of maps illustrating different proposals that were made to resolve the Texas-New Mexico border and, in some cases, to carve additional states out of Texas. I'd read descriptions of some of these proposals, but they were always hard to visualize.

In fact, I had been looking on the net for several years to see whether anyone had posted maps showing at least some of the proposals. I never found any. It is that dearth of maps that I propose to remedy.

The boundary proposal that I was most interested to understand was that proposed by Henry Clay as part of his initial compromise plan at the end of January 1850. Professor Stegmaier describes Clay's boundary proposal as follows:

[Clay's] third resolution suggested that the boundary run up the Rio Grande "to the southern line of New Mexico" and thence eastward to the 1819 treaty line between Spain and the United States [i.e., the western border of the state of Louisiana]. However, Clay never specified where "the southern line of New Mexico" lay.

The choice for the southern border of New Mexico was (again according to Professor Stegmaier) probably either 32 or 34 degrees north latitude. Of the two, Professor Stegmaier believes that Clay must have intended (assuming he understood the geography sufficiently to have an intention one way or the other) the more northerly 34 degree line:

Clay, in devising his compromise, certainly did not intend to promote the latter view [the 32 degree line], which Texans and all other Southerners at the time would have deemed absurd. The Southern extremists in Harrison County, Texas -- which lay above 32 degrees -- were about as likely to accede peacefully to such a proposal as those in Charleston, South Carolina, would have been!

To illustrate the difference, I have taken a county map of current Texas, New Mexico and environs, drawn in rivers and some population centers, and then drawn lines across at 32 and 34 degrees. That is the map that appears at the top of this post. It should give you some idea of Clay's proposal(s), and the difference between it (or them).

Unfortunately, I have not yet figured out how to label the elements (rivers and population centers) I have added. I uploaded the map to Flickr and placed labels on the map there. You may see the Flicker version here.

The version of the map at the top of this post expands to a larger version if you click on it (I hope).

Dancing in the Streets

I, for one, am going out dancing in the streets. Obama has clearly lost his mind. The Republicans with have a field day with Biden. I am not being facetious.

The Eleventh Amendment and the Sovereignty of the States

I believe I have previously expressed regret that students of American history do not take more advantage of some of the historical studies being produced by legal scholars. This is understandable. Much writing by legal historians winds up in law reviews. Although law review articles and drafts are becoming more accessible via the internet and SSRN, it may simply not occur to laypersons with a historical bent to look there. In addition, law reviews for the most part tend to publish obscure, turgid rubbish, which is of no interest to lawyers, much less non-lawyers. It’s not easy to find the historical wheat amongst the legal trash.

Still, there are legal books and articles out there that I think would be comprehensible, interesting and useful to lay students of history. A number of members of the academic legal community are producing articles and books with substantial historical components. In large part, this is the result of an increasing appreciation of the need to explore the original understanding of the United States Constitution and the Amendments to it.

By way of example, I thought I’d briefly discuss an article I read recently that I think might be of interest to serious American history students. It is freely available on SSRN, so it costs you nothing to take a peek.

Leaving the Chisholm Trail: The Eleventh Amendment and the Background Principle of Strict Construction is by Kurt T. Lash, a professor at Loyola Law School (Los Angeles). Professor Lash has written a number of great articles on the Ninth and Tenth Amendments and is one of the writers on constitutional history that I always make sure to read.

The Eleventh Amendment is obscure even to most lawyers. Very briefly, after the Constitution was ratified in 1788, a number of states were named as defendants in lawsuits brought in federal courts (that is, the United States Supreme Court or inferior courts created by Congress) by citizens of other states or countries. The states were not sued in their own (state) courts because that was not an option – at the time, every state had declined to waive the sovereign immunity that protected it from suit.

In February 1793, the United States Supreme Court, in a case called Chisholm v. Georgia, held that the Constitution authorized States to be sued in federal court, without their consent, by citizens of other States or foreign countries.

With a handful of exceptions, the states expressed outrage, and acted on it. They directed their representatives in Congress to amend the Constitution. Within eleven months, both the Senate and the House passed, by overwhelming margins (23 to 2 and 81 to 9 respectively), a proposed corrective amendment. Less than a year after that, a sufficient number of states ratified the proposed amendment, which became the Eleventh Amendment, declaring that the Court had incorrectly construed the Constitution.

Professor Lash uses this story to document and illuminate what Americans at the time understood the relationship between the federal government and their state governments to be. The central impulse that fueled outrage was the widespread belief and understanding that the states remained sovereign entities, which were entitled to sovereign immunity. The Supreme Court’s ruling effectively stripped the states of their status as sovereigns and treated them instead as mere “dependent corporate bodies”. The federal government alone was sovereign. Consolidation, loss of freedom and tyranny were the foreseeable results.

