Racism caused the American Civil War, plain and simple: a
racism that transcended social culture, geographic section, and political
orientation, and became entangled with the creation of the Constitution and the
Columbus discovered the Americas in 1492, and within three
years the beginning was made of the harsh oppression which would cause the
native races to disappear and bring Africans in chains to America. One hundred and thirty years later, at the time the Jamestown colony took
root in Virginia, slavery was the rule in the Americas. Initially, to people
its American colonies, the British government sent indentured servants to the New World, then criminals, and finally Africans as slaves. By the middle of the Eighteenth
Century, the slave trade had developed into a huge business, profitable to both
the indigenous entrepreneurs along the West African coast and the owners of New England ships. Slaves were assembled in Africa through purchase, barter, raiding,
kidnapping and warfare, brought to the coast by Africans and sold to African brokers who
held them in barracoons until ships arrived to carry them by the Middle Passage
to America. The total volume of this trade is unknown, but during its heyday at
least seven million enslaved souls reached American shores.
of Total Population by State, 1790
E. Cramer, Black Demographic Data, A Sourcebook (1997))
The Fledgling United States, 1787
The map illustrates the military situation as the founders
knew it, in 1787, when at Philadelphia they drafted the Constitution. At that
time the general government of the “United States" was known as the Continental
Congress, a body made up of representatives of the several “States" which could
pass no substantial laws governing the whole without unanimous consent. With
their “country" surrounded as it was by the Great Powers of Europe, the
founders at the time the constitution was written had to be thinking there was
going to be heavy military confrontations between their Union and the Great
Powers for possession of the resources of the continent. Therefore, the
paramount thought in all their minds had to be the concept of unity—the
principle of all for one and one for all. This reality explains how two
distinctly different societies became so locked together politically that no key
but war could separate them.
History records the plain fact that, at the time the Constitution
was drafted, the attitude of the people living in the states north of the Mason-Dixon line was steadily coalescing in support of abolition. In 1777, Vermont prohibited slavery through its constitution. In 1783, the supreme courts of Massachusetts and New Hampshire declared slavery volative of their state constitutions. In
1784, the legislatures of Rhode Island and
Connecticut abolished slavery. And by 1799, New York and Pennsylvania followed suit, with New Jersey tending to follow. Yet, at the Philadelphia
Convention, their leaders—men like Benjamin Franklin, John Jay, and John
Adams—joined with the great men of the South—George Washington and James
Madison—to fashion a new government for the country that would preserve the
legality of slavery in the United States for eighty years. The simple fact of
the matter was that National Security depended upon slavery at the time: the
North needed the South to be a functioning economic unit of the Union, if unity was to have any value in staving off the great powers of Europe.
The Continental Congress was in session in New York at the same
time the Constitutional Convention was in session in Philadelphia. Key
negotiations occurred between the two bodies which resulted in the formation of
the new government.
On the South’s side there could be no common government
unless its slave population was counted in the calculation of the number of
representatives to be assigned its congressional districts. On the North’s
side, there could be no common government unless Free states would always
exceed Slave states and thus ultimately control the balance of power.
Since Virginia held title by Royal land grant to the “Old Northwest Territory," a deal was made whereby the Continental Congress accepted Virginia’s cession of the Territory to the Union, with slavery prohibited therein; and the Constitutional
Convention accepted the insertion of Article I, Section 2 into the
Constitution. (“Representatives. . . shall be apportioned among the several
States. . . according to their respective numbers, which shall be determined by
adding to the whole number of free persons. . . three fifths of all other
Both sides understood at the beginning of the new compact
that when all the existing territory of the Union was turned into states, there
would be more Free states than Slave; but not enough Free states to make up a
super majority—the number needed to amend the constitution. As long as that
number did not reach three fourths the constitution, permitting slavery plainly
by its terms in any state that embraced it, could never be amended. Thus, the
constitutional provision of Article I, in conjunction with Article IV, Section
2—“No person held to labor in one State, under the laws thereof, escaping into
another shall. . . be discharged from such labor"—created the uneasy alliance
that preserved the institution of slavery in the South for another eighty
The Continental Congress was handed the proposed
constitution that the Philadelphia Convention had drafted: instead of voting it
up or down, under the authority of the Articles of Confederation, the Congress
chose to send it to the legislatures of the several states as Madison proposed;
so that the legislatures might form conventions
of the people to vote it up or down. Thus, in political theory, the
sovereign power of the people would trump the paper barrier presented by the
“perpetuality" of the Articles of Confederation..
