Slavery in the United States of America : its national recognition and relations, from the establishment of the confederacy to the present time : a word to the North and the South.

Front matter

SLAVEEY

IN THE

UNITED STATES OF AMERICA;

Preface

no temporary doctrine taken up on particular occasions, to answer particular purposes. It . is involved in no metaphysical doubts and intricacies, but is clear, precise, and determinate. It is recorded in all our Law books. It is written in the great Volume of JNature."

In this country, there are those who say with General Walkei*, in his letter of resignation, addressed to Secretary Cass, — " The Constitution is not Sovereign because it is created by Sovereignty. With us Sovereignty rests exclusively witli the people of each State. — The National Government is not Sovereign, much less any department of that Government, for the same reason."

And again, there are those whose views are expressed by General Lane, in a letter from the Territory of Kansas, January, 1858, wherein he says — "I suppose you know that the feeling here is strong against any Congressional Enabling Act. We want no interference with our affairs by Congress ; feeling that we are fully competent to settle these matters ourselves. We want to be let alone."

And again, there are others still, who cherish the sentiinent of Lord Chatham. Now, exclusively of all partizan feeling on the subject, it is evident that the doctrine enunciated by the latter, is directly at variance with that maintained by either of the other class of thinkers. . Yet it contains that great principle of freedom, the violation of which caused' the Revolution of 1688, in England, whose results were the overthrow of the doctrine of the Divine Right of Kings, the recognition of the people as a source ' of Sovereignty in the Slate, and the establishment of the Crown on the heads, and the succession in the line, of

PREFACE.

vii

William and Mary, Prince and Princess of Orange, by act of Parliament, by Law, in 1690. In other words, it gave birth to the Free Constitution of Great Britain, to which the Earl of Chatham refers.

Just one century after this, the American Revolution inaugurated the greater triumph of the same principle of Freedom, in the establishment of a freer Government and Sovereignty, called the United States of America, under a freer Constitution, which was finally ratified by all of the States in 1790.

Both of these Constitutions were founded upon the principle that there can be no allegiance where there is no Sovereignty. And that whe: there is Sovereignty, there must of necessity be allegiance. If then " with us. Sovereignty rests exclusively with the people of each State," where rests allegiance ? Does the State owe allegiance to the people, or do the people owe allegiance to the State ? Do the people owe allegiance to the Constitution, or the Constitution to the people ? Or do the people, in their exclusive Sovereignty, owe allegiance only to themselves ?

With us, there is a National Sovereignty, and there is also a State Sovereignty. There are State Constitutions which limit both Sovereignty and Allegiance in the State ; Anct there is a National Constitution which limits' both ^Sovereignty and Allegiance in the United States. Each has its particular, appropriate, and necessary sphere of action. Either may claim and enforce the particular, appropriatf^, and necessary Allegiance which is its due.^ With us there are no Territorial Constitutions.

Allegi uice in a State, is submission to the Supreme viii

PREFACE.

power of the State within the limits of its jurisdiction. Allegiance in a Nation composed of Confederated States, and dependent Territories, is submission to the Supreme power of the , National Sovereignty within the sphere of its jurisdiction. . In either case, both Sovereignty and Allegiance pre limited by the Constitution, and by the Constitution only. In either case, it is not for the people to disclaim or withold their allegiance because, perchance, they were parties to the Compact which limits and defines the Sovereignty. With us, even the States in their Sovereign capacity owe a certain allegiance to the National Supremacy, which allegiance is also limited by the Constitution. It is not in the power, therefore, of the people of a single State to throw oflP the allegiance due from the State to the National Sovereignty, without destroying the Sovereignty of the State itself. Nor is it in the power of the people of any one of the States to throw oflf their allegiance to its Sovereignty without abrogating the State Constitution. With us, so far is Sovereignty from resting " exclusively with the people of each State," so restrained are they by the National Sovereignty, that they cannot change their own State Government from a Republican to a Monarchical, or to any other form. Hence it is absurd, nay more it is revolutionary, to say that because the people united in creating the National Sovereignty, therefore it is not Sovereign.