Nowadays, most of us (except for some of us troglodytes) are accustomed to thinking of the federal government as the bulwark of liberty, protecting us against the potentially repressive states, which have been reduced to virtual nonentities. Professor Lash’s article provides a vivid illustration of the startlingly different worldview of the founding generation. At the very beginning of the article, for example, he paints a dramatic picture of the dying John Hancock, then Governor of Massachusetts, rising from his final illness to call the state legislature into special session to address what he believed was an imminent threat to liberty:

There are certain inherent principles in the Constitution . . . which can never be surrendered, without essentially changing the nature, or destroying the existence of the Government. . . . A consolidation of all the states into one Government, would at once endanger the Nation as a Republic, and eventually divide the States united, or eradicate its principles which we have contended for.

At the same time, Professor Lash tells a tense and tawdry tale of deceit and deception by the federalists who championed and won ratification of the Constitution. In and in connection with the state conventions called to consider ratification, the federalist proponents repeatedly promised that, except as to those powers specifically delegated to the federal government, the states would remain sovereign. For example, in Federalist 39, James Madison’s “Publius” insisted that the federal government’s “jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”
More specifically, proponents of ratification also repeatedly promised that it was inconceivable that states could be sued against their will in federal court under the Constitution – the States retained their sovereignty, and they had not ceded it to the federal government. The text of the proposed Constitution contained a provision that appeared to permit suits against States: Article III, Section 2 provided in relevant part that

The judicial Power shall extend to all Cases, in Law and Equity . . . between a State and Citizens of another State . . . and between a State . . . and foreign States, Citizens or Subjects.

Nonetheless, Madison (for example) assured the Virginia Convention in no uncertain terms that this language did not permit states to be hauled into federal court without their consent:

It is not in the power of individuals to call any state into court. The only operation it [Article III, Section 2] can have, is that, if a state should wish to bring suit against a citizen, it must be brought before the federal court. . . . It appears to me that this can have no operation but this – to give a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it.

Likewise, in Federalist 81, Alexander Hamilton (of all people) represented that states could not be sued without their consent precisely because they would remain sovereign entities:

It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States and the danger intimated must merely be ideal. . . . The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force.

Finally (one last example), in the Massachusetts convention, Rufus King, according to the reporter,

“pledged his honor that the convention at Philadelphia never discovered a disposition to infringe on the government of an individual state; and that in his opinion no Congress on earth would dare invade the sovereignty of this commonwealth.” On the strength of this gentleman’s opinion, [Article III] was assented to but by a small majority.

And yet, only five years later, when the Supreme Court ruled otherwise, many “national” federalists (my term) justified the result by citing what we today would call the “plain meaning” of the language of Article III, Section 2. Others remained conspicuously silent.

Doubters who had relied upon the assurances of proponents were understandably outraged. “Brutus” of Massachusetts specifically reminded readers that “’apprehensions’ about Article III voiced in the state ratifying convention ‘were said to be groundless by the advocates of the Constitution, and the jealousies of the members on that subject, were laughed at, and treated as ridiculous by [Rufus] KING and others.”

These suspicions were considered by them, as visions and chimeras of the brain, and as phantoms of distorted imaginations. But what do we now behold! These chimeras, these phantoms, these visions, are no longer imaginary, but appear in bold colors of a demand, as founded on that very Constitution!

“A True Federalist” spelled out similar thoughts:

I am a firm friend to the federal government; I consider it as an inestimable blessing to this country . . . . But I consider our motion, and your arguments and opinions as subversive of it, and as tending to establish a civil government for the United States, which the citizens of these communities, have never consented to. When the Constitution under consideration, was proposed to the people of Massachusetts, some men, in whom the people had placed confidence, openly and solemnly declared, that there never could be a construction given to it which would render the states liable to be sued on a common civil process. Some of them, for reasons very obvious to their fellow citizens, have altered their opinions, and others openly confess, that they thought it best to deceive the people into the measure of adopting the plan proposed. The idea of deceiving the people into a measure, is much more criminal, in my opinion, than of subduing them by force; in the first there is necessarily a perfidious breach of trust, but in the last here is only open and manly warfare. The first is predicated upon the tyrannical idea, that the people are incapable of understanding what is best for them, and most conducive to their own political happiness; but in the last there is a hope of relief in revolution, to be gained at one time or another, by superior force.

Professor Lash uses the underlying history as a basis to raise a number of more purely “legal” issues. It may well be that the student interested in history rather than legal theory will want to skim over portions of the article or ignore them entirely. But substantial portions of the article can be read simply as thought-provoking history. How did most people understand the relationship between the federal and state governments? Were the anti-Federalists the paranoid nut-jobs they are usually portrayed as now? Conversely, should we reconsider, or at least temper, the exalted status we accord some of the Federalist icons?

