The Plan of the Republican Fathers
The Republicans generally agreed that the Southern oligarchy was revolutionary and not conservative, in the proper American sense of the word conservative. The word requires a referent, and to the Republicans the American founding was the logical referent of American conservatism. The rulers and defenders of the Southern regime could be deemed conservative only if the referent of their conservatism was aristocratic-monarchic forms of government that antedated the American founding. The Republicans sometimes attributed conservatism to the oligarchy in this qualified sense. But to them it was improper to place the referent of American conservatism there. The American founders, said Senator James Nye of Nevada, “started with a new doctrine and a new theory” and “threw aside the postulates of aristocracy . . . instituting government to protect natural and personal rights.”1 Measured against that referent, the development of Southern oligarchy and the deliberate policy of extending slavery broke from and did not conform to the plan of the American founding. The aim of the Republicans was to correct that deviation and bring the nation into closer conformity with that plan. They, and not the oligarchy, were the true conservatives.
In 1862 Isaac Arnold reminded his colleagues that there were some “who adopt the name of conservatives to preserve slavery,” but their conservatism was false. Those so-called conservatives constituted “the aristocracy of slavery” and were fighting for “slavery and the subversion of constitutional liberty,” to which he added, “From all such conservatives ‘Good Lord, deliver us.’” But they, the Republicans, belonged to “another class,” the true conservatives, “who wish to preserve the Constitution, the life of the nation, liberty, and all which is dear to us.”2
A single example provides ample proof of Republican agreement that the slave South had developed in an oligarchic direction and had deviated from the plan of the American founders, and that is the speech of Charles Sumner on February 5 and 6, 1866. The reaction of his Republican colleagues shows that even the opponents of his policy agreed with him. By then, the postwar Thirty-Ninth Congress had been convened for two months, preoccupied with the question of Reconstruction policy. This policy would determine how to implement the establishment of republican government in the insurrectionary states. At that crucial time, Sumner delivered a two-day speech on the meaning of American republicanism as established by the founders and the deviancy of Southern oligarchy.
Article IV, Section 4, of the Constitution required that the national government guarantee a republican form of government to the states. Although Congress generally agreed that the insurrectionary states were not republican, a thorough and precise definition of what constituted a republican form of government was required. Addressing the Senate, Sumner said that this was “a practical question, which you are summoned to decide.” To fulfill its constitutional duty to guarantee a republican form of government, the Senate had to “affix its meaning.” The Constitution compelled them to answer the question.3 Sumner’s speech attempted to affix a proper meaning to that definition.
Among the congressional Republicans who opposed Sumner’s views of Reconstruction policy were James Blaine, William Fessenden, and Senator George H. Williams of Oregon. The occasion of Sumner’s speech was debate on the “Blaine Amendment.” In the House, Blaine had successfully advanced a proposed amendment to the Constitution, and Fessenden called for its consideration in the Senate. The proposed amendment, an early draft of what would become part of the Fourteenth Amendment, did not require states to enfranchise freedmen, but reduced the basis of apportioning representation by the number of all persons a state might exclude from the elective franchise. Sumner claimed that no amendment was necessary. The Constitution already affirmed the right of Congress to guarantee a republican form of government by regular statutory enactment, and he countered Fessenden with a substitute bill that did include the mandatory extension of the franchise.
Later, Blaine wrote, “as a political argument calculated to shape and determine the legislation of Congress,” Sumner’s speech “was singularly inapt.”4 The day after Sumner’s speech, an exasperated Fessenden also attacked Sumner’s policy position, as did others.5 Williams argued that although the present majority in the Congress might agree with Sumner on “the constitutionality and expediency of such legislation,” the constitutional views of a future majority in Congress might differ, with the result that “the political rights of millions of people would be as varying as the capricious fortunes of the political parties of the country.”6
Williams meant that it did not matter that Sumner’s interpretation of the Constitution was correct, nor that Williams himself agreed with him, because his interpretation was contested. Over the prior decades, oligarchic statesmen had corrupted American constitutional interpretation in order to advance American political development in an oligarchic direction. Southern statesmen who held a self-serving or corrupted view of the Constitution might overturn the statute through normal politics upon their return to Congress. This was why amendment to the Constitution was needed, to specify and confirm the requirements of American republicanism and close off any opening to construe the Constitution in favor of deliberate or unwitting misinterpretation created by and for self-serving oligarchs.
However, these same critics of Sumner’s policy position agreed with his speech on the Constitution, the nature of the founders’ republicanism, and the South’s deviation from republicanism. Blaine wrote that Sumner’s speech was an “exhaustive and masterly essay” and “a treatise of great value.” From the Senate floor, Fessenden said Sumner had “eloquently shown” what were “the great principles which lie at the foundation of the Constitution itself, and of all free and republican government.” George Williams effused, “Sir, I listened with profound admiration to the speech which the Senator delivered in favor of the proposed substitute. It was worthy of the subject, worthy of the occasion, worthy of the author; and when those who heard it shall be forgotten, the echoes of its lofty and majestic periods will linger and repeat themselves among the corridors of History. I cordially indorse the prevailing sentiment of that speech.”7 This shows that the Republicans in Congress were generally united in their interpretation of the constitutional meaning of republicanism and in their understanding of the highest goal of Reconstruction, the restoration of the founders’ republicanism. Their sharp differences pertained to policy, how to achieve that higher goal.
Sumner first traced the background of Article IV, Section 4. Writing before the Federal Convention, James Madison anticipated dangers to the existence of republicanism arising from the existence of slavery. Quoting and commenting on Madison’s private notes, Sumner said: “‘According to republican theory, right and power, being both vested in the majority, are held to be synonymous; according to fact and experience, a minority may, in an appeal to force, be an overmatch for the majority’; and he remarks, in words which furnish a key to the ‘guaranty’ afterwards adopted, ‘Where Slavery exists, the republican theory becomes still more fallacious,’—thus showing, that, at its very origin, it was regarded as a check upon Slavery.”8 Sumner was showing that Madison understood the inherently antagonistic relation of slavery to republicanism: where slavery existed, “right and power” did not remain lodged in the majority, as republican theory required, but were transferred to a lodgment in the minority. An explicit guarantee of republican government was intended to provide a constitutional check upon this tendency.
Sumner continued that, in their notes or speeches contemporaneous with the convention, Alexander Hamilton, Edmund Randolph, and George Mason had all strongly favored a constitutional requirement that American government be republican in form. An early proposal of the provision in the convention included the national government’s guarantee of a state’s “existing laws,” to which Gouverneur Morris objected. James Wilson amended the language with the convention’s approval, so that the national government would be required to guarantee only “a republican form of government” to the states. This showed that the convention agreed in distinguishing true republicanism from “existing laws” in deciding what should receive the guarantee. Summoning further reasons for the guarantee’s inclusion, Sumner first quoted and then commented on “the prophetic language” of Madison’s Federalist 43:
“It may possibly be asked, what need there could be of such a precaution, and whether it may not become a pretext for alterations in the State governments, without the concurrence of the States themselves. . . . But who can say what experiments may be produced by the caprice of particular States, by the ambition of enterprising leaders, or by the intrigues and influence of foreign powers?”
The very crisis anticipated has arrived. “The caprice of particular States” and “the ambition of enterprising leaders” have done their worst. And now the “guaranty” must be performed, not only for the sake of individual States, but for the sake of the Union to which they all belong, and to advance the declared objects of the Constitution, specified in its preamble.9
Sumner was explaining that the guarantee not only serves the advantage of the people of the state in which the government had revolutionized, but is also “a guaranty to each in the interest of all,” because the “good of all is involved in the good of each.” As the guarantor, the national government acts for each and all when it acts “on default of the party guarantied.” In other words, when one or several state governments revolutionize away from republicanism, all states are vulnerable to corruption, just as healthy parts of the body are vulnerable to a cancer in other parts. The guarantee was a remedy in the event that a state or several states might adopt a new antirepublican form of government. In that event, the nation would become divided by a fundamental difference, a difference in political regimes. But vested with the constitutional authority to conduct surgery on the antirepublican governments in those states, the national government both saves the people of those states from antirepublican tyranny and protects the other states from spreading tyranny. Sumner observed that the nation had been experiencing this crisis through the antebellum period and Civil War, against which the framers of the Constitution had provided a remedy in Article IV, Section 4.
Sumner then took up this question: “What is ‘a republican form of government,’ according to the requirement of the National Constitution?” The fathers distanced themselves from prior definitions and foreign definitions of republicanism. The “most competent” of the fathers, “who disagreed on other things, agreed in discarding these examples.”10 Sumner described the fathers as lettered but thoughtful, confident, and intellectually independent men who sought to improve upon available definitions and did settle on one when they inserted the republican guarantee into the Constitution:
Our fathers plainly intended a government representing the principles for which they had struggled. Now, if it appears that through years of controversy they insisted on certain principles as vital to free government, even to the extent of encountering the mother country in war,—that afterward, on solemn occasions, they heralded these principles to the world as “self-evident truths”—that also, in declared opinions, they sustained these principles,—and that in public acts they embodied these principles,—then is it beyond dispute that these principles must have entered into the idea of the government they took pains to place under the guaranty of the nation.11
The reason the fathers struggled and then warred against the mother country was “to establish the very principles for which [Sumner] now contend[s] . . . , [t]o secure the natural rights of men.” Sumner continued: “The first object was not independence, but the establishment of these principles and when at last independence began, it was because these principles could be secured in no other way. Therefore the triumph of independence was the triumph of these principles, which necessarily entered into and became the animating soul of the Republic then and there born.”12
Marshaling broad historical testimony, Sumner showed that the purpose of the Revolution was to establish “a Republic, with Liberty and Equality as animating principles, where government stood on the consent of the governed,” based on natural right. When the fathers declared independence, “they continued loyal to their constant vows.”13 In their bills of rights, the states also proclaimed this doctrine. At the close of the war, Madison composed a similar doctrine that George Washington promulgated in a general order issued from his camp:
Let it be remembered that it has ever been the pride and boast of America, that the rights for which she contended, were the rights of human nature. By the blessing of the Author of these rights, on the means exerted for their defence, they have prevailed against all opposition, and form the basis of thirteen independent states. No instance has heretofore occurred, nor can any instance be expected hereafter to occur, in which the unadulterated forms of Republican Government can pretend to so fair an opportunity of justifying themselves by their fruits. In this view the citizens of the United States are responsible for the greatest trust ever confided to a political society.14
From events prior to the Revolutionary War through the war’s end, and throughout their lives, Sumner showed, the fathers sustained the same principles, “testifying to the government they founded and upheld.”15 A tolerably distinct, recurring definition of republican government could be found in their broadly overlapping opinions. Sumner provided supporting exegeses of the professions of founders Benjamin Franklin, Thomas Jefferson, James Madison, Alexander Hamilton, Samuel Adams, Roger Sherman, John Adams, Charles Pinckney, Luther Martin, George Mason, and John Taylor of Caroline.16
In sum, the quotations Sumner read from his speech all conjoined natural right to republicanism. They professed their belief in natural equality with respect to liberty, from which they derived the rightfulness of popular sovereignty. Republican government was the only legitimate form of government, resting upon the consent of the governed, because the fact of natural equality admitted no other form. But by “consent of the governed,” the fathers meant both that the government had to register the collected will of the governed political community and that the government could not violate the natural rights of any member of the political community. Natural rights both conferred lawfulness on the will of the majority and limited what the majority could rightfully do.