Confederation and Perpetual Union between the States
Unanimous Consent July 9, 1778)
“Whereas the Delegates of the United States of America in
Congress assembled agree to certain articles of confederation and perpetual Union between the states to wit:
Article I. The style of this confederacy shall be “The
United States of America."
Article II. Each State retains its sovereignty, freedom and
independence. . .
Article III. The said states enter into a firm league of friendship
with each other, for their common defense, the security of their liberties,
and. . .bind themselves to assist each other against all force made upon them.
Article IV. . . . the
free inhabitants of each of these states shall be entitled to all privileges
and immunities of free citizens in the several states. . .
Article V. Each state shall maintain its own delegates to
the Congress. . . In determining questions in the United States, in Congress
assembled, each state shall have one vote.
. . . .
Article XIII. The Articles of Confederation shall be
inviolably observed by every state, and the Union shall be perpetual; nor shall
any alternation at any time hereafter be made in any of them; unless such
alternation be agreed to in a congress of the united states, and be afterwards
confirmed by the legislatures of every state. . . and we do further solemnly
plight and engage the faith of our respective constituents, that they shall
abide by the determination of the united states in congress assembled, on all
questions. . .and that the articles shall be inviolably observed by the states
and that the union shall be perpetual."
“Article VII. The ratification of the conventions of nine
states, shall be sufficient for the establishment of this constitution between
the states so ratifying the same."
The government of the United States to be spontaneously
reconstituted upon the vote of nine states: so much for the “inviolability"
of words. Here is the explicit semantic seed of civil war and the implicit
manifestation of the ultimate axiom of political science. Despite the solemn
pledge, four times repeated, that the Union was to be “perpetual" as framed by
the Articles, which required unanimous consent of the states to be changed, the
states of the perpetual Union, not consenting, would suddenly be out into the
It’s not surprisingly, then, that soon after the
Constitution became the supreme law of the land, there emerged an irrepressible
struggle between the two sections for political supremacy: one side pressing
for the restriction of slavery, the other side pressing for its expansion. As
the threat of war with the Great Powers faded, the North shrugged off its
constitutional commitments about slavery and began sticking knives into the
South. The South, too entwined with an alien population of Africans to get rid
of it, was left with no rational choice, but to seize upon the example set by
the founders and declare, by the sovereign power of its people, independence
from the North.
When the Constitution became operative, in 1789, the United
States was composed of six slave states: Virginia, Delaware, Maryland, North
Carolina, South Carolina and Georgia; and seven essentially Free
states—Massachusetts Bay, New Hampshire, Rhode Island and Providence
Plantation, Connecticut, New York, New Jersey and Pennsylvania. Between 1789
and 1819, operating on the basis of equal division, the Congress admitted into
the Union five Free states—Vermont, Ohio, Indiana, Illinois and Maine—and five
Slave states: Kentucky, Tennessee, Louisiana, Mississippi and Alabama.
In 1804, the United States through a treaty with France received possession of the territory of the Spanish Empire, extending from the
charter limits of Virginia, the Carolinas, and Georgia, and ending at the line
of the Sabine River in Arkansas. In 1819, under a treaty with Spain, the U.S. acquired the territory of Florida.
The acquisition of this new territory put considerable
political stress on the principle of division that was inherent in the compact
shaped by the Constitution. In 1818, the free inhabitants of that part of the Louisiana Territory known as Missouri established a provisional government and petitioned
Congress for admission into the Union as a state.
The Missouri Compromise
In the House of Representatives, Tallmadge of New York moved
that Missouri be admitted upon condition that all children of slaves born after
the date of admission be deemed free when they reached the age of twenty-five,
and that the introduction of slaves into the state after its admission be
prohibited. Tallmadge’s amendment passed the House, but was stricken by the
Senate, sending the bill back to the House. The House refused to pass the bill
without the amendment.
When the debate continued into the session of 1819, Henry
Clay, then a member of the House, urged the admission of Missouri without the amendment,
on the ground that, under Article 4, Section 4 of the Constitution, which
provides that “The United States shall guarantee to every State a Republican
form of government," Missouri was entitled to decide for itself whether its
laws should recognize a right of property in persons. On this basis, the House
again passed the admissions bill and sent it to the Senate.