The Vote for President in New Jersey, 1860

In the presidential election of 1860, New Jersey awarded 4 electoral votes to Abraham Lincoln and three electoral votes to Stephen A. Douglas. How did this happen? This New York Times article from December 26, 1892 tells the story.

After the breakup of the Democratic nominating convention in Charleston, SC, a second convention met in Baltimore and nominated Stephen Douglas.

Back in New Jersey, however, that did not settle matters. The State Committee of the party was in the hands of friends of the Buchanan administration. For this reason, and because it wanted to present a slate of electors with the broadest possible appeal in the hopes of defeating Abraham Lincoln, the state Committee was unwilling to endorse a slate of seven pro-Douglas electors.

The Douglas men rejected this idea. They gathered in a convention in Trenton, NJ on July 25, 1860 and nominated a slate of seven pro-Douglas electors:

William Cook of Hudson County
Joel Parker of Monmouth County
Theodore Runyon of Essex County
Abraham W. Nash of Camden County
Moses Wills of Burlington County
Joseph Vliet of Warren County
Daniel S. Anderson of Sussex County

The State Committee refused to back down, however. It nominated a fusion slate of seven electors divided among the anti-Republican factions as follows:

The three pro-Douglas electors William Cook, Joel Parker and Theodore Runyon;
Two pro-Breckinridge electors, Alexander Wurts and Peter D. Vroom; and
Two pro-Bell electors, Silas Condict and Edmund Brewer.

Notwithstanding protests of Douglas men, the State Committee had sheets printed listing these seven names as the official Democratic ticket and distributed them to local party leaders throughout the state. The local party leaders would make these printed tickets available to voters, who could cast them as their ballots. Under conventions of the time, voters submitted the preprinted tickets as their ballots, either as is or after making changes (by, for example, crossing out one or more names and writing others in by hand).

One local pro-Douglas party leader, however, rebelled. He refused to distribute the fusion tickets he had received from the State Committee. Instead, he distributed tickets containing the names of the seven pro-Douglas electors.

The election was sufficiently close in New Jersey that the loss of some 5,000 to 6,000 fusion tickets affected the outcome. The three Douglas electors who appeared on both the fusion ballots and the straight Douglas ballots (William Cook, Joel Parker and Theodore Runyon) were the top three vote-getters in the state, receiving about 63,000 votes each. Next came four of the Republican electors (Joseph C. Hornblower, Edward W. Ivins, George H. Brown and Charles E. Elmer), who received vote totals ranging from 58,346 to 58,316.

After that came the electors who had appeared on the fusion ballots but not on the straight Douglas ballots. They received some 5,000 to 6,000 fewer votes than Cook, Parker and Runyon, and from 294 to just over 2,000 fewer votes than the successful Republicans:

Peter D. Vroom (Breckinridge) 58,022
Edmund Brewer (Bell) 57,770
Silas Condict (Bell) 57,552
Alexander Wurts (Breckinridge) 56,237

The pro-Douglas electors who did not appear on the fusion ballots received only about 5,000 votes each:

Abraham W. Nash (Douglas) 6,105
Moses Wills (Douglas) 4,856
Joseph Vliet (Douglas) 4,891
Daniel S. Anderson (Douglas) 1,392

Dead Meat

Roy Franklin Nichols relates that by mid-1860 James Buchanan's detractors held him in such low esteem that they were referring to "Old Buck" as "Old Venison."

Contemporary politicos should be so creative.

Is West Virginia Unconstitutional?

In matters relating to secession and the Civil War, I'm generally a Union guy. But the fact remains that in analyzing the issues, sometimes the Union position just doesn't wash. You have to take your historical facts as you find them and take an honest look at the arguments.

It's hard, for example, to disagree with the late David M. Currie's conclusion that the establishment of the State of West Virginia was plainly unconstitutional. Article IV, Section 3 of the Constitution provided (and still provides) in relevant part:

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

In a nutshell, when the state of Virginia voted to secede, loyal citizens in the northwestern part of the state elected delegates to a convention, which met in Wheeling in June 1861. The convention declared the chief state offices of the state vacant by reason of treasonable behavior of the incumbents and replaced them. It also redefined a quorum of the Virginia legislature as a majority of those members who took an oath to support the federal Constitution, ordered a referendum of the question whether a new state should be formed, and provided for the election of delegates to a constitutional convention.

The voters endorsed the creation of a new state, the constitutional convention drafted a constitution, and the voters endorsed it. The new "Virginia" legislature (using the quorum trick) then "consented" to the formation of a new state from Virginia and petitioned for its admission.