Sumner then recited the public acts of the founding generation that confirmed this meaning.17 Concluding this section of his speech, Sumner announced to his colleagues:
I offer you the American definition of a Republican form of government. In vain do you cite philosophers or publicists, or the examples of former history. Against these I put the early and constant postulates of the Fathers, the corporate declarations of the Fathers, the avowed opinions of the Fathers, and the public acts of the Fathers, all with one voice proclaiming, first, that all men are equal in rights, and, secondly, that government derives its just powers from the consent of the governed; and here is the American idea of a Republic, which must be adopted in the interpretation of the National Constitution.18
He then addressed one plausible objection to his proof: “the contemporary recognition of Slavery.” But he thought it enough to remind the Senate that “our fathers did not recognize Slavery as a permanent part of our system, but treated it as exceptional and transitory.” And in fact, “becoming a freeman,” the slave stepped into republican citizenship. Sumner gave examples showing that “at the adoption of the National Constitution,” the founding generation “refused to recognize any exclusion from the elective franchise on account of race or color. The Fathers knew too well the requirements of a republican government to sanction such exclusion.”19
Over the course of dissecting the opinions and acts of the founding generation, Sumner took care to distinguish the fathers’ republicanism from the form of antirepublicanism that had brought America to a crisis. Franklin’s 1736 writing on popular government, foreshadowing republican government, held it to be created for “the good of the whole,” to which Sumner added, and “not for an odious oligarchy or an aristocratic class.” On Jefferson’s criticism of excluding taxpaying and fighting men from representation, Sumner commented, “Thus did he scout out the whole wretched pretension of oligarchy and monopoly by which citizens are deprived of equal rights.” Quoting Hamilton, Sumner said that, “as long as offices are open to all men and no constitutional rank is established, it is pure republicanism.” Then Sumner added for emphasis: “Not for an oligarchy but for all, is a republic created.”20
By contrasting the founders’ republicanism with oligarchy on these particular points, Sumner reminded the Senate how the insurrectionary states had violated Article IV, Section 4, which the Senate was bound to enforce. As he continued his speech, Sumner read the interstate political regime of the Southern states out of the protection of the Constitution:
A republic, like a democracy, cannot tolerate inequality. Wherever a favored class appears, whether in one or the other, its republican character ceases. It may be an aristocracy or oligarchy, but it is not a democracy or a republic.
It is not difficult to classify our Rebel States. They are aristocracies or oligarchies. An aristocracy, according to the etymology of the word, is the government of the best. An oligarchy is the government of the few, and is not even an aristocracy, but an abuse of aristocracy, as despotism is the abuse of monarchy. . . .
To show that our Rebel States are aristocracies or oligarchies might suffice. But we must not forget, that, born of Slavery, they have the spirit of that iniquity, so that they are essentially of a low type. Founded on color of the skin, they are, beyond question, the most senseless and disgusting of all history. Would you learn to what they must incline? Listen to the frank words of the Venetian master, the famous Father Paul, [who] counsels the privileged class how to use their powers. “If a noble,” says he, “injure a plebeian, justify him by all possible means; but should that be found quite impossible, punish more in appearance than in reality. If a plebeian insult a noble, punish him with the greatest severity, that the commonalty may know how perilous it is to insult a noble.” . . . But this same spirit predominates still in the Rebel States. It rages there with more revolting cruelty than Venice ever witnessed. And such is the government now claiming recognition as “republican.” . . .
Clearly, most clearly, and beyond all question, such a government is not “republican in form.” Call it oligarchy, call it aristocracy, call it caste, call it monopoly; but never call it a republic.21
Plebeians and nobles deserved unequal punishments for the same offense, which meant they were not equal before the law. “The same spirit” of inequality distinguished the American South.
In this speech, Sumner touched only briefly on the point of departure of these states’ development from the fathers’ republicanism. Since the founding, the origin of the rebellion of oligarchy against republicanism proceeded from South Carolina, spreading outward and enveloping other states. Georgia was an early compeer of South Carolina in political character. In his account of the public posture of all the states during the founding generation, Sumner made exception for those two states. Georgia was “fitful,” never quite embracing republican practice, and in stronger terms, Sumner described South Carolina as “the persistent marplot of republican institutions.” These antirepublican states then acquired a defender and promoter. “False evangelist” John C. Calhoun of South Carolina openly rejected the fathers’ principles of republicanism when he “audaciously announced in the Senate that to declare all born free and equal was ‘the most dangerous of all political errors’; that it had ‘done more to retard the cause of liberty and civilization, and is doing more at present, than all other causes combined’; and that ‘we now begin to experience the danger of admitting so great an error to have a place in the Declaration of our Independence.’” Sumner commented, “To repel such effrontery is not enough; it must be scorned. . . . The whole assumption is ignoble, utterly unsupported by history, and insulting to the Fathers, while offensively illogical and irreligious.”22 But the effrontery had taken root. The oligarchic revolution spread from South Carolina and Georgia and eventually overtook other states where slavery had continued past the founding era. Having delivered his treatise on American republicanism to the U.S. Senate, Sumner vindicated the constitutional power of the guarantee clause and prepared his colleagues finally to deploy that power.
The Republican Fathers and Slavery
Why was slave state oligarchy allowed to grow, revolutionize, and supplant the republican system that was patronized, planned, and established by the American founders? Were the founders aware of the revolutionary effect that domestic slavery would bear upon their political establishments? Or did they unwittingly sow the seeds of their republican regime’s destruction by including slavery among the elements of their political society?
The Republicans maintained that the founders opposed slavery on principle and did understand slavery’s antirepublican character and effects. Their new nation inherited but crippled slavery. Wounded, slavery was expected to die, but instead it escaped its intended mortality and then recovered and gained in strength.
At the time of the American founding, the republican fathers and the public anathematized slavery. In the language of Representative Orris Ferry of Connecticut, the founders regarded slavery as an “unholy thing.” “Our fathers,” Thomas Shannon said, “were abolitionists.” Reflecting on the founders’ antislavery aims, William Fessenden remarked, “Of course they wanted it to die; they thought it ought to die; they desired that it should perish.”23
In 1854 Senator Benjamin Wade of Ohio denied that “the founders of the Constitution were lovers of injustice and slavery.” Gentlemen “may preach until doomsday that the fathers believed slavery to be right,” but to say so was “a libel on them—it is a gross slander upon their memories.” All the founders “whose names are held sacred, and are revered among the American people” treated “it as a great stigma upon the Republic which they had formed.” They wished that “the time would come, and come soon, when it would be blotted out forever. Not to wish this, would make them fiends instead of patriots.” Wade dared anyone in the august body to tell him “who it was in the olden times, in the better days of our Republic, that rose up as the advocate of eternal chains and slavery to any class of the human race.” Nobody of that description could “be found upon the record of those great men who made their impress on our Constitution.”24
In an 1858 speech to his constituents, Representative Jehu Baker of Illinois encouraged his listeners to “look back to the beginning of our government,” and they would “find that there was scarcely any difference of opinion in relation to slavery.” Not only in the North but also in the South, “and quite universally,” Americans regarded slavery as “a great and deplorable evil.” Baker quoted Daniel Webster, who had said that “the eminent men, the most eminent men, and nearly all the conspicuous politicians of the South, held the same sentiments; that slavery was an evil, a blight, a blast, a mildew, a scourge and a curse.” The founding generation “expected that on the stoppage of the importation of slaves, slavery would begin to run out, and gradually disappear from the country.” He called out the antislavery positions of “Washington, Jefferson, Madison, Franklin, Henry, Lee, and the whole rank and file of illustrious men of that day.” Antislavery sentiment was the rule “with scarcely an exception. . . . Such was the original state of opinion in the whole country.” In 1860 Henry Dawes denied that any founders supported slavery, but said, “They all, with one accord, and with a concurrent and solemn testimony swelling into a volume, pronounced the institution of slavery an unmitigated wrong, a blighting curse to the land it rests upon, a sin and a crime in the people who gather its guilty fruits.”25
In the case of Dred Scott v. Sandford, the Supreme Court grounded its decision in an alternate history of slavery and the American founding, an account that John Hale gainsaid in 1858. The court had claimed, Hale said, that the right to hold and traffic in slaves “at the time of the American Revolution, and at the time of the adoption of the Federal Constitution, was so universally acknowledged and recognized . . . that no man thought of disputing it.” Upon this alleged fact, it followed that “even the great and sublime truths which are embodied in the Declaration of Independence” did not apply to slaves. Hale retorted that the “the truth of history” showed otherwise.26
When challenged to vindicate the truth of history, Hale did what many Republicans routinely did—they let loose a blast of research, reading the antislavery pronouncements of the fathers into the columns of the Congressional Globe.27 They especially quoted southern founders in the presence of the southern founders’ proslavery successors in Congress.
At that time, numerous Reconstruction Republicans served in the Congress, and then it was that they developed the habit of reading folios of founding-era antislavery quotations from public acts, speeches, and both private and public writings. These Republicans included Senator Henry Wilson of Massachusetts, Representative Reuben Fenton of New York, Representative Charles Van Wyck of New York, Senator James Doolittle of Wisconsin, Representative Thomas Eliot of Massachusetts, Representative Cadwallader Washburn of Wisconsin, Representative John Alley of Massachusetts, Representative James Ashley of Ohio, and Senator Waitman Willey of West Virginia.28
By far, they referred to and quoted the Declaration of Independence and its language, proclaiming that “all men are created equal” more than any other statements. Next most often, they quoted the Virginians, including Thomas Jefferson, George Washington, George Mason, James Madison, and Patrick Henry. They quoted Jefferson’s attack on slavery’s injustice and warping effect on the character of masters, from his Notes on the State of Virginia. They highlighted Washington’s expressed hope that legislative measures would abolish slavery and his promise that he would always vote for abolition. They repeated Mason’s statements on slavery’s devastating effect on laboring whites and its “pernicious” effect on the morals of masters. They quoted Madison, who said that the Constitution should not acknowledge that men could be held as property, and Henry, who said that slavery was “as repugnant to humanity as it is inconsistent with the Bible and destructive to Liberty.”29
When Hale spoke, he said he could forgive the Supreme Court that decided the Dred Scott case almost anything but the claim that “the African race was not intended to be included” in the paragraph of the Declaration that began, “We hold these truths to be self-evident, that all men are created equal.” If antebellum political strife, the Civil War, and Reconstruction are conceived as one long, epic drama, Hale’s impassioned defense of the fathers would be a fit choice for the speech that turned the downward trajectory of the plot and fairly represented his brethren and their movement that became the Republican Party. Moved by the impending loss of what they held most dear, they defected from their political parties and formed a new one that rallied like-minded Americans and stepped forward from the shadows. They would not let their inheritance from the fathers go down without a fight. Leading them, Hale flung their credenda at the advancing oligarchy. His speech here is excerpted at length:
Sir, the men who framed the Declaration of Independence, the men who fought the battles of liberty; and the men who wrote our Constitution, understood the meaning of language quite as well as the Supreme Court, and if I were put on oath, I should say [they understood the meaning of language] a little better. They knew the circumstances in which they were placed; they knew the crisis in which they were called to live and to act; they knew that the experiment which had been made from the beginning of time up to that day, of free government, had been a failure; they knew that every effort and every attempt that oppressed man had made had failed; and they felt that to them, at that time, and at that day, was committed, by the Arbiter of national destiny, the great question to solve for themselves, for their posterity, for all coming time, the great problem whether man was capable of free government. They went into that contest fully understanding the character of the strife by which their position was to be maintained; fully sensible of the character of the contest upon which they had entered. They went into it, as has been well said on another occasion, poor in everything but faith and courage. They were without arms, without wealth, without even a name amongst the nations of the earth, rebel provinces; but they were strong in faith, strong in hope, strong in patriotic impulse, and strong in their reliance on the Most High; and they went, taking their lives, their fortunes, and their honors in their hand. They threw themselves into the world’s Thermopylae of that day, and they declared that they held certain great truths to be self-evident, and that among these truths was, that all men were entitled to life, liberty, and the pursuit of happiness. Why? Not because it was written in the musty folios of speculating philosophers; not because it was found in the writings of patriots of other days; not because their fathers had vindicated on the field of battle their right to be free; not because the old British Commoners had brought King Charles to the block; not because their old Puritan ancestry, on the battle-fields of Naseby and of Marston Moor, had written in their own blood, on their own country’s soil, their determination to be free. No, sir, none of all these; but they said that man was entitled to be free, because he was endowed by his Creator with that right. They stopped nothing short of the throne of eternity. They ignored all human reasons, all human platforms, and all human authority, and with unclouded eye fixed their gaze upon the eternal throne, and laid the foundation of the institutions, which they were to build upon the eternal justice of God.