In the Senate, the argument arose that, under its power to
“make all needful rules and regulations for the Territory of the United States," (Article 4. Section 3) Congress had authority to prohibit slavery, and the
prohibition should be imposed for all territory above Missouri’s southern
border—the so-called 36-30 line.
In June, 1820, as the debate over admission continued in
Congress, Missouri ratified a constitution that contained a provision excluding
free Negroes from residence. A majority of congressmen then voted against
admission, on the ground that free Negroes were citizens of the states in which
they resided and, hence, citizens of the United States, entitled to all the
privileges and immunities of same, which included the right to travel anywhere
in the United States.
The outcome of the debate in the Senate was the passage of a
resolution accepting Missouri into the Union, under the constitution
prohibiting the residence of free Negroes, but with the condition that slavery
would henceforth be prohibited in the remaining territory above the 36-30 line.
After more furious debate in the House, the bill of admission passed the
Congress, with the proviso that Missouri promise not to enforce its “no free
Negroes" provision. Missouri agreed to this and thus became a state.
Under the 36-30 rule, between 1820 and 1837, the Free states of Maine and Michigan, and the Slave states of Missouri, Arkansas, and Florida, were admitted into the Union.
In 1845, the Republic of Texas was admitted into the Union. There the matter in dispute rested until the war with Mexico, in 1846-47, added the
Spanish Crown’s old Southwestern lands west of the Sabine River to the
Territory of the United States. After this war, two Free states were admitted: Iowa and Wisconsin. The Free and Slave states were now evenly balanced at fifteen a piece.
In August 1848, a bill for organizing the Oregon territory
into a state was introduced in the House of Representatives. Now began the
political struggle in earnest, which led directly to the collapse of the Whig
party and the emergence of the Republican Party, the election of Abraham
Lincoln and the descent of the people of the United States into civil war.
Consistent with the principle of the 36-30 rule, the Oregon
Admission Bill was passed by the House with a general slavery restriction in it
and sent to the Senate. In the Senate, Illinois Senator Stephen Douglas moved
to strike the restriction and insert in its place the provision that the 36-30
line be extended to the Pacific Ocean. The Senate adopted the amendment and the
bill returned to the House. Quickly, a majority of representatives voted to
reject the bill, for it was plain to see that, if the 36-30 was so extended,
the territories of Southern California, Nevada, Utah, Arizona, and New Mexico, forcibly taken from Mexico in 1847, would be open to the introduction of
With the weight of congressional representation by now
firmly grounded in the general population of the Free states, the political
fact was plain that the votes of the Free states controlled the balance of
power in Congress and they would use that power to prevent the admission of new
slave states. Even so, in the Senate, the votes showed that some senators were
more interested in the economic profits flowing from the admission of states
than in preventing the introduction of slavery.
In the Senate, at the beginning of the Oregon debate, it
appeared that sixteen states were in favor of extending the 36-30 line. Two of
these states were Pennsylvania and Indiana. Nine states, all Northern, were
against it, and three states—New York, Michigan, and Illinois, were divided. On
the final vote, the vote was 14 Free states to remove the Douglas amendment and
13 Slave states to keep it. Missouri’s vote was divided, Senator Thomas H.
Benton voting with the Free states. The senators from Iowa and Florida did not vote. In the House of Representatives seventy-eight of the eighty-eight
votes for the amendment were from Slave states and four from Free states. 121
votes were cast against it: only one of these votes was cast by a
representative of a Slave state.
When the Congress convened in 1849, there was great
excitement throughout the land. The congressional votes over the Oregon Bill
had shown that the Free states were no longer willing to honor the principle of
equal division which had originally underpinned the consensus of the
Philadelphia Convention. As a consequence of this changing attitude, the Whig
Party would disintegrate, the Republican Party would be born, and the
Democratic Party would split into conservative and radical factions, with the
radicals eventually coalescing with the new Republicans.
In the summer of 1849, President Taylor manipulated events
in California which resulted in a setting up of a convention, the framing of a
constitution, and a petition arriving at Congress seeking admission as a state.
In January 1850, the Democrats controlled the Senate but the
House was deadlocked: 111 Democrats, 105 Whigs, and 13 Freesoilers.