Much less are the people Sovereign in the Territory, or Territories, belonging to the National Sovereignty, called the United States/ The veiy idea of ownership involves the idea of Sovereign jurisdiction, which also includes the

PREFACE.

ix idea of allegiance. This Sovereignty and allegiance may indeed be qualified, or lin^ited, by an enactment of the General Sovereignty establishing a local Territorial Government, but neither is thereby extinguished, nor is the authority thereby delegated to the people, or to the Territorial Government, made exclusive : Nor does it give the people inhabiting therein a right tq a higher state of political existence. The transfer from a Territorial to a State Organization involves a declaration of independence on the part of the Territory, or a relinquishment t)f its Supremacy over it on the part of the National Sovereignty. It proposes a condition of political existence which cannot be created without depriving the National Sovereignty of a part at least of its Supremacy. Not only so, but, with us, it also places the New Organizatioa in the relations and position of a co-partner in the Sovereignty existing in the National Confederacy.

And has the National Sovereignty no interest in this political transformation ? May it not say whether at all, or upon what terms, or subject to what conditions, it will consent to this new creation? Consent to relinquish its own Supremacy over its own Territory ? And admit the New State, thus created, into the great Federal Copartnership?

The People of the United States, the source of Sovereignty with us, have said. Constitution, Abtiole VL, Sec. 2, — This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all Treaties made, or which shall be made under the authorityof the United States, shall be the Supreme Law of the prefAck.

land : and the Judges of every State, shall be bouncl thereby, anything in the Gonstitution and laws of any State, to the contrary notwithstanding."

We may look in vain for a better exposition of Sover eignty in the Government of the United States than ie here found. Supremacy to' govern is Sovereignty. The Constitution is not Sovereignty, it is the Charter of Sovereignty. It is not law except in the sense of its Supremacy. Nor yet is it Supreme by itself alone, biit also in the laws made in pursuance of its provisions, and in the Treaties made under the authority which it establishes. Law is not. the act, but the voice of Sovereignty. The Constitution does not act; the Law does not act; Treaties do not actbut it is the Officers of the Government in their various departments who perform its behests. They act, and acf. with all the power and might of the Sovereignty whose laws they enforce, whose mandates they execute, whose voice directs their duties. It is immaterial how this Supreme power originates, or how it exists, so long as it is legitimate. While it exists, its powers are Sovereign within the sphere of its jurisdiction. This is limited hy the Gonstitution only, and cannot be infringed or repudiated, either by the States, or by the people of the States, ot Territories, so long as the Constitution is maintained in.its integrity.

The Sovereignty of the Crown of Great Britain, established under the English Constitution by the Revolution of 1688, was called a Popular Sovereignty, not because it -.recognized the Supremacy of the popular will, but becaiise it conceded that the people were one of the sources of its

PREFACE.

xi

Sovereignty. The Constitution of the United Statesestablished a freer and still more Popular Sovereignty, in that it recognized the People as the only source of its Supremacy. Popular Sovereignty does not mean the "exclusive Sovereignty of the People;" or a Sovereignty exclusive of Constitutions and Laws; but a Sovereignty, whether State or National, established under a Constitution formed by the people, acting freely, and without any extraneous or arbitrary compulsion or restraint. The Constitution thus established by the people is the Charter of Supremacy to the government, in every Popular Sovereignty. A State Sovereignty is called a Popular Sovereignty because in it both Sovereignty and Allegiance are limited by a Constitution created by the free voice of the people. So also is the National Sovereignty of the United States called a Popular Sovereignty, for the same reason. A Popular Territorial Sovereignty is an absurdity. The very terms are contradictory and antagonistic Territorial is colonial; it implies dependence, and sovereign dependence is a political absurdity.