That, sir, is what the revolutionary fathers did; and when the contest was over, when the dust and the blood of battle had disappeared, and victory stood upon the flagstaff of their banner, these old men issued a declaration to the world. It was issued in 1780, the very year the war was over. “Let it be remembered,” say they, “finally, that it has ever been the pride and boast of America that the rights for which she contended were the rights of human nature.” They contended for no class, no condition. They contended for humanity. No matter, in the language of the Irish orator, what complexion, incompatible with liberty, an Indian or an African sun may have burned upon him, when he stands erect in the image of his Maker, a man, then say the fathers of the Revolution, “There stands one for whom we have fought; there stands a man who was involved in the great issues which led to the revolutionary war, and which we have vindicated with our blood.” They continue further:
If justice, good faith, honor, gratitude, and all the other qualities which ennoble the character of a nation and fulfill the ends of government, be the fruits of our establishments; the cause of liberty will acquire a dignity and luster which it has never yet enjoyed, and an example will be set which cannot but have the most favorable influence on the rights of mankind.
There is the idea; true to their principles, true to the avowals of public sentiment, with which they went into that contest.
When the American founders established independence with the declaration that “all men are created equal,” they did not mean “all white men,” “all free men,” or “all English speaking men.” They meant all members of the human family. They braved war to gain an improbable victory for this principle, which was the bedrock of their republicanism and the source of their antislavery sentiments. The Republicans maintained that everything that the founders said and did, including what they said and did about slavery, related to that principle like sunbeams related to the sun. Here was a hypothesis that the Republicans were willing to submit to the test of historical evidence, and they produced a large portion of historical evidence to prove their argument.
The founders proscribed slavery not only on moral grounds but also on political grounds. They understood that slavery and republicanism were mortal threats to each other’s existence. Orris Ferry claimed he could bring forth “hundreds of expressions in the writings of the revolutionary fathers and of the framers of the Constitution, wherein slavery is spoken of as antagonistic to the principles of the Declaration.” John Bingham explained, “The fathers did deem the existence of this institution as incompatible with the safety of the Republic,” because they knew it was a “terrible and destructive element in our social system” and “knew well that slavery must be restricted and finally abolished, or the Republic would perish.” Henry Wilson referred to “the glorious fact that the founders of the Republic proclaimed slavery to be an evil—a moral, social, and political evil.” As a political evil, slavery was always “an alien in America, an enemy to law and order, liberty and progress. The pages of our colonial history bear to us the amplest testimony that our fathers saw its malign influence.” At the time the Constitution was formed, said Representative Reader Clarke of Ohio, “the common sentiment” proscribed slavery both as “an outrage upon the rights of humanity” and as “a source of infinite danger if perpetuated.”30
In 1856 Senator Jacob Collamer of Vermont explained why the founders prohibited slavery in their first exercise of power under the Constitution. First, they did so “because . . . they believed that the institution was one which ought to end” and, second, due to slavery’s effects. “It was perfectly understood by our fathers . . . that where the institution was not abolished by the States themselves, it would, in its tendencies, produce a condition of society which did not comport with the great purposes, objects and views, and what was necessarily implied by popular government. Its necessary effect, it was seen, would be to elevate a limited number, and depress the mass of the white population.” Collamer conceded that “where an institution in the character of aristocracy exists,” the labor of others affords “wealth and opportunity” and “high cultivation” to “a particular set of men.” And nobody should be surprised that these men “should have a desire to cherish and sustain it.” But the effect on the majority of the free white population was opposed to the ends of that form of government established by the founders. Their vision was that the people “should conduct their labor with high intelligence, that they should be improved and elevated, and become a people better fed, better clothed, better housed, better governed, of higher intelligence, than any people under heaven.”31 That is, the founders knew that a republican nation and slavery were irreconcilable.
During the war, Lovejoy quoted two founders’ acknowledgments of the mutual, inherent hostility between slavery and republicanism in order to remind his congressional colleagues that although the struggle that defenders of republicanism had been waging against slavery was eighty years old, it was a struggle necessarily mortal to one or the other. Exhorting his colleagues to move quickly toward emancipation, Lovejoy took the position that “either slavery or the Republic must perish; and the question for us to decide is, which shall it be?” To bear witness to the founders’ awareness of the irreconcilability of slavery and republicanism, he read aloud a passage by Jefferson that stated that “the liberties of a nation” can never be secure when the acceptance of slavery takes away “their only firm basis, a conviction in the minds of the people, that these liberties are of the gift of God.” And he read from Maryland founder William Pinckney, who said, “Nothing is more clear, than that the effect of slavery is to destroy the reverence for liberty, which is the vital principle of a republic.” John Shanks said that “slavery is but treason against humanity,” leading easily “to treason against the free Government of our fathers.” He then read the same passage from Pinckney to show that the founders also knew that slavery and republicanism could never coexist. At different times, Wilson, Fenton, Lovejoy, and Willey all quoted a passage by Luther Martin, who forthrightly declared that slavery and republicanism opposed one another in irrepressible, mutual hostility: “Slavery is inconsistent with the genius of republicanism, has a tendency to destroy those principles on which it is supported, as it lessens the sense of equal rights of mankind, and habituates us to tyranny and oppression.”32 The Republicans did not need to pause to survey the history of the early Republic to their own troubled days to consider whether events had proved and fulfilled Martin’s theory. They experienced and bitterly felt its fulfillment all around them. Long before the ongoing war opened the veins of the nation, when Lovejoy quoted Martin’s words, a proslavery mob had murdered his abolitionist brother. The dissolution of republicanism in the slave states and the consequent struggle to defend and advance embattled republican liberty were aspects of their enveloping reality.
If the republican fathers despised slavery—and feared the institution’s effects—how did slavery enter into the political society of the founding generation? Addressing the House of Representatives in 1860, Reuben Fenton recalled, “When the declaration of our rights was proclaimed, . . . there existed among us an institution inconsistent with its great truths.”33 Fenton was reminding his hearers that when the Declaration of Independence inaugurated the birth of the United States of America, slavery already existed in every one of the colonies that collectively became the new nation. That inherited birth defect disturbed the “leading men of that day,” whose principles condemned the institution.
Senator Gratz Brown of Missouri alluded to the founders’ discomfiture that slavery was “at war in theory with the Declaration of Independence upon which the colonies had reposed their cause.” Richard Yates said that when the fathers “came to form a Government, they encountered an institution which was hostile to the principle which they attempted to establish.”34
The Republicans recalled the founders’ consternation toward Britain for fastening slavery to their country. Representative John Rice of Maine remembered that “the abnormal anti-republican system of African slavery” had been “unjustly forced upon the unwilling colonies by their unnatural mother, against the protestations of our revolutionary sires.” On account of that wrong and “other wrongs and oppressions, they asserted and won their independence.” To prove this fact, Gratz Brown also recalled, “When the resolutions were passed by the Assembly of Virginia, prior to the war, it was made one of the formal charges against the King of Great Britain that he had interfered with his veto to prohibit the abolition of slavery.” Many Republicans read aloud that charge, drafted by Jefferson, which stated that “the abolition of domestic slavery is the greatest object of desire in these colonies” and that the importation of slaves was “injurious to the lasting interests of the American states, and the rights of human nature.”35
Henry Wilson and Jacob Collamer recounted in detail how Britain planted slavery in America. British merchants profiting from slavery influenced the colonial and commercial policy of England to their advantage. The Parliament and the Crown collaborated to extend and protect slavery in the American colonies. Queen Anne even instructed the governors of New York and New Jersey to support the Royal African Company. When opposition arose in America and Britain, slavery was already a significant element in American society. Before American society became the American nation, “British avarice planted slavery in America; British legislation nurtured and sustained it; British statesmen sanctioned and guarded it.” Because the American colonies were governed and did not govern themselves, they could not stop the trade. They did protest. From 1762 until independence, “the popular leaders in New England, the middle colonies and Virginia” acknowledged “the wrongfulness of slavery” and denounced “the slave traffic and the slave-extending policy of the British Government.” Colonial legislatures attempted to block the importation of slaves into the colonies. Their laws opposing slave importations were “scattered along the records of colonial legislation.” The Virginia Legislature enacted a law taxing slave importations, but the Royal African Company obtained its repeal. The British government overawed every attempt of the colonies to thwart, in the language of James Madison, “this infernal traffic.” The government persisted at forcing the slave trade upon the colonies until their political bands dissolved. As late as 1775, the Earl of Dartmouth maintained that the colonies would not be allowed to “check or discourage, in any degree, a traffic so beneficial to the nation.” The historical record proved that the American revolutionaries “were not only hostile to the slave trade, but to the perpetual existence of slavery itself.”36
American political society inherited slavery, and many Americans who served in colonial governments, led the Revolution, and resisted the British government’s policy personally owned slaves. But Wade would “not charge Thomas Jefferson, nor Mr. Madison, nor General Washington, nor Mr. Randolph, nor Mr. Tucker, nor any other of the great statesmen to whom we look up with such reverence, with hypocrisy, or anything sinister or wrong.” Though “they held slaves,” this fact did not prevent them from speaking out in one voice that slavery “was an infringement on natural right”; neither “did it prevent them, on all occasions, from inveighing against the institution.” Reader Clarke acknowledged that “Washington, Jefferson, Madison and their compeers” held slaves, but they “were never imbued with its spirit, never justified it, never by one word in all their writings gave it their sanction; but through all their lives looked and prayed and labored for its abolition.” Those who equated the founders’ “temporary and unwilling connection with it as its perfect sanctification” were guilty of “an audacity that rises to the sublime.”37
As the bonds connecting America to the mother country began snapping, the founding generation acted against slavery. Wade asserted, “They made use of all the means within the legitimate compass of their power” to doom slavery. Jehu Baker claimed that “the acts of those great men . . . corresponded with the prevailing opinion of the time.”38
Demonstrating that antislavery action took hold of the national government when it first breathed, Thomas Eliot reminded his congressional colleagues, “Our earliest legislative anti-slavery society was our first continental Congress” in 1774.39 Several Republicans recalled what that First Congress had done. The Congress declared, “God never intended a part of the human race to hold property in, and unbounded power over, others.”40 The second article of association organizing the Continental Congress of the United States said: “That we will neither import nor purchase any slave imported after the 1st day of December next, after which time we will wholly discontinue the slave trade, and will neither be concerned in it ourselves, nor will we hire our vessels, nor sell our commodities nor manufactures, to those who are concerned in it.” The fourteenth article ostracized anyone who violated the aforesaid second article of association: “And we do further agree and resolve, that we will have no trade, commerce, dealings, or intercourse whatsoever with any colony or province in North America which should not accede to, or which shall hereafter violate this association, but will hold them as unworthy of the rights of freemen, and as inimical to the liberties of this country.” It was noted that southerners George Washington, Patrick Henry, Richard Henry Lee of Virginia, and John Rutledge and Edward Rutledge from South Carolina signed that agreement.41
Highlighting the antislavery acts of southerners in the founding era, John Hale quoted a resolution of the first Provincial Congress of North Carolina in 1774, which said that “we will not import any slave or slaves or purchase any slave or slaves imported or brought into this Province by others, from any part of the world, after the 1st day of November next.” He also quoted an act of the Provincial Congress of Georgia in 1775, which said that “we will neither import nor purchase any slave imported from Africa, or elsewhere, after the 15th day of March next.”42
Before the war broke out, Reuben Fenton recalled, a town meeting in Danbury, Connecticut, agreed to import no more slaves, declaring, “We cannot but think it a palpable absurdity so loudly to complain of attempts to enslave us, while we are actually enslaving others.”43 As Fenton and Charles Van Wyck separately showed, a meeting of citizens in Darien, Georgia, in 1775 declared a similar determination:
To show the world that we are not influenced by any interested or contracted motives, but a general philanthropy for all mankind, of whatever language or complexion, we hereby declare our disapprobation and abhorrence of the unnatural practice of slavery in America—a practice founded in injustice and cruelty, and highly dangerous to our liberties, debasing part of our fellow-creatures below men and corrupting the virtue and morals of the rest, and is laying the basis of that liberty we contend for upon a very wrong foundation. We therefore resolve at all times to use our utmost endeavors for the manumission of our slaves in this colony, upon the most safe and equitable footing for the masters and themselves.44
Before the Federal Convention met in 1787, two states, New Hampshire and Massachusetts, had completely abolished slavery in a manner demonstrating that natural rights principles were given legal standing against slavery. In separate instances, Henry Wilson and John Alley, both of Massachusetts, and Daniel Clark and John Hale, both of New Hampshire, recalled how this was done. Both states had included declarations of the equal, natural rights of mankind in their newly ratified state constitutions. In substance, those declaratory statements did not differ from the natural rights doctrine in the national Declaration of Independence or in many states’ bills of rights in their new constitutions. On the basis of those declarations, the courts of both states decided that their constitutions did not recognize slavery’s legal existence and that holding persons in bondage by custom was unconstitutional.45 These decisions suggested that, by extension, the national Declaration of Independence and the various state constitutions’ bills of rights recognizing natural equality could also be construed to forbid holding persons in bondage. Only positive recognition of slavery in state or national organic law could interfere with a state or national court from reaching the same decision on similar grounds.