Did the state of Virginia grant its "Consent" to the creation of the new state? Only 38 of Virginia's 160 or so counties were represented in the new legislature. Kentucky Senators Lazarus W. Powell and John J. Crittenden and others argued at the time that the answer was plainly "no." In Senator Crittenden's words, "[H]ere is an applicaton to make a new State at the instance of the parties desiring to be made a new State, and nobody else consenting . . . . It is the party applying for admission consenting to the admission."

Professor Currie concludes that "[t]hese arguments seem to me quite irrefutable."

I think opponents of the West Virginia bill were right that the self-styled "Virginia" legislature was a farce and a sham, but the new state was admitted anyway. I suspect you're no more surprised than I am.

It goes without saying that I strongly urge anyone interested in the topic to read Professor Currie's far more thorough and subtle analysis in its entirety. It appears at pages 1201-1210 of the article linked above.

"I think she was more material"

During the Buchanan administration, Horace H. Day, a rubber manufacturer, was particularly resourceful when it came to entertaining Congressmen in Washington. According to Roy Franklin Nichols,

Mr. Day retained the services of two spiritualists, a Mrs. Gould and Mrs. Sarah H. Whitman of Providence, described as "an authoress of some celebrity." A Mrs. Stone, wife of one of Day's clerks, also was active "moving with members." A witness later testified, when asked if Mrs. Stone were a spiritualist, "I think not -- I think she was more material."

"So all these people . . . don't seem to know the basics of the history of the Civil War"

I haven't linked to Ann Althouse in a long time: "22% of Americans 'believe any state or religion has the right to peaceably secede and become an independent republic.'"

Ann -- er, Professor Althouse, comments: "So all these people have the law wrong and don't seem to know the basics of the history of the Civil War."

"He was a valiant trencherman"

Roy Franklin Nichols’s specialty is the brief, barbed sketch of political worthies, sometimes highlighted by alliteration. A few samples follow.

On James Buchanan:

His visitors [after he won the election of 1856] found him either at Wheatland [his estate outside Lancaster, PA] or at Michael’s [a restaurant in Lancaster]. Many of them he invited to his table, which was a mighty one, for he was a valiant trencherman. Nor was he loath to lead the way to the sideboard where decanters and bottles of varying potencies stood in bold array. He relished their contents and was never affected thereby, so hard a head had he.

On William Bigler:

The third Pennsylvanian in the group was Senator William Bigler, from the center of the state. He was a plain, plodding politician who in certain characteristics, such as dullness, ponderosity and dogged industry, resembled Buchanan.

On Lewis Cass:

The rub [in considering Cass for Secretary of State] was that Buchanan and Cass never had “got along”; Cass was aged, inefficient and was a British-baiter. How could Buchanan settle British difficulties with this obese, almost senile, Anglophobe in his cabinet?

* * *

[After he became Secretary of State,] Buchanan’s premier was worse than useless. At seventy-four senility was creeping up on the obese, indolent Lewis Cass. He was liable to attacks of vertigo and was unable to do effective, concentrated work. Whatever wisdom he had gained from his long political experience had not sufficed to save his Michigan constituency for him. Now, he was a constant trial as an advisor, because he could not make up his mind and was glad to be made the mouthpiece of others.

On John B. Floyd:

John Buchanan Floyd, Secretary of War, . . . came of excellent family, his father having been governor [of Virginia] before him . . .. He was remarkable in nothing else. He was not particularly intelligent, energetic, efficient, or interested. He was expansive and easy-going and was a poor administrator. He could be persuaded to participate in questionable practices, though not to his own advantage.

On Fernando Wood:

Fernando Wood had been elected mayor [of New York City] in 1854 as a reformer and apostle of good government. Safely in office, he had advanced quickly to a point where he was teaching corruption to corruptionists. He had produced an organization capable of dealing with barroom loafers, Hell’s Kitchen thugs, panderers to vice, and anyone tough enough to bully votes.

And Now for Something Completely Different

I am just beginning to explore TED. For a taste, take the time to watch this extraordinary lecture:

"His Creole wife preferred to keep the Atlantic between them"

I'm excited. I have picked up a succession of mediocre books, some of which I haven't finished, and one of which I won't finish. (This does not include Brian Burton, Brett.)

Today, however, I received, on Sean Nalty's recommendation, Roy Franklin Nichols's The Disruption of American Democracy and snuck in a chapter at work. I don't know yet whether it will contain great insights. Perhaps I will violently disagree with it -- the dedication "To The Memory of William A. Dunning" makes me queasy.