The people inhabiting in a dependent Territory, therefore, must necessarily be subject to the Sovereignty upon which they depend. The Sovereignty acquired under the Constitution is supreme. The Sovereignty acquired by the cession of Territory is supreme. The Sovereignty acquired by the purchase of Territory is also supreme; and if there be any greater supremacy in Sovereignty, it certainly must be that title to supremacy which is acquired by conquest. In all these modes of acquisition the exclu- . sive supremacy of the National Government in its Terrixii

PREFACE.

torial domain, thus expanded, cannot be questioned. It is above and beyond all doubt and peradventure. And although, with us, by general consent as well as by special compact, the Constitution has been adopted and referred to as limiting the exercise of thisSupremacy in our Federal and State relations, still the Supremacy of the National Sovereignty in its own Territorial domain is not thereby depreciated or destroyed. It may indeed delegate a portion of its authority to the people, by the establishment of a local Territorial government, but it does not thereby relinquish its own Supremacy, or release the people inhabiting therein from their allegiance to it, or render them independent of its superior Sovereignty. It may, at will, repeal the Act conferring those powers, and resume its exclusive jurisdiction over them. Hence there is, there can be, no inherent right in the people inhabiting in such Territory to form a government for themselves, independently of the National Sovereignty. This right, with us, is exclmive only in the people of a State, provided it be Republican and in conformity with their allegiance to the National Sovereignty. The great error of our day is, in claiming that State rights belong to the people inhabiting in the Territories before they become a State. With us, they cannot become a' State Organization without the consent of the Sovereignty on which they depend. They cannot adopt a Constitution for their own government, in anticipation of their transfer from a Territorial to a State Organization, which would be of any validity, or worth, without the assent of the National Sovereignty, or its recognition of it after it is made. Still if the Supreme

PREFACE.

Sovereignty does consent to their transition from a Territorial to a State Organization, it must necessarily consent, nay more it guarantees, that the New Government shall be a Popular one; that is, a Government, or Sovereignty, established under a Constitution framed and adopted by the people who are to be ruled under it, acting freely, and without any hostile compulsion, hindrance, or restraint whatsoever. Any other theory than this would be fatal to the preservation of this Union, without any reference to the question of Slavery.

Thus much I have ventured by way of Preface or introduction to this work, although I may make some repetition of what I have here said in treating of these principles in their bearing upon Slavery in the United States. The whole subject is one which ought to be more carefully pondered over, and clearly understood, by our statesmen and politicians of the present day, as well as by the people in all parts of the country: And if I may hereby contribute towards its elucidation in any degree I shaU not regret having attempted it.

HENRY SHERMAN.

B

Chapter I

Introduction — Slavery in the Original States — ^The Declaration of Independence — The Confederation — The Ordinance of 1787 — The Constitution — ^The Compact of the Confederation and Slavery — The Ordinance of 1787 and Slavery — ^The Ordinance of 1787 and the Constitution — The Constitution and Slavery — The Constitution, the Ordinance of 1787, and Slavery— The Protective Law of 1793--The Constitution and the Protective Law of 1793 — The Constitution, the Protective Law of 1793, and Slavery — The Constitution and the admission of New States — The Constitutional theory of the recognition of Slavery—Eestrictive Acts of Congress from 1794 to 1820 — The purchase of the Louisiana. Territory— Its relations to Slavery — Act distributing* X the Territory— Its restrictions upon Slavery— The Conventio^;".;. with France and Slavery in s£ud Territory— Character of ^^^^ Compact— Act of 1805 in relation to said Territory— The Admis-^P sion of the State of Louisiana— Organization of the Missouri ^ Territory— Admission of Mississippi — ^Alabamar— Ohio— Indiana — Illinois, and Slp,very— The Admission of Louisiana and Slavery — Extent of the Constitutional recognition of Slavery : page 9.

CHAPTER n.

StWEBT OUTjlDE OP THE CONSTITUTION.

Sovereignty under the Confederation — Sovereignty under the Constitution—The Constitutional National Sovereignty— Recognition of Slavery under the Constitution— The National Sovereignty outside

CONTENTS.

of the Constitution — Source of its Supremacy over the New Territory—Admission of New States by it— Its power over Slavery — Application of Missouri for admission into the Union — ^Nature of the application — ^Its history— The Compact for her admission — Its unconstitutionality — ^Its nature and relations to Slavery — The resolution of admission — The Annexation and admissidh of Texas — Nature of the Compact — ^Its unconstitutionality — Its relations to Slavery — The acquisition of foreign Territory from Mexico — ^Its relations to Slavery — The Compromise Measures of 1850 — Their nature and relations to Slavery — The Protective Law of 1850: page 61.

CHAPTER m.