Isaac Arnold recounted that other states abolished slavery by legislation: Rhode Island and Connecticut in 1784; New York, by gradual emancipation, in 1799; and New Jersey, by gradual emancipation, in 1804. In different years, Hale and Representative James Rollins of Missouri quoted one such act of emancipation, the act to gradually abolish slavery in Pennsylvania in 1780, penned by Benjamin Franklin. The act said that slavery had “deprived them of the common blessing they were by nature entitled to,” which Rollins and Hale quoted to show that the act was justified by the principles of the revolution.46
Hale and Eliot both reminded Congress of an extraordinary effort by the national government, still before the Federal Convention, that would have sooner sealed the national abolition of slavery. In the Congress under the Articles of Confederation in 1784, one year after the Treaty of Paris formally ended the war, Jefferson moved that all territory then held by the national government or acquired in the future “should be forever free from what he considered the contaminating and blighting influences of human slavery.” Two southerners, Jefferson and Chase of Maryland, had a place on the committee that reported the draft bill. The report divided the territory then held and expected to be acquired by state cession into seventeen anticipated states, nine above the Ohio River and eight below. Thus, the committee had proposed to prohibit slavery from all future territories. Due to the peculiar requirements of the Articles of Confederation, the committee report failed, though six states and sixteen members voted for it against three states and seven members.47 The vote nevertheless showed that a majority of national representatives in Congress favored forever prohibiting slavery from all land the nation would henceforth acquire. Slavery narrowly escaped restriction to only the original states that had hitherto not yet abolished it.
The delegates who met to revise the constitution of the national government brought with them their natural rights convictions. After quoting Washington’s antislavery opinions, Fenton reminded his congressional colleagues that the southerner presided over the convention of men who framed a constitution designed to “secure and perpetuate to themselves and posterity union, freedom, and happiness,” and those men agreed with Washington “with equal force and emphasis . . . against this evil, the wrong, and curse of human bondage.”48
The Republicans argued that these convictions influenced the development of the delegates’ new plan for the national government. In their general view, the Constitution was antislavery in spirit and used reticent language toward slavery when confronting it. To be sure, very few Republicans who served during Reconstruction came close to declaring publicly at any time that slavery was or had been unconstitutional, but they did recognize a basis on which to make that argument. At minimum, they agreed that the founders had not legally established slavery in the Constitution.
Hale invoked evidence to prove that the founders “thought slavery ought not to be countenanced and allowed in the Constitution.” The delegates in the Federal Convention altered the text of the emerging Constitution consistent with their opposition to slavery. A drafted clause concerning the enumeration of population “fixed the number and said, ‘including those bound to servitude.’” But Randolph of Virginia “moved to strike out the word ‘servitude,’ and insert ‘service’ in its stead; because the word ‘servitude’ implied the condition of slaves, and ‘service’ described the obligations of free persons.” Hale added that, in the convention, James Madison objected to the use of the word slave, saying that he “thought it wrong to admit in the Constitution the idea that there could be property in men.” In harmony with the Declaration, the Constitution, Ferry argued, “purposely, carefully, guardedly, ignores the very existence of such property.” Even the Fugitive Slave Clause eschews using the word slave, indirectly referring to those commonly called slaves but directly calling them persons, which denies they were property. The clause, Ferry said, “does not purport to restore merchandise to its owner, but a debtor to his creditor; representation and direct taxation are to be apportioned among the several States, according to an enumeration of persons, not according to an enrollment of property.”49
Under the Constitution, in his view, no man lost the title of his own person to another, but the Constitution did recognize that one man might owe a debt in labor to another. The difference between one man owning a title in another and one man held to a debt of labor to another was significant. An owned man has no rights and is chattel property; a man owing a debt of labor does have rights, the exercise of which might be limited by law or contract.
But, as Jacob Collamer pointed out, the Constitution did not create the debt in labor one man owed to another. The so-called Fugitive Slave Clause merely mandated the enforcement of that debt, if such a debt existed, and its enforcement involved a diversity of states. The “language of the Constitution,” Collamer quoted, was “‘held to service.’—how? Under the laws of another State. ‘Held to service under the laws thereof,’ is the language.” Therefore, the Constitution did not recognize any man as property. It did recognize that some may owe a debt in labor to another, but debts in labor were not the creation of the Constitution. Collamer maintained that the Constitution’s allusion to “the laws thereof” implied that the debt in labor was created by the states, or was a contract permitted by state law, and was not the creation of the Constitution.
The common name given to the so-called Fugitive Slave Clause after the drafting of the Constitution was, speaking in precise terms, the Fugitive Laborer Clause, because it could equally apply to persons commonly known as slaves or to a contracted employee or apprentice. Hence, the clause did not legally recognize a difference between a black American fleeing bondage and the young Ben Franklin fleeing contracted apprenticeship with his brother. Collamer went further with his proof. If a “man bound to service in one State escapes into another State, is he property there? Can the master go and take him there, and keep him there, and sell him there, and use him there? If he is like other property . . . all that would be true; but we know it is not. That provision of the Constitution declares all laws of other States that would release him from the service void; that is all.”
Had the clause established and recognized “property in man,” state and territorial laws prohibiting slavery would all be unconstitutional. In that case, a master from the slave state of Maryland could retrieve an escaped slave in the otherwise free state of Pennsylvania and use the slave and sell the slave in Pennsylvania, just as a master could retrieve, use, and sell a horse. Any interdiction of the master’s disposal of the slave or horse in Pennsylvania would deprive the master of his property without due process of law, which was the basis of the later Dred Scott decision. But Collamer believed that the truth was otherwise, which meant that the Constitution merely tolerated state laws that allowed holding, limiting, and prohibiting persons bound to service, but it never recognized the constitutionality of chattel slavery. In support of his position, Collamer cited the case Prigg v. Pennsylvania, which found, “The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of territorial laws.” This meant that slavery was a local creation, not the creation of the Constitution. But even the Prigg decision said more than what was warranted, because the Constitution did not at all recognize the “state of slavery,” the right of man to hold property title in any other man.50
Because the Constitution did not recognize property in another man, Daniel Gooch supposed that when “two men leave a State, one man being the slave of the other,” and voluntarily enter “into another,—where slavery is not recognized . . . , neither has any right to claim the other as a slave.” When prompted by a Southern representative, “By what law?” Gooch did not hesitate and linked natural equality in the Declaration to the equal privileges bestowed upon citizens by the Constitution: “By the law of nature; by the fact that the two men were made by God, and were entitled originally to equal rights and privileges. . . . [T]hey assume the position which God intended them to occupy, and stand upon an equality before God, and before the laws.” Outside the jurisdiction of a state that limited the rights and privileges of a person held to labor, the debtor-creditor relationship of the putative master and slave fell away, and both were recognized as equal before the Constitution, which embodied the natural equality principle of the Declaration. So convinced was Representative Robert Hale of New York that “the institution of slavery itself has existed in defiance of the provisions of the bill of rights,” that “it was an anomaly under the Constitution,” and that “under the strict language of the Constitution,” he could not see “how it ever could have been claimed to exist.” Of course, he acknowledged it had existed, but he was distinguishing its constitutional existence from its existence by custom or state law.51
In 1864 Gratz Brown also quoted Madison’s objection, noting the strange incongruity between the delegates’ free use of the word slave in their debate and discussions and their abstention from using the word slave in the Constitution’s text. From this, Brown reasoned, it was “very clear” that the founders “must have had an intention to subserve some public end when they deliberately left out of the instrument, which is the charter of our liberties, the word ‘slave.’” That public end was “to exclude from that Constitution any national recognition of slavery, to avoid any national obligation to foster or protect it, and to keep that noble muniment of our political rights free from reproach.” Also in 1864, John Farnsworth argued that when the framers adopted the Constitution, “the greatest care was taken that no words should be incorporated into that instrument which would imply that ‘man could hold property in man.’” Noting that this was Madison’s “very language” when objecting to the use of the words slave or slavery, Farnsworth added, “You may search through the Constitution from the beginning to the conclusion of it, and no stranger to the fact that slavery has existed in the United States would believe for a moment that slavery could exist under it.” This deliberate abstention from using the word slave, Farnsworth argued, showed principled consistency, for the revolutionaries had previously declared their independence while declaring the “self-evident facts that all men were created equal, and endowed with the inalienable rights of life, liberty and the pursuit of happiness.”52
John Bingham apprehended that the Fifth Amendment, which protected the rights of life, liberty, and property, together with the Sixth Amendment, constituted a conflict with slavery. He communicated this indirectly, stating, “If Ohio had tolerated involuntary slavery by her constitution, or had denied to any man protection of life, liberty, or property, or trial by jury, her constitution would have been . . . violative of the fifth and sixth amendments of the Constitution of the United States.”53 The obvious inference was that states permitting involuntary slavery, whether by law or custom, were in violation of those parts of the Constitution.
All of their arguments aimed at revealing how the founders’ Constitution undermined slavery. By not recognizing slavery at all, the wording of its text ameliorated the legal condition of those regarded as slaves by state law or by state custom. Slavery was commonly known to exist in the land, but it was legally unknown to exist by the Constitution that governed the land. Within the purview of the Constitution, those actually in slavery were to be regarded as persons held to labor, as persons imported for labor, and as persons specially enumerated for purposes of legislative apportionment. Persons were recognized as bearing rights by the Constitution, whether states’ organic or statutory laws stripped or protected those rights or not. As far as the Constitution was concerned, persons held to labor were not to be construed as chattel property, lacking equal, unalienable rights. The constitutional text weakened the standing of customary slavery from the perspective of the national government.