The prose, however, is just superb. Consider this brief description of Judah Benjamin:

[John] Slidell's colleague from Louisiana, Judah P. Benjamin, a Sephardic Jew, was smooth and urbane, his countenance suffused with a perpetual smile. He possessed a superior intelligence, but he was just as opportunistic and just as lustful for power and place. His Creole wife preferred to keep the Atlantic between them and dwelt in Paris, confining her connubial responsibilities to whatever favors she would grant him during his occasional summer visits to the French capital.

Who can resist writing like that?

"Those People"

Has anyone noticed that Robert E. Lee always refers to Union forces in conversation as "those people"? He never refers to them as "those Yankees" or "those Northerners." It's always "those people." Is it just an idiosyncracy, or was it some southern thing? Is it meant to be demeaning? I've always found it jarring.

I spotted this tendency some time ago, but I've never cataloged it. Well, you've got to start somewhere. Brian Burton has a chapter title that incorporates the phrase: "How Are We to Get at Those People?" Let's start there. Here's the scene:

On June 16, [1862,] after [Lee] told Stonewall Jackson to bring the Valley veterans to Richmond, he rode to the Chickahominy River with his military secretary, Col. Armistead L. Long. Lee, looking over the northern bank of the river, mused, "Now, Colonel Long. how are we to get at those people?" Long kept quiet, for he knew Lee well enough to know that the question was rhetorical.

I couldn't resist the illustration, even though its relevance is slight. It's entitled "Grant turning Lee's flank." Nineteenth Century humor often doesn't translate well, but that's just wonderful.

George McClellan, Whining Jerk

I'm sorry. George Brinton McClellan just makes my blood boil. It isn't so much what he does or doesn't do. It's the fact that he's a jerk, and an insubordinate one at that. Alternately a blowhard and, when thing's don't go right, a whining loser whose immediate reaction is to blame everyone but himself. Consider this June 25, 1862 telegram to Secretary of War Edwin M. Stanton:

I regret my great inferiority in numbers but feel that I am in no way responsible for it as I have not failed to represent repeatedly the necessity of reinforcements, that this was the decisive point, & that all the available means of the Govt should be concentrated here. I will do all that a General can do with the splendid Army I have the honor to command & if it is destroyed by overwhelming numbers can at least die with it & share its fate.

But if the result of the action which will probably occur tomorrow or within a short time is a disaster the responsibility cannot be thrown on my shoulders -- it must rest where it belongs. . . .

Assume, for the sake of argument, that McClellan's fantasies about relative numbers were correct. Assume further that Lincoln was dead wrong not to send every man east of the Appalachians to the Peninsula. Even so, can someone explain to me, please, why the man who dictated those words shouldn't have been fired on the spot?

Spreading the Word: A Contest

At TOCWOC, Brett Schulte is sponsoring a contest, and asks others to spread the word, so here goes: Win a Free Copy of Roll Call to Destiny. You have until August 15.

Thanks, Brett!

Some time ago, Brett Schulte reviewed and recommended Russel Beatie's volume on the beginning of the Peninsula Campaign. I told Brett that I doubted I had the stamina or the interest to read 700 pages covering a 90-day period, which did not even get me to Seven Pines. I confessed, however, that the only book on the Peninsula Campaign that I had read was Stephen Sears's To the Gates of Richmond, which was highly critical of McClellan. I inferred from Dimitri's heated but cryptic posts that there were other points of view, particularly regarding troop numbers. Did Brett have a recommendation on another book on the Campaign?

In response, Brett was kind enough to recommend Brian K. Burton's Extraordinary Circumstances: The Seven Days Battles, which I finally got around to ordering and received on Thursday.

Although I have only just cracked the book, this is clearly a well-done work. I could not resist turning first to the book's Appendix A, entitled "Union and Confederate Troop Strengths," which is alone worth the price of admission.

However, Burton's conclusion -- that "the two armies were very close in effective strength," perhaps within 1,000 men -- does not absolve McClellan. Burton himself concludes that responsibility for the ridiculously inflated estimates of Confederate troop strength produced by Pinkerton lies with McClellan:

The first substantial overestimate of Confederate numbers occurred in early August 1861 and was McClellan's alone. Pinkerton's first strength report, while an overestimate, was not as high as McClellan's, and Little Mac then told Pinkerton to make his estimates high. Moreover, as Pinkerton improved his estimates of the number of rebel regiments -- to the point where he was only 20 percent or so off -- he stopped using regiments to estimate strength and instead resorted to irrational methods.

Burton tentatively concludes "that McClellan believed his own numbers, there was no attempt to deceive people in Washington." However, that only convicts McClellan of stupidity at best and moral cowardice at worst.