Character of the National Sovereignty of tke United States on the admission of Missouri — The Compact with Missouri — ^Its repeal — The effect upon Slavery — Opinion of the Supreme Court in the Dred Scott Case — ^Its relations to Slavery — ^Rule laid down for the constr^^-ion of the Constitution — Its general applicability — Its relation to the powers of Congress in the New Territory — ^In the admission of New States formed out of it — Over Slavery in said Territory and New States — ^Efffect of the Repeal of the Missouri Compact in 1854 — The enforcement of the Protective Law of

- 1850 — ^Eflfect of the Repeal and the Opinion of the Supreme Court upon Slavery — ^Nature of the Compromise Compacts — Their importance to Slavery — ^Reasons for the Repeal of ^the Missouri Compact applicable to the Compact with Texas — To the Compromise Measures of 1850 — So also of the ruling of the Supreme Court — Source of the Supremacy of the Government over the New Territory defined by it — This Supremacy the basis of the Compromises in relation to Slavery — The Compromises the only reliance of Slavery — ^Importance of good faith in their observance — The further extension and recognition of Slavery — The necessity of concession and conciliation — The Common National standpoint — ^Paramount importance of the Union to the cause of freedom and humanity— Conclusion : page 140.

SliAYEEI IN THE UNITED STATES^

f BOM THE ESTABLISHMENT OF THE CONFEDEBACY TO THE.PEESENT TIME.

CHAPTER I.

SLAVERY UNDER THE CONSTITUTION.

There is, perhaps, no subject which presents itself to the consideration of every citizen of our Republic, at the present day, mth more especial interest ;than the subject of African or Negro Slavery. And there is none which, in its national aspects and relations^ is, generally, so little \mderstood. If, as in the bri^- nal States, its recognition and extension were Btricted to the natural increase of a,n eicistmg slave pi^pulation as the only source of supply, it could hot create any materiail ap{i»rehehsion . But the extension of our national domain and sovereignty beyond its original constitutional limit, by the acqmsilion of foreign territoryj and its liability to be in lik^ maj^i ner ^till farther extended, thus introducing coniinxiaUy within our national jurisdiction an additional

10 SLAVERY IN THB UNITED STATES,

slava population, with its additional source of increase, make it a matter of great and increasing national interest and importance to us all. It iSr. therefore, essential and necessary that the common^

^ and more especially the educated mind should he rightly informed in relation to it, and that the true theory i^d extent of its national recognition and relations should he clearly understood. I propose to consider the subject, in these aspects of it, under two general propositions embraced in the following interrogatories, vizi : —

4? First. How pak is Slavery and the ownership

CP SLAVE PROPERTY RECOGNIZED AND PROTECTED UNDER ;::iHEPROVI^

V Second. What is the oi»gin and the basis op

4TS RECOGNITION AND PROTECTION BEYOND THE CONSTI- TimONAIi LIMIT? ■ -U;

The^ fere qiiestions which address themselves with pecuHar forceio ievery man who loves , our national Union, who is proud of our na^onal character, and who would preserve both in perpetual and happy harioaony with the supremacy of the Federal sovereignty and therights of the individual States ; with the param!ount law of the Constitution and the great interest and clfuins of freedom and humanity every where*

shall endeavor to ahswier them fairly, without feapr or fevor, without prejudice or partiality toward any portion of our country^ and withi^ut any sectarian^

ITS NATIONAL KECQGNITION AND BELATIONS. 1,1 sectional, or partisan aim or bias. I sball treat them as political 'questions merely, without any reference to Slavery as a question of morals, or of religion, and without expressing or meaning to intimate any opinion as to the right or the wrong of holding hnman beings in bondage.

I premise, then, that The Declabation op Inde- PENDENOB was a political manifesto enunciating certain political rights, claimed to be inherent in the American Colonies of Great Britain under the British Constitution, of which they were wrongfully deprived by the government of the parent State, the deprivation of which justified them in breaking away fro their allegiance to it and proclaiming theniselv,^^ independent of its sovereignty. It was a compa% under and by virtue of which the Colonies mutuaUyl; pledgeJ themselves, each to every other, to assume a position of independence before the world, to iaaintain it at all hazards, and to abide by it forever.

