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

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

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

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

It took two years, but in May 1839 the states struck a deal by which one of the four defendants – Edward Prigg – was returned to Pennsylvania, to be tried under special procedures that were designed to create a test case “to settle . . . the power of state legislation over” the Fugitive Slave Clause. Because the states were the real parties in interest, attorneys for the State of Maryland represented Prigg; the attorneys representing Pennsylvania included its Attorney-General. Before the Supreme Court, Mr. Johnson, the Pennsylvania Attorney-General, hailed the agreement as an exemplar of inter-state cooperation:

This proceeding was one of amity, of concord, on the part of Pennsylvania and of Maryland, which were, as the learned counsel had told the court, the real and substantial parties. They came into that court to try a great question of constitutional law, to terminate disputes and contentions which were arising, and had for years arisen, among the border line between them, on this subject of the escape and delivery up of fugitive slaves. Neither party sought the defeat or humiliation of the other. It was for the triumph of law, they presented themselves before the court. They were engaged, under an imperative sense of duty, in the work of peace; and he hoped he would be pardoned, if he added, of patriotism also.

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

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

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

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

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

Seven Years

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

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

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

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

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

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

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

Prigg traveled to York County promptly after his appointment. Presumably, Ashmore and Prigg already knew of Morgan’s whereabouts. In the month of his appointment – February 1837 – Prigg appeared before a justice of the peace of York County, Thomas Henderson, Esq. It seems that Prigg was aware of and initially followed the procedures found in the 1826 Act, for he

made oath that the said negro woman, Margaret Morgan, had fled and escaped from the State of Maryland, owing service or labor for life, under the laws thereof, to the said Margaret Ashmore.

Prigg may have sought the arrest of Morgan’s children, as well as of Morgan herself, because Justice Henderson issued a warrant for “Morgan, and her children.” In accordance with the 1826 statute, the warrant was addressed to a local constable:

[T]he said Thomas Henderson . . . issued his warrant, directed to one William McCleary, then and there being a regularly appointed constable in and for York county, commanding him to take the said negro woman, Margaret Morgan, and her children, and bring them before the said Thomas Henderson, or some other justice of the peace for the said county . . ..

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

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

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

Professor Akhil Amar adds facts that make the story of Margaret Morgan and her children even more appalling than the pale outline provided by the court:

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

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

Having set forth the procedures that masters and their agents were required to follow when seeking to recover fugitive slaves, the 1826 Pennsylvania statute at issue in Prigg also spelled out the consequences for failure to observe its dictates. A person who used force or pretence to seize “any negro or mulatto” and take him or her out of the state to be placed in slavery was guilty of a felony:

If any person or persons shall . . . by force and violence, take and carry away, or cause to be taken or carried away, and shall, by fraud or false pretence, seduce, or cause to be seduced, or shall attempt so to take, carry away or seduce, any negro or mulatto, from any part or parts of this commonwealth, with a design and intention of selling and disposing of, or of causing to be sold, or of keeping or detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall on conviction thereof, in any court of this commonwealth having competent jurisdiction, be deemed guilty of a felony . . ..

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

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

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

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

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

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

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

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

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

The statute did not specify the precise procedures and proofs to be presented at the hearing, except in one remarkable respect:

Provided, that the oath of the owner or owners, or other person interested, shall in no case be received in evidence before the judge, on the hearing of the case.

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

Finally, it is worth pointing out that the statute made clear that state judges were required to follow its procedures exclusively:

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

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

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

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

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

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

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

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

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

The Fugitive Slave Act of 1793 5: Section Three Examined

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

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

Sections 1 and 2 of the 1793 Act concerned the Extradition Clause, rather than the Fugitive Slave Clause. Section 3 provided:

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

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

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

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

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

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

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

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

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

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

Let’s put aside for the moment all the history that accumulated concerning the Fugitive Slave Clause between 1789 and 1860. Just imagine that you’re sitting at home in 1789 reading through the newly-ratified Constitution. You get to Article IV, Section 2 and the Fugitive Slave Clause. You try to puzzle out what it means. You haven’t got James Madison’s notes of the constitutional convention; even if you did, as we’ve seen, they shed no real light. It’s just you and the text. Here’s what you see:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

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

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

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

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

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

The Texas-New Mexico Border: The Committee of Thirteen's Proposal

On April 13, 1850, the Senate appointed a select Committee of Thirteen to consider and report on a compromise proposal. Some three weeks later, the Committee, under the leadership of Henry Clay, was nearing completion of its task. One problem remained: the Committee could not agree on a proposed boundary between the State of Texas and the territory of New Mexico.