I will read with interest Burton's take on McClellan's decision to board the Galena on June 30. Stephen Sears's withering criticism has stuck with me: "The truth of the matter is that George McClellan had lost the courage to command." We shall see. In the meantime, thanks, Brett, for a great lead!

"Dog's Misery"

Here's one I hadn't heard before:

The Federalists did what they could to stave off defeat. They painted Jefferson as a debauched Francophile; Americans heard that he had fathered mulatto children, prayed to the French goddess of reason, and even experimented on animals at Monticello, or "Dog's Misery," as some called it.

Peter Zavodnyik, The Age of Strict Construction: A History of the Growth of Federal Power, 1789-1861 (emphasis added).

Kansas-Nebraska 5: Douglas Casts the Die

Stephen A. Douglas planned to formally introduce the territory bill and begin debate on Monday January 23. But before he did so, he needed to get President Pierce on board.

To accomplish this, he arranged for a horde of senior legislators to descend on the weak-willed president on Sunday January 22, when he was alone. I have previously described aspects of this meeting in another post. For present purposes, the important point is that Douglas and his cohorts got the president write out, in his own hand, a statement that the Missouri Compromise “was superseded by the principles of the legislation of 1850, commonly called the compromise measures and is hereby declared inoperative and void.”

Douglas was now armed with the president’s endorsement. On Monday January 23, 1854, Douglas reported the bill in a dramatically revised form. Those of you who have been wondering when Kansas would make its appearance need wonder no longer. The new version proposed to create two new territories (Kansas and Nebraska) rather than one; the southern boundary of Kansas territory was shifted north from 36° 30’ to the thirty-seventh parallel, so as to avoid dividing lands of the Cherokee nation.

For our purposes, however, the key changes were those relating to the Missouri Compromise. You will recall that Douglas’s original January 4, 1854 bill included a Section 14 that provided that the Constitution and all laws of the United States would have the same force and effect in the Territory of Nebraska as elsewhere within the United States. The Missouri Compromise was not excepted.

Sections 14 (applicable to Nebraska) and 34 (applicable to Kansas) of the new bill now carved out Section 8 of the Missouri Compromise, using language similar to the text that Douglas had the president write out by hand the day before:

Sec. 14. And be it further enacted, . . . That the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said Territory of Nebraska [“Kansas” in Section 34] as elsewhere within the United States, except the eighth section of the act preparatory to the admission of Missouri into the Union, approved March sixth, eighteen hundred and twenty, which was superseded by the principles of the legislation of eighteen hundred and fifty, commonly called the Compromise Measures, and is hereby declared inoperative.

In addition, the new bill omitted the now-unnecessary Section 21 of the original bill (the “clerical error” section).

It is worth noting how gingerly Section 14 treated the 1820 Compromise. Rep. Phillips’s proposed language had declared the Compromise “inoperative, void and of no force and effect.” The statement that Douglas had Pierce write out declared the Compromise "inoperative and void." Douglas's January 23 amendment proposed to declare Section 8 “superseded” and “inoperative.” Silly as it seems, it's as if Douglas thought that fewer people would be offended if he used tender wording, even though it was a distinction without a difference. Nonetheless, however gentle the wording, it was clear that Douglas was proposing, in effect, to repeal Section 8. The die was cast.

Kansas-Nebraska 4: "It will raise a hell of a storm"

The last post on the topic ended with a question (or two). Why was the addition of Section 21 to Douglas’s Nebraska bill – which granted to the territorial legislature the power to legislate in favor of slavery – not sufficient? Why did it ultimately prove necessary expressly to repeal Section 8 of the Missouri Compromise?

The answer requires us to take a practical look at the expected situation on the ground. Section 21 permitted the territorial legislature to legalize slavery. But unless and until the territorial legislature did so, Section 8 made slavery illegal in the territory. So long as Section 8 remained in force, it was expected (reasonably so, I think) that slaveholders would not move there. And if slaveholders did not move to the territory, they would not qualify as residents able to vote for pro-slavery legislators. As David Potter has explained:

[U]nless the Act of 1820 were repealed outright, it would still exclude slaves until the territorial government arrived at a decision to let them in -- which such a government could never be expected to do if no slave interest had been permitted to establish itself in the first place.

Put differently, so long as non-slavery was the preexisting default condition, slavery had no chance of establishing itself in the territory. For slavery to have any chance, it had to be clear from the outset that slavery was not illegal in the territory.