This compact was revolutionary in its origin, its nature, and its aims, and had no specific reference to" piy , other than the revolutionary circumstances which originated and followed it. It was made more specific and permanent by the Compact of the Confederation Trndev which the Colonies leagued together in aiperpetml miany achieved theip. i|]^p6nde?ice,; |uad became OS Vhited States a soferei® power "oii

SL AVERT IN THE UNITED 8TATES,

Whatever may have been the political guarantees, pledges, or stipulations, embraced in the Declaration of Independence, these were superseded by, except so far as they were merged or comprehended in, the Compact of the Confederation. The latter was again qualified by the political compact contained in the Ordinance of 1787, ami wholly superseded by the final compact of the Constitution. .

The Obdinance op 1787 was a compact in relation to the proprietorship and government of certain territory, originally claimed to belong to individual States, and which, for the purpose of securing a 4- more permanent national union, was by them ceded t|f?;io the United States, for the common benefit of such States as should become members of the Federal Alliftnce proposed by the revolutionary Congress in the Articles of Confederation.

The Constitution was a compact between the people of the original States for the establishment of their national unity under a General Sovereignty ^ with specified powers, securing to the people in general and to the States in severalty, all the rights, privileges, fithd immunities, which they had acquired in achieving their independence of the parent power. Among these was the conceded right of property in human flesh and bones, Slavery. Their situation in relation to it was peculiar, and although it w^^ felt to be a strange inheritance yet it was

ITS NATIONAL KECOGNITION AND RELATIONS. 13 heritage of all of them, and was the only oppression which could not be renounced or removed with the

\^ renunciation of the sovereignty of Great Britain.

V Neither was it, nor could it be made, a matter of reproach to any of them. It was an institution introduced into America by. the parent State, and acquiesced in by the colonic^ themselves, in an age and at a period in their history when the traffic was pursued by all nations without any special sense of its enormity.

The Northern Colonies participated in it as well as and equally with the Southern Colonies. The navigation of the New England ports was largely emjployed. « on the A&ican coast, and her commercial marine continually engaged in the transportation and shipment of slaves to the diflferent American markets, by the aid of American capitjal. No stigma, therefore, can be cast on our bj *ren in the South for its intro-

' duction, or for the fruits of its inheritance, which is not in like manner and equally applicable to us at

, .the liForth, and to the English nation.* After its introduction all became equally eager to enabark in the traffic, to avail themselves of its profits, and to cherish; and protect the right of property which it gaye in| the subjects of their enterprise and their sp9culat,ions. Hence the existence of Slavery and

. ^ 1 '.!-[ \ ■ vi . i ; * See Annals of Congress, 1791. App.

SLAVERY IN THE TJNITED STATES.

the ownership of slave property, were subjects which called for peculiar consideration, for indulgences and concessions, and for guards and guarantees, in the formation of a National Government which was to be of general, perpetual, and irrevocable jurisdiction,;

The compact of the Oohpederation makes no mention of the subject of Slavery, and contains no specific provision in relation to it, although it is historically true that every one of the thirteen Original States which ratified it, was at the time a slaveholding State; and the Confederation was expressly designed to cement and make perpetual the league of union formed by the Colonies under the Declarar tion of Independence. The slightest approxima-tion to the subject is found in the Articles of Confederar tion, which provide: —

Article I^- Sec. I. — "The better to giecureand pierpetuate mutual friendship and intercourse among the people of the difierent states in this union, the free inhabitants of each of these states,— paupers, vagabonds, and fugitives, from justice excepted, — shall be entitled to all the privileges and immunities of free citizens in the several states; and the people of each state shall have free ingress and egress to and from any otherjstate, and shall enjoy therein all the privileges of trade and conmierce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively: provided that such

ITS NATIONAIi KECOGNITION AND KELATIONS. 15

restrictions shall not extend so far as to prevent the i&mmdl oi, property imported into any state to any other state of which the owner is an inhabitant."

This latter clause was evidently intended to protect the ownership of slave property as well as ordinary merchandise, in transitu from the port of entry in one state to the place of ownership in- another state.