The boundary that the Committee ultimately recommended was based on a proposal made by Texas Senator Thomas Jefferson Rusk. Mark J. Stegmaier tells the story:

On the evening of May 6, Rusk conversed with [Georgia Senator John M.] Berrien and then wrote out various suggestions. . . . Rusk's other suggestion was the boundary should run from the Rio Grande northeastward "to the point where the 100th degree of west Longitude crosses the Red River" . . .. The process by which a majority of the committee quickly approved of Rusk's line is unknown; nonetheless, it became part of the committee's plan for a line from El Paso northward on the Rio Grande for twenty miles and from that point northeast to the intersection of the Red River and 100 degrees west longitude.

The Fugitive Slave Act of 1793 3: The Act Passes

Before examining the text of the Fugitive Slave Act of 1793, I thought we’d take a brief look at what prompted it. The First Congress had not considered the matter sufficiently important to legislate on. What prompted the Second Congress, at the end of its life, to conclude that a statute was necessary?

The answer is, Not much. Don Fehrenbacher tells the basic story:

No outbreak of fugitive activity had inspired a slaveholders’ demand for legislation. The act of 1793 resulted instead from a quarrel between Pennsylvania and Virginia over criminal extradition. But since fugitives from justice and fugitives from service had been dealt with side by side in the Constitution [in Article IV, Section 2], it seemed logical to do so again in implemental legislation. And so Congress passed “An respecting fugitives from justice, and persons escaping from the service of their masters.”

Fifty years later, the antiquity of the statute loomed as a large obstacle to the attorneys for the State of Pennsylvania, who were trying to establish its unconstitutionality in Prigg. The Act had, after all, been passed in the hallowed early days of the Republic by a Congress that included a number of Framers who presumably were well aware of the original understanding concerning the Clause.

In order to alter this perception, one of the Pennsylvania attorneys, Mr. Johnson, provided a more detailed history, designed to suggest that the fugitive slave sections of the act were little more than an afterthought, not carefully considered and crafted provisions. I can’t vouch for the accuracy of Johnson’s assertions; on the other hand, the fact that opposing counsel did not challenge his description of events gives some confidence. I have added paragraph breaks to the following quote for readability:

In the year 1791, the governor of Pennsylvania made a demand on the governor of Virginia, for the surrender of three persons charged with kidnapping free negro. After taking the advice of the attorney-general of that state [Virginia], the governor refused to comply, on the ground, that although the constitution made it obligatory on him to surrender up fugitives from justice, yet as there was no act of congress directing the mode in which it should be done, he could not and would not yield to the demand.

The governor of Pennsylvania submitted the question to President Washington, who after consulting the attorney-general of the United States, brought the whole matter to the notice of congress. See 1 American State Papers, Miscellaneous, 38-9. That body referred the subject to a committee; a bill was reported, substantially the act of 1793. It lay upon the table for a considerable period, and finally passed and became a law on the 12th February 1793.

It is to be observed, that the only question submitted, was the one touching fugitives from justice – not fugitive slaves. The two subjects were comprehended by congress in one bill, and the northern states were constrained to agree to the provision relative to fugitive slaves, for the purpose of procuring the passage of a law providing for the case of fugitives from justice.

The bill passed the Senate without recorded debate. The House passed the bill by a vote of 48 to 7. The ayes included Elias Boudinot of New Jersey and, ironically, Elbridge Gerry of Massachusetts, both of whom we met in a prior installment. The nays, for the record, were Samuel Livermore of New Hampshire, John Francis Mercer of Maryland, Nathaniel Niles of Vermont, Josiah Parker of Virginia, Jonathan Sturges of Connecticut, George Thatcher of the Maine district of Massachusetts and Thomas Tredwell of upstate New York.

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