The Republicans always accepted and insisted upon the similitude of the principles behind the Constitution and the principles stated by the Declaration. Representative Josiah Grinnell of Iowa claimed, “The great expounders of our Constitution have said that the Declaration of Independence itself, proclaiming all men free and equal, laid the cornerstone of our Confederacy.” When a Southern congressman asked Gooch whether the Declaration’s “higher law,” that is, “the law of nature,” overruled the provisions of the Constitution, he answered, “I tell him no. I consider the Constitution of the United States to be in accordance and in agreement with the law of nature. I consider that the Constitution of the United States does not provide for and establish the existence of slavery. The men who framed the Constitution of the United States never intended to make a Government which was to uphold and be responsible for the existence of slavery.”54
Confronted by the brute reality of slavery existing by custom, the framers nevertheless had drafted the text of the Constitution in faithful accord with the Declaration. The implication was that the framers had left behind legal ground upon which to press a constitutional case that would nationally abolish slavery, should that legal ground ever be necessary. But here the Republicans stopped short of pressing that argument. Although their demonstrations shed light on the plausible constitutionality of the position, most shied away from directly embracing it. In 1856 William Fessenden identified “a very small class, a very powerless class,” the “ultra-Abolitionists,” who professed that “under the Constitution there is power to abolish slavery in the States, and who avow a willingness to exercise that power.” They numbered only a few and had “no power to be represented in those opinions here [in the Senate].” The “creed of the Republican party” did not accept, and “no paper of the Republican party . . . ever advocated the doctrine of the ultra-Abolitionists.” Henry Wilson openly acknowledged that some “radical abolitionists” did espouse the view that the Supreme Court could and should emancipate all slaves in America on the same ground that the Massachusetts Supreme Court had done, but he denied that the Republican Party shared that belief. James Doolittle rejected the argument of Lysander Spooner, who had said that the Constitution “of itself, abolished slavery,” that is, completely abolished it legally but not practically. In Spooner’s opinion, slavery’s continuance since the founding was, therefore, unconstitutional but unremedied. This argument, Doolittle announced, “has not, in my opinion, the shadow of a foundation.”55
Fessenden, Wilson, and Doolittle, among others, publicly disavowed the unconstitutionality of slavery before secession, when the nation felt the strain of possible disunion. It is difficult to know to what extent these disavowals reflected prudence rather than their true constitutional judgment. As party leaders and high officeholders in the government before the war, it seems plainly obvious that they would have destroyed the possibility of peacefully securing their aims had they publicly declared slavery’s unconstitutionality, as Spooner and some other abolitionists did maintain. From the point of view of political calculation, they would have gained nothing. It seems highly improbable that a court decision freeing slaves in Southern states could have been reached. If reached, it was not likely that the decision could be politically sustained. The political sustainability of prohibiting slavery in the territories by congressional legislation and placing slavery on the course of gradual extinction seemed prospectively more plausible. Notwithstanding the Republican Party’s avowals of that more moderate position, the victory of the presidential candidate from that party sufficed to precipitate Southern secession. Given that before the war the Southern statesmen were willing to secede at the victory of a moderate platform, prudence dictated that if the true constitutional judgment of some or many Republicans was that slavery was unconstitutional, they should keep those views silent. But amid the new political conditions changed by civil war, Josiah Grinnell hinted that he did believe in the unconstitutionality of slavery when he expressed the wish “to see slavery wiped out here by a legal decision and announced by a chief justice.”56 Although Grinnell did not mention the decisions of the Massachusetts and New Hampshire courts holding slavery unconstitutional, those courts supplied precedents. The Declaration and the Constitution were both organic laws of the United States in the federal code, and, read together, they supplied the same textual ground that the Massachusetts and New Hampshire courts used to declare slavery unconstitutional. The Constitution did not positively affirm the legal recognition of slavery, and the Declaration of Independence flatly collided with slavery.
If the Republicans believed that the founders deliberately placed slavery on shaky ground under their Constitution, the question remains why the founders did not employ or threaten to employ the federal courts to end slaveholding at a much earlier date. Isaac Arnold explained that the founders did not foresee slavery’s extension and that they thought “moral, legal, and constitutional means” would suffice to finish it off. They expected “public opinion” would render “its final verdict through the ballot” and “would consummate universal liberty throughout the land.” Many Republicans quoted a letter from George Washington to Robert Morris in 1786, in which he wrote, “There is only one proper and effectual mode by which [abolition] can be accomplished, and that is by legislative authority.”57 The Republican view was that the founders thought the wisest course was to frame organic laws that were hostile in principle to slavery and to tolerate slavery until the will of the people, through their legislatures, achieved final abolition. However, because the new breed of Southern statesmen, the proslavery oligarchs, had gained control of their state governments and exerted disproportionate influence over the national government, as the Republicans believed they had, the antislavery sentiments of the people, whose interests were harmed by slavery, could not bring about this conclusion.
The Federal Convention had attempted to weaken slavery in another way: by restricting the ingress of slavery into the territories. John Bingham said, “When the original draft of that great instrument was reported to the convention, the provision which authorized the admission of new States into the Union contained the expressive words that ‘new States may be admitted into the Union upon the same terms with the original States.’” The convention struck out the words of that clause, because the Constitution had reserved the power of continuing the slave trade to the original states for twenty years. By striking out that clause, the delegates foreclosed the possibility that newly admitted states might invoke constitutional authority to carry on the slave trade for twenty years, just as the original states were allowed to do. Foreseeing this possible interpretation, the “fathers of the Constitution were determined that no such privilege should be guarantied or extended to any new States organized under this Constitution and admitted thereafter into the Union. . . . These words were struck out purposely, that the new States organized thereafter should not come into the Union possessed of [that] power.”58
By its ordinary enactments, the early American government struck blows against slavery on the western territorial flank. As many Republicans did, John Hale held up the Northwest Ordinance of 1787, passed by the Congress under the Articles of Confederation and then reenacted by the U.S. Congress, which prohibited slavery from all territory the United States then owned. Jehu Baker added that when Congress framed the ordinance, governing the territory that became the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin, “every member of every slaveholding State voted” for it. Furthermore, when Congress “was five times applied to for a suspension of that portion of the ordinance which prohibited slavery,” Congress refused every time.59 Doolittle recalled one of these instances, when the Indiana Territory petitioned Congress during Jefferson’s administration. Virginian John Randolph, chairman of the special committee organized to consider the petition, reported against the request, saying it would be “highly dangerous and inexpedient to impair a provision wisely calculated to promote the growth and prosperity of the Northwest Territory.” Bingham referred to the enabling act passed by Congress and approved by President Jefferson in 1802, by which the Ohio Territory was invited to form a constitution and apply for statehood. The act qualified that invitation with the condition that the state government “shall be republican in form and NOT REPUGNANT to the [Northwest] Ordinance of July 13, 1787,” which prohibited slavery.60 Bingham then pointed to similar enabling acts, prescribing the same conditions for the Indiana Territory in 1816 and approved by President Madison and for the Illinois Territory in 1818 and approved by President Monroe. President Jackson approved of an act of Congress passed in 1836 that organized the Wisconsin Territory (which covered the future states of Wisconsin and Iowa) and that similarly required all that the Northwest Ordinance required, including the prohibition of slavery.
Thomas Eliot and Bingham cited a 1798 act of Congress that prohibited the foreign importation of slaves into the newly acquired Mississippi Territory, an 1803 act that prohibited slaves in the newly organized Indiana Territory, and an 1804 act that prohibited the foreign importation of slaves in the Orleans Territory.61 Such deeds, James Alley said, proved that “the avowed and determined policy” of “the fathers of the Republic” was to “make ‘freedom national and slavery sectional,’” a policy that “met with little or no opposition North or South.”62
With respect to the provision in the Constitution that barred Congress from prohibiting the slave trade until 1808, Gooch refuted proslavery statesmen, who had argued that the provision “recognizes and provides for the existence of slavery.” He claimed, “Just the reverse is true.” Every one of the thirteen states, he observed, “had the power to continue the slave trade as long as it might please,” but “yielded up that power to a Government which they knew would suppress it as soon as it had authority to do so.” Therefore, the provision showed that “the United States Government was intended and expected to be hostile to slavery and the slave trade. That power was exercised by this Government at the earliest possible moment.”63
Furthermore, before the expected ban on the slave trade, other means of frustrating the trade could be and were employed. Although Madison regretted the postponement to 1808, as Cadwallader Washburn noted, he nevertheless predicted that the trade would receive “considerable discouragement from the Federal Government.” Madison foresaw that “the prohibitory example which has been given by so great a majority [of states] of the Union” might pressure the “few states which continue the unnatural traffic.” In fact, many states did abolish the trade prior to 1808, and as a member of the early Congress, Madison acted to lead the federal government in discouraging the trade that remained. Representative Justin Morrill of Vermont recalled that “Madison and many other southern men in Congress” had tried to hamper the trade by imposing a tax on imported slaves prior to that year, when some states still allowed slave importations. But on January 1, 1808, the first year that the Constitution permitted Congress to ban the importation of slaves, the law banning the trade “was already on the statute-book.” By banning the trade, argued Thomas Shannon, “no new additions were to be made to the stock of slaves then in the country, and it was believed that gradually and without a jar to the Federal system it would become extinct.”64
Having hemmed in slavery, denying it replenishment from the eastern ocean, denying it an outlet in the West, and having abolished it in most of the original thirteen states, the founders believed they had cornered and doomed slavery. The Republicans quoted the founders’ approving predictions of slavery’s final demise. Henry Wilson quoted Oliver Ellsworth in the Federal Convention, who predicted that “slavery would soon be only a speck in the country.” James Doolittle and Waitman Willey quoted a 1798 letter from Washington to Lafayette in which he discussed the antislavery effect of the Northwest Ordinance, predicting the eventuality of “a confederacy of free states.” Cadwallader Washburn quoted a 1785 letter from Jefferson to Dr. Price, in which he predicted emancipation in Virginia, “the next State to which we may turn our eyes for the interesting spectacle of justice.” Washburn and Willey quoted an 1814 letter from Jefferson to Edward Coles, in which he said, “The hour of emancipation is advancing” and predicted that it would not “fail to prevail in the end.” Reuben Fenton, Doolittle, and Washburn quoted a message from Jefferson in 1821, in which he said, “Nothing is more certainly written in the book of fate, than that these people are to be free.”65 Many quoted Patrick Henry’s 1773 letter to Robert Pleasants, in which he predicted, “I believe a time will come when an opportunity will be offered to abolish this lamentable evil.”66
“The old fathers,” John Farnsworth said, “who made the Constitution,” and who “fought the battles of the Revolution, fought for the rights of human nature, and they believed that slavery was at war with human nature.” In framing “the Constitution upon such a base, they believed that slavery would die, and that speedily.” Isaac Arnold claimed it was “historically demonstrable that the framers of the Constitution in organizing the Government tolerated the existence of slavery as a temporary evil which they believed was in the course of ultimate extinction. They never intended it should be extended beyond the limits of the States in which it then existed.” Due to the strength of antislavery sentiment and statesmanship during the founding era, “Then, slavery was expected to speedily die out,” according to Justin Morrill. James Ashley maintained that the founders “confidently expected” that “with the adoption of the Constitution slavery would cease to exist.” Daniel Morris averred that the founders “expected it would become extinct under the workings of the Constitution.” Reflecting on the principles and deeds of the founding generation, Daniel Clark asked, “Was slavery to die out? So said and so I think believed the fathers.”67
Constraints on the Republican Fathers
The founders’ “toleration of slavery,” Charles Sumner said, was “absolutely exceptional” to their republican ideas and political establishments. If the founders believed that slavery was inconsistent with and posed a great danger to their republicanism, why did they tolerate the exception of slavery at all? As Daniel Clark remarked, why hadn’t the founders’ Constitution explicitly “provided for its gradual extinction in the old States and its utter exclusion from the new”? When the Republicans surveyed why the founders had not done more to annihilate slavery, their discussions pointed to a common answer: South Carolina and Georgia. Although slavery was common to all the states at the moment of national independence, and although other states contained higher numbers of slaves, slavery’s influence on those two political societies was different. Slavery appeared to have always been more deeply embedded in their political character. Those states in particular, said Representative Burt Van Horn of New York, had always “been opposed to republican government.” They joined the Union and assented to its principles, not because they believed those principles were right but to satisfy other interests.68 From the beginning, South Carolina and Georgia fitted uncomfortably into the Republic.