Perceptive southerners recognized this, and they acted on it. The first to make a move was Archibald Dixon, a Whig senator from Kentucky. On Monday January 16, 1854, Senator Dixon announced his intention to offer an amendment that would, in effect, repeal the offending Section 8:

Mr. DIXON stated to the Senate, that when a bill to establish a territorial government in the Territory of Nebraska should come up for consideration, he should offer the following amendment:

Sec. 22. And be it further enacted, That so much of the 8th section of an act approved March 6, 1820, entitled “An act to authorize the people of the Missouri Territory to form a constitution and State government, and for the admission of such state into the Union on an equal footing with the original states, and to prohibit slavery in certain territories,” as declares ”That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the state, contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited,” shall not be so construed as to apply to the Territory contemplated by this act, or in any other Territory of the United States; but that the citizens of the several States or Territories shall be at liberty to take and hold their slaves within any of the Territories of the United States, or of the States to be formed therefrom, as if the said act, entitled as aforesaid, and approved as aforesaid, had never been passed.

Senator Dixon’s proposed amendment gave rise to a fairly well-known story, which I’ll tell anyway. Douglas apparently immediately approached Dixon to object to his amendment. Perhaps Douglas was struggling to avoid any specific mention of the Missouri Compromise in his bill. There is also some suggestion that Douglas interpreted the closing clause of the amendment (“the citizens . . . shall be at liberty to take and hold their slaves”) as affirmatively requiring or mandating slavery within the territory.

At all events, two days later (Wednesday January 18, 1854) the two senators went for a carriage ride so that they could discuss the matter confidentially and without interruption. Dixon explained why he believed explicit repeal was necessary. Forty-fout years later, Susan Bullitt Dixon, Senator Dixon's widow, published an account that appears to be the source for what supposedly transpired next during that ride. (Unfortunately, the book is not freely available on Google Books. It has been reprinted recently and may still be in copyright. This 1899 New York Times book review is amusing and appalling.) However, David Potter provides a vivid summary:

Douglas showed that he was reluctant to accept Dixon’s plan, but he responded to Dixon’s logic, and after considerable discussion he at last exclaimed impulsively, “By God, Sir, you are right. I will incorporate it in my bill, though I know it will raise a hell of a storm.”

Meanwhile an Alabama Congressman, Philip Phillips, a Democrat on the House Territories Committee, arrived at the same conclusion that Dixon had. Phillips met with Douglas to explain his concerns. At Douglas’s request, Phillips drafted a proposed amendment for Douglas’s consideration:

That the people of the Territory through their Territorial legislature may legislate upon the subject of slavery in any manner they may think proper not inconsistent with the Constitution of the United States, and all laws or parts of laws inconsistent with this authority or right shall, from and after the passage of this act, become inoperative, void and of no force and effect.

Robert Johannsen’s comment that Rep. Phillips’s proposed amendment “was less strongly worded” than Senator Dixon’s is an understatement. Indeed, it is surprising that the so-called F Street Mess, a quartet of powerful southern Senators who lived in the same house in Washington (David R. Atchison of Missouri; James M. Mason and Robert M. T. Hunter of Virginia; and Andrew Butler of South Carolina), found it acceptable. While it is certainly possible to conclude that it declared Section 8 void, it is also possible to read the language as voiding Section 8 only to the extent that it barred the legislature from "legislat[ing] upon the subject of slavery." I would have wanted clearer language if I had been in their shoes.

Two Law Review Articles

This is more a note to myself than anything else. Two new articles to read:

Kurt Lash tackles the Eleventh Amendment.

Bryan Wildenthal revisits the original understanding of the Fourteenth Amendment.

Thanks, obviously to Professor Lawrence Solum for the leads.

Kansas-Nebraska 3: The "Clerical Error"

Senator Stephen Douglas’s Nebraska bill, as originally introduced on January 4, 1854, contained twenty sections. As we have seen, it did not mention, much less repeal, Section 8 of the Missouri Compromise. It was ambiguous on the point whether the territorial legislature could enact laws legalizing slavery.

On January 10, 1854, the bill was reprinted with an additional section that had supposedly been omitted from the original draft because of a “clerical error.” The new section – Section 21 – provided:

And be it further enacted, That, in order to avoid all misconstruction, it is hereby declared to be the true intent and meaning of this act, so far as the question of slavery is concerned, to carry into practical operation the following propositions and principles, established by the Compromise measures of one thousand eight hundred and fifty, to wit:

First. That all questions pertaining to slavery in the Territories, and in the new States to be formed therefrom, are to be left to the decision of the people residing therein, through their appropriate representatives.

Second. That “all cases involving title to slaves” and “questions of personal freedom” are referred to the adjudication of the local tribunals, with the right of appeal to the Supreme Court of the United States.

Third. That the provisions of the constitution and laws of the United States, in respect to fugitives from service, are to be carried into faithful execution in all the “organized Territories” the same as in the States.