But the first direct, general, and National recognition of Slavery and the right of property in negro slaves, of which we have any full record, is contained in the political compact made between the several states and the United States, for the government of the territory north-west of the river Ohio, commonly called THE Ordinance op 1787, which provides,—

Article VI.— "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted. Provided always, that any person escaping into the same, from whom labor or service , is lawfully claimed in any one of the original states, sMuAi. fugitive may be lawfully reclaimed and conveyed to the person- claiming his or her labor or service as aforesaid."

The recital contained in the same Ordinance, and which precedes the articles of compact enumera,ted, of which the foregoing is one, declares:— *' J^ U : hereby ordained and declared by the authority afore^ said, that the following articles shall be considered as articles of compact, between the Original States and the people and states in the said territory^ and forever remain unalterable unless by the common consent."

It is evident that the phraseology here used is carefdlly selected, and was purposely guarded and specific. It is also evident that the compact w;as Resigned to be perpetual, and that it could be canceled or revoked only by the parties making it, acting in the same capacity and sustaining the same position and relations which they now occupied. It is apparent, too, that Slavery is here recognized as an existing institution, which conferred a right of property in the subjects of it, and which involved a right to reclaim the fugitive from its servitude. But at the same time it must be observed that this recognition of it is restrictive. It prohibits Slavery in general, while the provision for its protection is limited to the said territory as the place of refuge and recaption, and to the Original States, or any one of them, as the place of recognized ownership and escape. It could have no other application from the very terms of it. It could not have been intended to have any other, because it covered the whole domain, both state and national, included within the precincts of the Republic then called the United States. The person escaping must owe labor or

ITS NATIONAL BBCOGNITION AND EELATIONS. 17 service to an inhabitant of one of the original states; the service must be due mid^r the laws of the state from v^Mch he is alleged to have escaped, and he can be reclaimed only When escaping into the said territory. The reverse of the provision could not be maintained. A person owned, perchance, in the said territory, or in any state formed out of the said territory, escaping into any one of the original states , could not be reclaimed under this provision. Nor could it reach the case of a fugitive from service due in any one state, escaping into my other state.

It is plain, then, that the Ordinance of 1787 recognized and protected, and was intended to recognize and protect, Slavery, or rather the o'smership of slave property, only under the circumstances of ownership and escape specified. It is also evident that it did not then, and cannot now, of itself, give it protection beyond the specified limits, or xmder any other than the specified circumstances.

This Ordinance, I have observed, was made (Z perpetml compact, iriGvoc&hlQ except by the common consent of the respective parties to it. The parties "WQvethe Original States, (1x> whom as United States the said Territory had been ceded for the purposes of the Union,) on the one side ; and <Ae people and States of the said Territory on the other side. The pledge was mutual, reciprocal, and solemn, that Sla<^ very should never be introduced there, and that it should never be recognized or protected there, except in the particular cases, and under the particular circumstances, and within the limits specified. This, too, whether the people inhabiting therein remained under a Territorial government, or were erected into a State and admitted into union with the Original States.

The agreement could not be varied, or canceled, nor could Slavery lawfully exist there as -a local institutionj without this common consent. Nor could it be recognized or protected elsewhere, under this provision^ by the simple admission of other and then unknown members into the Confederacy, under any combination of circumstances not contemplated or provided for in the terms of the compact. New States or Territories, other than those composing the Original. Thirteen^ or any portion thereof, coming into the Confederacy thereafter, could not necessarily claim protection in the ownership of slave property, by virtue of the stipulation contained in this Ordinance.

Thus far was Slavery recognized, and the ownership of slave property protected, under the Confederation and the Ordinance of 1787. How was it under the Constitution ?

n.

That the compact of the Constitution superseded the compact of the Confederation, in all respects, no one will deny. How did it affect the Ordinance of

1787 ? Did it revoke it ? Did it extend or restrict, or vary in any way, its provisions ? Let us see.

The same parties, the original States ^ which made the compact contained in the Ordinance, at a concurrent era also made the compact contained in the Constitution. If, therefore, the Constitution abrogated or varied, restricted or enlarged, the provisions of the Ordinance, it was done by the common consent referred to ; and hence, whatever change was made, was equally binding on the original parties to either.