The representatives of South Carolina and Georgia successfully opposed the slave-trade proscription in the first draft of the Declaration. Jefferson’s draft reported to the Continental Congress included reproaches of the British king for sanctioning the slave trade. The text, quoted by Cadwallader Washburn, James Doolittle, John Henderson, and other Republicans, denounced the trade but, they argued, was equally applicable to slavery, describing the trade as “cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people.” It emphasized that these persons were not chattel but “men” and referred to their captures as “crimes committed against the liberties of one people.”69 In Henry Wilson’s account, the representatives who won the exclusion of that language came from “a small but powerful class, which clung, in South Carolina and Georgia, with relentless tenacity, to the British slave-trading and slave-extending and slave-perpetuating policy.” Those states had already “broken the second article of the association of union, which prohibited the importation and the traffic in slaves.”70
Those states had also exhibited unusually strong pro-British sympathies during the Revolutionary War. Charles Van Wyck recounted that Tories in South Carolina and Georgia furnished sufficient numbers of soldiers to open “a new seat of war” in the conflict. Endeavoring to make some show of courtesy and avoid naked imputation, he paid tribute to the remembered patriots of that section, mixing praise for them with the claim that most were Tories who had not fully embraced the revolutionary cause for republicanism. Those Tories’ “descendants are numerous on that soil,” Van Wyck claimed, and “with their blood seem to have descended their principles.” Francis Kellogg dubbed South Carolina “famous for Tories and traitors in our Revolution.” During the Revolution, Representative George Julian claimed, South Carolina “swarmed with royalists and [T]ories.” The Carolinians who fought for the American Revolution were aristocrats who fought for their political interests and not for the principle of the struggle, for, “like the rebels now in arms against us,” they “loved slavery more than they loved their country.” “In South Carolina,” James Garfield said, “it is claimed that there were more Royalists than Whigs,” that is, more Tories than revolutionary patriots.71
With characteristic thoroughness, Charles Sumner presented research in 1854, showing that South Carolina had lagged in supporting the revolutionary cause. He did this in rebuttal to a senator from that state who had attributed the success of American independence to slaveholding. Sumner viewed this as an attempt to rewrite history, adding the weighty reputations of the revolutionary patriots to the effort to extend and protect slavery. During the course of his remarks, Sumner mentioned that, in 1790, the War Department, administered by General Henry Knox, produced a report by the order of Congress on the relative contributions of men to the army during the war. Although the 1790 census showed an equality of population between northern and southern states, northern states furnished three men to the Continental army for each man furnished by southern states and four men to the militia for each man furnished by the southern states. “But the disparity swells,” Sumner continued, when comparing Massachusetts to South Carolina. Of Continental troops and authenticated militia, Massachusetts furnished 83,092 men, while South Carolina furnished 5,508 men, a difference of 16 to 1. In 1778 the regular troops in the southern department of the war were supplied by South Carolina and Georgia and numbered 800 men. The next year, the South Carolina governor offered a proposal to the British to make his state neutral. Washington sent General Nathanael Greene, a Rhode Island native, to rescue that section of the country. Greene reported, “The Whigs seem determined to extirpate the Tories, and the Tories the Whigs. . . . If a stop cannot be soon put to these massacres, the country will be depopulated in a few months more, as neither Whig nor Tory can live.”72
After Sumner’s presentation, an acrimonious debate ensued in both houses of Congress regarding South Carolina’s conduct in the Revolution, a debate that renewed in 1856. At that time, Henry Wilson entered the field, drawing evidence from the testimony of both Continental army officers and Carolina authorities. Whereas Bostonians forced the British to realize they were not safe in Massachusetts, “where friends always find a welcome, and foes are apt to find a grave,” the British settled comfortably in Charleston. They were well provisioned and unmolested by the city population, while Greene’s army was starving in the country. South Carolina “had a large class of Tories. There was a civil war in that State, and more than that, thousands and tens of thousands of her sons sought protection by the British flag.” Wilson quoted Greene, who had said that Carolinians exhibited “far greater attachment to their interests than zeal for the service of their country.” At another time, Wilson quoted the testimony of South Carolina patriot Francis Marion. When Baron DeKalb “expressed amazement that so many ‘South Carolinians were running to take British protections,’” Marion answered, “The people of Carolina form two classes, the rich and the poor. The poor are very poor: the rich, who have slaves to do all their work, give them no employment. Unsupported by the rich, they continue poor and low-spirited.” The poor were uneducated; “hence, they know nothing of the comparative blessings of our country, or the dangers which threaten it; therefore, they care nothing about it. The rich are generally very rich; afraid to stir lest the British should burn their houses, and carry off their negroes.” Marion explained that “ignorance begat toryism” in Carolina, against which he contrasted New England and its republican people. There, “Religion had taught them . . . that virtue is not to be attained without knowledge; nor knowledge without instruction; nor public instruction without free schools.” The abundance of Tory sympathies and indifference to the wrong of slavery reflected the fact that the population of South Carolina, both rich and poor, generally lacked New England’s republican character. Waitman Willey concurred with Wilson. In South Carolina during the Revolution, he said, “The attachment of the people to aristocratic institutions of the mother country was the hardest to subdue. This attachment was never wholly extinguished.”73
James Garfield and William Kelley distinguished South Carolina’s unrepublican character from all the other states, free and slave alike, in another respect: the state’s opposition to free black suffrage. When the Continental Congress discussed the Articles of Confederation in 1778, the fourth article came up for debate. It said, “The free inhabitants of each of these States . . . shall be entitled to all privileges and immunities of free citizens in the several states.” South Carolina moved to change the text of the article from “free inhabitants” to “free white inhabitants.” Congress voted down the motion. Kelley recalled this event as well as the South Carolina delegates’ persistence. Having lost the vote, they moved to amend the text in another way, replacing “the several states” with “according to the law of such States respectively for the government of their own free white inhabitants.” The Congress defeated this motion as well. Through the Revolutionary War and the adoption of the Constitution in 1788, only South Carolina’s state constitution “refused the right of suffrage to the negro.” Kelley quoted from the revolutionary-era state constitutions, which did not acknowledge color in providing for suffrage, and contrasted the South Carolina Constitution, which began its suffrage qualifications with the statement “every free white man.” Garfield observed that between 1789 and 1812, “Congress passed ten separate laws establishing new Territories,” and in all of them, “freedom, and not color, was the basis of suffrage.” This changed in 1812 when South Carolina successfully led the insertion of the word white in the “suffrage clause of the act establishing a territorial government for Missouri.” While most states, slave states included, had not acknowledged color as a precondition of suffrage, South Carolina always had.74
John Henderson distinguished South Carolina and Georgia’s policies toward slavery from all other states at the time of the Constitution’s adoption. Virginia held about half of the nation’s five hundred thousand slaves. Three-quarters of the remaining number were distributed equally among Maryland, North Carolina, and South Carolina. Virginia had resisted the British slave-trade policy and, as a new state, had immediately abolished it. Maryland and North Carolina had also prohibited the further importation of slaves. Georgia had resisted slave importations during the colonial period but, due “to the clamor of a few,” had changed policy. When the Constitution was adopted, Georgia still had few slaves, about the same number as New York. Though Georgia and South Carolina together contained 20 percent of the slaves owned in all the states, they alone “seemed determined on retaining it as an institution.”75 In convention, representatives from Virginia, Maryland, and North Carolina all spoke against slavery and the slave trade, which they wished to see immediately abolished by the Constitution. But Charles Pinckney, C. C. Pinckney, and the Rutledges, all of South Carolina, as well as Abraham Baldwin of Georgia, all contended that their states would not ratify the Constitution if it abolished the slave trade. Oliver Ellsworth and Roger Sherman of Connecticut palliated the convention’s dislike of leaving the slave trade intact, both men observing that slavery was becoming extinct. The committee considering the question recommended allowing the trade until 1800 and allowing a tax on imported slaves. C. C. Pinckney successfully pressed the convention to extend the year from 1800 to 1808. This was accepted, but after the Constitution’s ratification, all the states but one banned the slave trade on their own. The notable exception was South Carolina, which kept its ports open to American slave buyers and to shipments of new victims from 1803 to 1808, importing up to one hundred thousand additional slaves by some estimates. The South Carolina and Georgia delegations also persisted in making “representation partially based upon wealth, making it a controlling power in the Government.” But they won representation for a specific kind of wealth: not gold, spinning looms, or whaleboats, but persons who were not free citizens. These would be enumerated by the three-fifths ratio for calculating apportionment of congressional seats to the House of Representatives. Butler of South Carolina moved the provision for the rendition of fugitive slaves, which was “adopted without protest or even remark by the northern members.”76
The Republicans widely concurred that South Carolina and Georgia forced the convention to adopt those provisions. Under pressure from those states, “our fathers in an evil hour compromised,” Richard Yates declared. Senator Samuel Pomeroy of Kansas remembered that “Georgia and South Carolina refused to come into the Union until there had been secured three compromises for slavery.” They compromised, Glenni Scofield said, and tolerated slavery “with the understanding that it should be gradually relinquished. They did not expect both ideas, slavery and freedom, to go hand in hand throughout the whole life of the Republic. Slavery was to recede slowly and freedom follow steadily.” Whether their predilections were reasonable or not, the founders saw the direction of events pointing toward abolition. But why await the working out of justice? Why not risk the refusal of South Carolina and Georgia to ratify the Constitution? Charles Sumner approvingly quoted the Boston Recorder, which answered this question, saying “Our noble fathers submitted only because without them we could have no common national existence.” More skeptical than Sumner, Daniel Morris said that “our fathers permitted slavery from a supposed necessity,” a necessity supposed and not real. The fathers’ toleration of slavery in submitting to the supposed necessity “was their first error.”77 But Republicans did generally agree that the fathers believed in the wisdom of compromise with South Carolina and Georgia, which depended on the soundness of their judgment that slavery was passing away.
By submitting to the demands of those states, the founders allowed the introduction of inconsistency in the Constitution. Daniel Clark acknowledged that Madison, “with scrupulous care, excluded the word ‘slave’ from the Constitution, but by a fatal mistake allowed the thing itself to remain. He chased away the shadow, but left the substance, with the same fatuity that would induce a parent to call an asp or scorpion a pretty bird, and leave it to sting his offspring to death.” Slavery’s “name was not in the instrument, but her power was there.”78
In other words, the constitutionality of slavery mattered less than the effect of the Constitution’s toleration and protection. By the effect of its provisions, slavery received protection and was thereby practically recognized, even if indirectly so. Clark admitted that Madison and the convention did not concede these provisions with the intention of securing the perpetuity of slavery, for “he and his compeers thought slavery would gradually die out.” Their error consisted in underestimating “the terrific vitality of the fiend which should so grow and strengthen.” If slavery had not possessed this “terrific vitality,” slavery might have died as the founders expected, and the provisions protecting the interests of slave owners would eventually have protected the empty air. On the contrary, the provisions protecting slave owners’ interests allowed the “terrific vitality” to operate, with the result that slavery’s growth overcame its checks. The founding generation’s antislavery legislative acts, which reflected their confidence in slavery’s ultimate demise, did not contain slavery. The Constitution’s provisions permitted slavery’s increase and amplified slavery’s “voice and her votes,” which “have been of signal potency.” Slavery “gained at a bound the legislative hall and ever since has sat and hissed and writhed about the nation’s limbs.”