Historians have tended to be suspicious of the assertion that Section 21 was originally omitted due to clerical error. However, the degree of suspicion has varied somewhat. Robert Johannsen observed, somewhat obscurely, that

[t]he new section was clearly not a part of the original bill, but whether it was indeed a “clerical error” or whether it was added as an afterthought it is not possible to determine.

David Potter more clearly rejects the “clerical error” claim:

On the manuscript of the bill, the additional section was added separately, which suggests that the “omission” in the first printing may have been more than a “clerical error.”

In large part, the historians’ views of the “clerical error” issue turn on their understanding of the original bill, without the additional Section 21. As I have previously discussed, Johannsen believes that the original bill granted the territorial legislature the power to legislate in favor of slavery. Therefore, Section 21 added only “emphasis:”

Douglas contended that the copyist had inadvertently omitted the section from the version that was submitted to the Senate. In any case, it did not alter the nature of the bill, although some later commentators have argued (unpersuasively) that the added section gave the bill “an entirely new meaning.” Section twenty-one merely repeated the points made in Douglas’ report and recapitulated provisions that were already in the bill. In doing so it gave them added emphasis.

David Potter, on the other hand, believes that the original bill did not grant the territorial legislature power to legalize slavery. He therefore regards the new section as a dramatic difference. Citing evidence that Senator David R. Atchison of Missouri and others “applied strong, and perhaps even harsh, pressure on this point,” Potter sees the new section as Douglas’s “curious way” of "meeting the objection.”

However one views these issues, it does seem clear that Section 21 did the trick. Whether or not the original bill gave the territorial legislature power to legalize slavery, Section 21 did. The legislature was plainly authorized to address “all questions pertaining to slavery.”

Why was that not enough? Why did it ultimately prove necessary expressly to repeal Section 8? It is to this issue we turn next.

Kansas-Nebraska 2: Ambiguities and Uncertainties in the Original Bill

It is fascinating to see that, to this day, it is not clear what the effect of Senator Douglas's original Nebraska bill would have been. In particular, would it have permitted the territorial legislature, when seated, to pass a law legalizing slavery and enacting a slave code?

On the one hand, Section 6 suggested an affirmative answer, for it granted the territorial legislature the power to legislate concerning “all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act.” Legislation concerning slavery was not excepted.

On the other hand, the original bill did not even mention, much less declare void, Section 8 of the Missouri Compromise. Arguably, Section 8 remained good law. As a “law[] of the United States which [was] not locally inapplicable,” Section 8 would “have the same force and effect within the said Territory of Nebraska as elsewhere within the United States.” In that case, slavery remained “forever prohibited” in the territory, and the territorial legislature did not have the power to declare otherwise.

The contrasting arguments are nicely reflected in the divergent views of two historians who have discussed the original bill. Robert Johannsen holds the view that the original bill permitted the territorial legislature to legalize slavery (emphasis added):

Douglas’ [original] bill established popular sovereignty in the proposed territory, while skirting the problem of the Missouri Compromise. The territorial legislature presumably would have the power to legislate with regard to slavery, and the people of the territory would be free to enter the Union “with or without slavery.” The Missouri Compromise was neither repealed nor abrogated; it was simply ignored. Like Mexican law in the southwest, the Missouri Compromise would remain in effect in Nebraska until superseded by territorial legislation . . ..

David Potter, on the other hand, is of the view that the original bill did not authorize the territorial legislature to legalize slavery. He endorses as “quite correct[]” the criticism leveled by southerners at the time

that the Act of 1820 still applied; the [original] bill only allowed the people of a territory to adopt a proslavery constitution when they were admitted to statehood; while they were a territory, the Act of 1820 would still remain in force. In short, Douglas’s [original] bill would create a situation under which, at the time of admission for statehood, slaveholders might vote for a proslavery constitution, but also under which no such slaveholders could establish themselves in the territory prior to this vote.

Both Johannsen and Potter agree that, whatever Douglas’s intent, he was clearly trying to get away with the minimum and to avoid open repeal. Johannsen refers with approval William Seward’s comment that “Douglas had gone ‘as far as the Democrats dare, toward abolishing that provision of the Missouri Compromise which devoted [the area] . . . to freedom.’”

Potter sums up the point wonderfully, as follows (emphasis added):

The bill of January 4 said nothing about the Missouri Compromise or about the status of slavery in the territory. Whether Douglas intended it to be silent repeal of the Act of 1820, as many historians [but not Potter?] have assumed, or a subtle device to placate the southerners by making them think he had abandoned the Act of 1820 without actually abandoning it, as has been contended, is not entirely clear. It is, on the other hand, quite clear that he was offering the least concession which, he hoped, might win southern support.