Since the founders had expected and desired that legislative authority, rather than court authority, would achieve final abolition, they opened the future to the hazard that proslavery advocates might arise and control legislative authority. Rather than act to abolish slavery, legislators might act to extend it. This possibility became reality because they had underestimated the “terrific vitality” of slavery, which exploited the Constitution’s provisions. Possessing power over the government out of proportion with their numbers, the advocates of slavery could advance it and even assert constitutional recognition of slavery, whether a fair reading of the Constitution or the writings of its framers warranted those positions or not.
The Constitution might not have recognized the right to hold a slave, but how it stood on that question was immaterial. The Constitution allowed slavery to gain power, with which it could destroy the Constitution and republicanism. When the founders “admitted into the charter of free government the idea of human bondage,” they placed “two warring forces” into the Constitution. These forces could not coexist. Clark declined to “call to account or blame the founders of this Government,” for “they were wise and patriotic men” who “had great difficulties to contend with” and “did the best they could.” Nevertheless, the hard truth was that slavery owed “its giant growth to the Constitution.”
Hence, the Republicans saw that the insistence of South Carolina and Georgia statesmen during the founding era fatally exposed republicanism to eventual overthrow.
The Passive Expansion of Slavery
The Republicans generally did not recall noisy opposition to the entrance of new slave states prior to Missouri’s application to enter the Union as a slave state in 1819. But neither did they recall any statesman advocating slavery’s expansion on principle. In relative quiet, slavery expanded its domain under the U.S. government, quickly breaking out of its bands established by the founding generation’s legislation. In the meantime, economic changes began to strengthen slaveholders’ interest in protecting slavery. Scofield aptly represented Republicans’ historical perspective on this period when he averred, “Territorial acquisitions and certain discoveries in the material arts, as it is said, changed the attitude of slavery altogether.”79 By the time attitudes in public councils changed, slaveholders felt their augmented power.
Kentucky was, in the words of Daniel Clark, “the first-born slave state.” It was the first slave state admitted to the Union in 1792, only a few years after the adoption of the Constitution. Virginia had previously held both Kentucky and the Northwest territories as its own, and slavery was tolerated in both. The difference between the territories was that Kentucky bypassed status as a U.S. territory before becoming a state. The Northwest territories became territories of the United States, and under the Northwest Ordinance, which governed all U.S. territory, slavery was prohibited. However, Virginia continued to hold Kentucky until, by simultaneous action, Virginia released its claim and Congress admitted Kentucky as a state. At the time of statehood, abolitionist sentiments did curry favor in Kentucky. In preparation for applying for statehood to Congress, Kentucky delegates met in convention to frame the state constitution and nearly abolished slavery. Arnold wrote, “An effort was made to prohibit slavery which came near being a success, and which would have prevailed, but for the powerful influence of the two great slaveholding families of Breckenridge and Nicholson.” As a result, Kentucky’s future political character was sealed. Arnold added to his account that the Breckenridge who saved slavery in the Kentucky Constitution was the grandsire of John C. Breckenridge, a secessionist. Clark maintained that there was “no State among the non-seceding States so wedded to this institution [of slavery] . . . , halting in her patriotism, limping in her support of the Government, divided betwixt her love for the Union and her love for slavery” than Kentucky.80
The next slave state to enter the Union, Tennessee in 1796, did exist as a U.S. territory prior to admission. But as Jacob Collamer and John Bingham noted, North Carolina ceded the territory of Tennessee to the U.S. government on the condition that slavery be permitted during its territorial status.81 Henry Wilson claimed that Congress accepted this conditional cession “with more or less reluctance to the hard conditions imposed.”82 Nevertheless, in preparing for application for admission as a state, Tennessee delegates met in convention to frame the state constitution and, as in Kentucky, nearly abolished slavery. According to William Kelley, the provision prohibiting slavery in the state constitution lost by a majority of one vote, but the convention did not impose a color barrier on suffrage. Free blacks could vote. Kelley did recount Tennessee’s contingent relation to slavery after its statehood. Fewer than five thousand slaves lived in Tennessee upon admission, a lesser number than in some northern states then abolishing slavery. In 1801 the legislature “conferred the power of emancipation upon the county courts of the State” to ease the restrictions on private manumissions. From 1790 to 1810, however, slave numbers had increased to forty-four thousand. This precipitated the formation of Tennessee emancipation societies. In 1812 antislavery citizens prevailed upon the state government to prohibit the ingress of slaves from outside the state. To show the spirited opposition to slavery in the state, Kelley quoted from an 1817 emancipation society publication, “alluding to the great doctrines promulgated in the Declaration of Independence.” It declared that “every law passed by Legislatures in favor of slavery is in direct opposition to the principles of our national existence.” But when the delegates met in convention in 1834 to revise the constitution, “the slaves in the State numbered more than one hundred and fifty thousand.” Correspondingly, “the power of the slave oligarchy had increased.”83 That convention rejected emancipation petitions from sixteen counties and, in addition, revoked the right of free blacks to vote.
In 1798 the U.S. House of Representatives considered legislation for the Mississippi Territory, held by Georgia but not yet ceded. Jacob Collamer and Henry Wilson both noted that slavery had already entered that territory before the Georgia cession. Nevertheless, the House acrimoniously debated prohibiting slavery, as the Northwest Ordinance had done. The leading proponents of slavery prohibition invoked the principles and purposes of the American founding in support of their measure. Notably, none of the opponents, though hotly contesting the prohibition, disputed the applicability of those principles or claimed the rightfulness of slavery. Georgia eventually followed North Carolina’s example in ceding the territory on the condition that slavery not be prohibited, although Congress did prohibit the foreign importation of slaves.84 Despite that interference, both states formed from that territory, Mississippi in 1817 and Alabama in 1819, entered the Union as slave states. When France ceded the Louisiana Territory to the United States in 1803, James Doolittle observed, slavery already existed there, protected by French law. Again, Congress interfered with slavery, forbidding the ingress of slaves for sale from domestic and foreign origins.85 But again, despite that interference, when Congress admitted the state of Louisiana into the Union, in 1812, slavery came with it.
By 1819 Congress had admitted five new slave states: Kentucky, Tennessee, Louisiana, Mississippi, and Alabama. Somehow, despite the antislavery convictions of the leading founders and of the age, slavery spread. The Republicans did not inquire much into the reason for this relatively uncontested expansion beyond causes particular to each case, but Henry Wilson suggested one general reason. In the Mississippi Territory debate in 1798, Representative William Giles of Virginia argued that by allowing the introduction of slaves into western territories, “and thus spread themselves over a larger territory, there would be greater prospect of ameliorating their condition.”86 This conjecture assumed that due to the imminent end of foreign slave importations, the numbers of slaves in the nation would do no worse than hold constant. If that constant number were spread over a larger area, slavery would become rarer, and the malign effects of slavery on the slave and on the surrounding republican political society would become evanescent. The number of slaves would decline, denuded by private manumissions and public emancipations. Eventually, the beneficent forces of republican society would cause the last bonds of slavery to drop away. This expectation rested on secondary assumptions that slaves’ fertility rates would not exceed the replacement of those manumitted and emancipated and that the ban on the slave trade would be enforced. Such confidence encouraged a less guarded care for which districts in the United States did or did not tolerate slavery. Giles had advanced an antislavery argument for the toleration of slavery everywhere.
The Republicans pointed to this period as that during which the slave states were undergoing fundamental change, that is, when the power and ambitions of oligarchy were quietly gestating. The most important event that accelerated this change was a historical accident. Eli Whitney’s invention of the cotton gin at the end of the eighteenth century allowed cotton cultivation over greater parts of the slaveholding states and created the demand for more slaves. Prior to that invention’s industrial application, John Farnsworth said, “Our forefathers were imbued with the spirit of freedom, emancipation—abolition, if you please,” and from that beginning, “we took our departure.” But “men became greedy and avaricious. The invention of the cotton gin . . . made it profitable to raise men and women for the southern market.” After that, “the greed for power took possession of the slaveholders.” Representative Nathaniel Smithers of Delaware claimed that “the invention of the cotton-gin gave a fresh impetus to [slavery’s] expansion, and by rendering it more valuable, stimulated its growth.” By “estimating his pecuniary advantages,” the slave master “lost sight of the wrong.” The “cupidity of the master” overwhelmed his conscience.87 In a public speech to his constituents, Representative Henry Deming of Connecticut declared, “The invention of Whitney adjusted the social position and relations of our Southern brethren, more decisively, than their cotton-perfecting soil and climate.”88 That is, the social position and relations of Southerners changed from what they were before, and all the Republicans knew that revolutionary oligarchy was the result. Senator Timothy Howe of Wisconsin said that “Eli Whitney manufactured the cotton-gin, and the cotton-gin manufactured the rebellion a great many years afterwards.” He drew his authority, in part, from the 1807 opinion of Supreme Court justice William Johnson, serving as judge of the U.S. Circuit Court in the District of Georgia, in a case concerning Whitney’s patent. Johnson had written that the invention changed “the whole interior of the southern States.” People “depressed in poverty . . . have suddenly risen to wealth and respectability. Our debts have been paid off, our capitals have increased, and our lands trebled themselves in value.” The extent of the value of the gin “cannot be foreseen.” To show the extent of the gin’s impact, unforeseen in 1807, Howe read the remarks of their recently departed colleague Senator Louis Wigfall of Texas, who had twice proclaimed that “Cotton is King!” in speeches intermixed with threats of secession.89 Then Howe concluded:
If the cotton-gin had not been invented slaveholding would not have been profitable. If slaveholding had not been profitable, slaveholders would not have been rich. If slaveholders had not been rich they would not have been arrogant. If they had not bean arrogant four hundred thousand slaveholders would not have presumed to challenge dominion over twenty million freemen. Slavery without the cotton-gin would have been a monster wrong, but it would not have been dangerous to the Republic. The cotton-gin without slavery would have been of twice the value it has been and still would not have been dangerous to any one.
Isaac Arnold also principally blamed the cotton gin for interrupting the effect of “peaceful agencies” that “would have soon made the republic all free.” The application of the gin created “immediate and enormous profits of cotton growing,” which “gave a power to slavery never before felt.” Consequently, “a powerful cotton and slave aristocracy soon grew up,” founded on an “immense property interest invested in the production of cotton, owning lands and negroes.”90
Even in slave states where cotton could not be cultivated, the effect of expanded cotton culture was felt. Slave breeding became more profitable than freeing slaves and employing them. The economic interests of non-cotton-cultivating slave states incentivized them to push for the extension of territories tolerating slavery. Thaddeus Stevens vividly illustrated this point in 1850, in response to Representative Richard Meade of Virginia. Meade had argued for permitting slavery in the territories because the value of Virginia’s slaves depended on demand. “Let us pause,” said Stevens, “over this humiliating confession.” He continued:
In plain English, what does it mean? That Virginia is now only fit to be the breeder, not the employer, of slaves. . . . Instead of attempting to renovate the soil, and by their own honest labor compelling the earth to yield her abundance; instead of seeking for the best breed of cattle and horses to feed on her hills and valleys, and fertilize the land, the sons of that great State must devote their time to selecting and grooming the most lusty sires and the most fruitful wenches, to supply the slave barracoons of the South! And the learned gentleman pathetically laments that the profits of this genteel traffic will be greatly lessened by the circumscription of slavery!91
Due to the cotton gin, the increased marginal gains to slavery’s investors sufficed to erase the economic attractions of republican society. As Howe pointed out, the gin would have earned cotton cultivators more money without slave labor, but the increases with slave labor sufficed to end their contemplation of the alternative. In sum, the Republicans’ argument showed that cotton profits saved slaveholders from being forced, by economic want, to consider how to adjust to a slaveless republican society. With cotton profits, the economic allurements of republican society diminished. While slavery might impoverish the countryside generally, it could simultaneously enrich the few. To protect their gains from the votes of the many they impoverished, the few needed to monopolize political power. Fortune handed domestic tyranny a powerful economic incentive to strengthen itself politically and, in turn, to rule over all of society, not just their own estates.
In the period before the Missouri controversy in 1819–20, these economic influences were restructuring slaveholding society, while the antislavery elements showed signs of overconfidence. To mark how unaware of these changes the founding generation was, Isaac Arnold pointed out that when abolitionist founder John Jay “negotiated what is called ‘Jay’s treaty,’ with England in 1794, he did not know that cotton was an article of export, so small was then the quantity of this staple product.” From the adoption of the Constitution to the end of the War of 1812, Wilson wrote, slaves “had doubled in numbers and increased at least fivefold in value.” The demand of cotton cultivation stimulated the domestic slave trade and a black market of smuggled slave importations, annually amounting to several thousand. By that time, “the South, then under the complete control of the slave-masters, was gaining a like ascendancy over the Federal government, and a dominating influence over the non-slave-holding states.”92
The Missouri Controversy
From the Republican point of view, the crisis in the 1850s dubbed the “house divided against itself” or the “irrepressible conflict” by Lincoln and Seward, respectively, was the later eruption of a chronic crisis that began with the Missouri controversy of 1819–20. The struggle decided whether Missouri, and future states carved out of the Louisiana Territory, would come into the Union slave or free. In their shorthand expressions, the Republicans typically described the conflict as between slavery and freedom, sectionally arrayed and equipoised against each other. But knowing the effects of slavery, the Republicans understood, just as they believed the actors in the Missouri drama and subsequent territorial struggles understood, that the stakes included but exceeded what territories would tolerate slavery in the future. They saw that the Missouri controversy inaugurated an interregime conflict between maturing oligarchy concentrated among the slave states and maturing republicanism among the free. The United States was tearing apart along an interregime divide, the same line dividing the domains of freedom and slavery. The competition for the character of the territories, free or slave, was also a competition for the soul of the nation and for the character of its political regime, oligarchic or republican.
They remembered that the controversy surprised the American people. James Blaine recalled, “Suddenly, without warning, the North and the South, the free States and the slave States, found themselves arrayed against each other,” and this “marked a distinct era in the political thought of the country, and made a profound impression on the minds of patriotic men.” The nation learned that “between the adoption of the Federal Constitution and the admission of Missouri, there had been a great change in the Southern mind, both as to the moral and the economic aspects of slavery,” and this was due to the quiet increase in the productive cultivation of “the cotton-plant.”93
Benjamin Wade remembered, when he was a young man, “how anxiously the people of that part of the country to which I belong looked to the progress of that question through Congress. I remember the fearful struggle that took place between the different sections of the country, and how anxious our forefathers were lest it should prove utterly disastrous to the union of the States which they then cherished.”94 Wade’s recollection that the struggle arrayed sections against each other showed that Southern statesmen had been transforming themselves from slaveholding abolitionists, allied in the effort to blot out slavery, to sectional advocates for the advance of slavery. This placed a strain on the Union between free and slave states that caused anxiety for Wade’s people. But the people of the states of the former Northwest Territory, like Wade’s Ohio, had another reason to be anxious. Many of them, having escaped the domain of slavery, shared a special reason to have sympathy for westward-traveling settlers.
From an analysis of census data, Jacob Collamer showed that more native-born Virginians who had emigrated settled in free states than in slave states, and many of these Virginian and other slave-state emigrants settled in the states of the former Northwest Territory. Senator Oliver Morton of Indiana wrote that his state had probably “a larger proportion of inhabitants of Southern birth or parentage . . . than any other free state.”95 These people had, Collamer said, removed to free states so that they would “not lose position by caste”; that is, they relocated to a domain where they would become equal members of political society. These slave-state emigrants were seeking to settle in republican political society. Collamer quoted the early debates in the Virginia House of Delegates, in which “those gentlemen say their free white population, who are degraded by labor in a slaveholding country, are fleeing.”96 But as slavery spread, nonslaveholding free people would have fewer places to find refuge from oligarchic rule.
Charles Sumner reviewed events from the onset of conflict in the 1819 Congress to the enacted compromise in 1820. In February 1819, James Tallmadge of New York proposed an amendment to a reported bill, enabling Missouri to apply for statehood. At that time, the slave states of Kentucky, Tennessee, Louisiana, and Mississippi had already been added to the Union, and Tallmadge’s amendment ensured that Missouri would become free. Counteramendments, negotiations, and a bitter floor debate followed. In the meantime, a pending bill to organize the Arkansas Territory with slavery was enacted and aggravated the ongoing slavery debate in connection with Missouri. In the same session, Alabama was admitted as another slave state. These two new victories for slavery attended the end of the Missouri question, when a majority voted for a compromise. Congress restricted slavery from above the southern border of Missouri at 36°30´ and allowed slavery below that line.97
The concession to slavery below that line conspicuously broke from the free-soil policy of the founders in 1787, a policy that had already been breached in the interim without national uproar. The compromise replaced that former policy with a new one, equidivision of new territory between freedom and slavery. That concession to slavery, Sumner said, “was justly repugnant to the conscience of the North, and ought never to have been made.” But it was only by that concession that the Union was preserved, as Sumner’s remarks made clear. The nation learned that a class of determined advocates of slavery’s extension, unknown among the founders, had risen in the land. Before the Missouri controversy, Americans might have lightly regarded the significance of the admittance of Kentucky, Tennessee, Louisiana, and Mississippi as slave states by reason of exceptional circumstance. But during the Missouri controversy, they now learned, in the words of Sumner, that “the original policy of our Fathers in the restriction of Slavery, was suspended, and this giant wrong threatened to stalk into all the broad national domain. Men at the North were humbled and amazed. The imperious demands of Slavery seemed incredible.”98 The slave statesmen’s power now forced the advocates of freedom to give them title to half the nation’s territory. The new character of slave-state statesmen gave an indication that political society in the slave states was changing.
John Bingham explained that the reason members of Congress fought equally hard for the restriction north of that line was that they “doubtless felt, and knew, that slavery was subversive of the ends of all free government, a violation of justice and of the rights of the enslaved, and contrary to the spirit of our free Constitution.” In addition to knowing slavery’s wrong and hostility to the Constitution, they knew and felt its effects on republican government. That they “knew” these things but also “doubtless felt” them refers to their firsthand experiential knowledge of slavery’s effects and character. Specifically, the antislavery congressmen “knew, that in the wrong in which this institution has its inception, there was no law to restrain the enslavement of all classes and races of men; that the brute force, by which the inherent rights of the black race had for centuries been cloven down, was not likely to be restrained from inflicting like cruelties and oppressions upon the white race.”99 Those who were neither masters nor domestic slaves, the free whites, would also become slaves after a certain kind—a vassal class—wherever slavery was planted.
This accounted for why Benjamin Wade could still remember “how anxiously” his people in Ohio followed the course of the conflict in Congress. When Congress adjourned with the settlement of the Missouri question still pending, Sumner recalled, “The whole subject was adjourned from Congress to the people. Through the press, and at public meetings, an earnest voice was raised against the admission of Missouri into the Union without the restriction of Slavery. Judges left the bench, and clergymen the pulpit, to swell the indignant protest which went up from good men, without distinction of party or of pursuit.” In public meetings at Trenton, New York City, Philadelphia, Baltimore, and the Massachusetts cities of Worcester, Salem, and Boston, Sumner noted, the people organized. Memorials, petitions, and prayers were sent from villages and towns against the admission of Missouri as a slave state, and like resolutions were enacted by the legislatures of New Jersey, Delaware, Ohio, New York, and Indiana. The legislature of Pennsylvania “unanimously asserted at once the right and the duty of Congress to prohibit Slavery west of the Mississippi, and solemnly appealed to her sister States ‘to refuse to covenant with crime.’”100
Among the outraged in the nation were some members of the politically declining category of slaveholding abolitionists. Nathaniel Smithers of Delaware recalled how his slave state responded to the Missouri controversy: “A resolution was adopted by the General Assembly with entire unanimity in the House of Representatives and with but two dissenting voices in the Senate, declaring that in the admission of any State into the Union, it was not only the right but the duty of Congress to require, as an inviolable condition, the fundamental provision that it should forever thereafter be free from slavery.”101
Representative Aaron Cragin of New Hampshire remembered that “a very large majority” of the free states’ representatives refused to vote for the compromise measures, not because they opposed the restriction above 36°30´, but because they opposed the admission of Missouri as a slave state. For these Northerners, slavery had extended far enough, and they were unwilling to exchange the founders’ free-soil policy for a divided-land policy. The compromise, Cragin said, “was generally regarded as a southern victory,” and he brought out the contemporaneous writing of Charles Pinckney of South Carolina to demonstrate Southern exultation. “We have carried the question,” Pinckney wrote, that will “give the South, in a short time, an addition of six, and perhaps eight members to the Senate of the United States. It is considered here, by the slaveholding States, as a great triumph.”102 Continuing, he represented the loss of the territory north of the compromise line to slavery restriction as no loss, since it was a “vast tract, uninhabited.” Pinckney was one of the members of the South Carolina delegation in the constitutional convention of 1787 who had insisted upon the extension of the slave trade, and the Republicans remembered him apart from the majority of the southern founders. Unlike the majority, he was not a slaveholding abolitionist.
The remarks of Cragin and the Republicans on the Missouri controversy pinpointed that conflict as the moment when the nation knew that the character type of the slaveholding abolitionist statesman, acting in favor of a completely free republic, was fading. Instead, the new generation of Southern statesmen was following the example of statesmen like Pinckney, who was partial to spreading and increasing the incubus. The changes that the slave states were undergoing appeared to be following the model of South Carolina.
They saw that the entrance of Missouri as a slave state changed the strategic equilibrium between slavery and freedom, oligarchy and republicanism. In Congress, Isaac Arnold reflected, “to the thoughtful observer,” the conflict between the Northern democracy and “a ruling class with power based on slavery . . . was early seen to be ‘irrepressible.’” The Missouri controversy was the “earliest important exhibition of this ‘irrepressible conflict,’ after the adoption of the Constitution.” As a thoughtful observer, the “philosophic statesman” could see the irrepressible conflict brewing and could only hope the conflict would be peacefully resolved. The Missouri events, however, were filled with evil portents. Later, Arnold wrote that the strategic importance of Missouri “was not fully appreciated by the free States at that time.” The entrance of Missouri into the Union as a free state would have precluded the irrepressible conflict. Missouri commanded “the centre of colonization” in America. If Missouri had been a free state, “free labor would have passed along the valleys of the Mississippi, the Missouri and the Arkansas to the West, and to Northern Texas. As a slave State it crowded off the current of free labor to the Northwest. By this success the slaveholders secured the most commanding position in Central America, and prolonged the power of slavery for forty years.”103
Senator George Edmunds of Vermont described the Missouri Compromise as “a hollow truce.” The conflict between liberty and slavery, “‘the irrepressible conflict of opposing civilizations,’ had been thus postponed for another day.” In the interim, Edmunds continued, “the theories of government, identical with the one side or the other of that great question, thus left to smother for a mighty conflagration, were in active contest.”104 As he saw the outcome, each side rebounded from the Missouri controversy straight into the philosopher’s den, where they worked out their ideas and perfected their polemics. The two political regimes were preparing for their next inevitable collision. Eventually, they would compete for ascendancy in America.