Henry Clay now appeared in the Senate as senator from Kentucky. When he took his seat in the tiny Senate chamber, John C. Calhoun and Daniel
Webster —both old men now—were still there. Among the younger men there was
Stephen Douglas, now the recognized leader of the Democratic Party, Jefferson
Davis of Mississippi, Salmon Chase of Ohio, the founder of the Republican
Party, William Seward of New York. And Fillmore, as Vice President, occupied
When the 1850 session opened, Thomas H. Benton of Missouri introduced a bill to reduce the size of Texas. Other senators introduced bills to
spilt Texas into more than one state. Still others proposed territorial
governments for California, New Mexico, and Utah.
Now began an intensity of rhetoric that rose and rose in shrill
noise and anger until the collapse of the Union in 1860. It began with Henry
Clay gaining the Senate floor and, holding
it for two days, arguing for a series of resolutions. Clay proposed that the
matter of Texas be postponed, that California be admitted, that the territorial
governments for Utah and New Mexico be organized without the slavery restriction,
and that the domestic slave trade existing in the District of Columbia be
At this time, Douglas was chairman of the Committee on Territories in the Senate and McClernand was
chairman of the committee in the House. Alexander Stephens and Robert Toombs of
Georgia controlled the Southern Whigs in the House and they persuaded Douglas to compromise between the two sides: in exchange for the admission of California as a Free state, additional states to be formed from the remaining territory
could determine for themselves whether to recognize or reject slavery.
No doubt motivated by
his political ambitions, Douglas agreed to Stephens's plan and both Douglas and
McClernand introduced bills in their respective chambers to that effect. At the
same time, President Taylor sent California's petition for admission to the
Congress for ratification.
Compromise of 1850
At the time these issues
came to a head, in March of 1850, the senators were at their seats, with the
galleries and privileged seats and places on the floor filled with ladies,
officers of the government and members of the House and other visitors.
Everyone present knew that when California came in the Union a Free state, the principle of equal division of territory between the Free and Slave states
would be lost forever, and the balance of power in favor of the Free states, as it had in the House, would shift in the Senate.
In the course of the
session, Seward of New York and Davis of Mississippi, friends outside the
Senate, stood behind their wooden desks, gesticulating and hurling invectives
at each other. Davis proclaimed that the Slave states would never take less
that the 36/30 line extended to the Pacific with the right to hold slaves in California below the line.
Benton of Missouri cut
in before Seward could respond, to say no earthly power existed which could
compel the majority to vote for slavery in California. In the flaring of
temper, Foote was seen to draw a pistol from his coat and point it at Benton, when, suddenly, the appearance of the gaunt form of John C. Calhoun hushed the
Calhoun leaned heavily
on his cane as he slowly swayed down the center aisle of the chamber. The contending
senators stepped aside into the rows of desks to make way for him to pass.
Calhoun's face was deeply tanned, but his cheeks were sunken and his body
swallowed in the great cloak he
Clay, Webster, Davis, Douglas and others crowded around him, escorting him to his place among the desk rows. When
he reached his old seat, Calhoun gathered the folds of his long cloak in his
hands and feebly sat down in his chair. There was a general scurrying among the
people in the chamber as they found their places and Vice President Fillmore
recognized the senior senator from South Carolina.
Calhoun rose slowly to
his full height to say in anticlimax that Mason from Virginia would read his
speech, and he sat back down.
In a matter of days
Calhoun would be dead. Calhoun's speech was cold and blunt. He had no illusions
about the nature of the Union. He knew that the incredible acquisition by the United States of territory, which stretched from Oregon to the Gulf of Mexico, would cause
the unraveling of the ropes that held the country together.
How to preserve the Union? Not by Clay's plan, Calhoun contended, for it ignored the root of the issue: the Union could not be preserved by admitting California as a Free state. It could only be done
by the North conceding to the South an equal right to the acquired territory,
to enforce the fugitive slave provision in the Constitution, stop the
antislavery agitation in the halls of Congress, in the pulpits and the press,
and amend the Constitution to expressly recognize the right of property in man.
reading of his speech, Calhoun raised himself from his seat and asked his
supporters to show their hands. Hands tentatively appeared one by one above the
heads of some of the spectators in the galleries and the senators on the floor.
As Calhoun scanned the faces of his fellow senators, Mason continued with the
speech, saying that, if the North would not do these things, the States should
part in peace. And, if the Free states were unwilling to let the South go in
peace, "Tell us so," Calhoun said, “and we shall know what to do when you
reduce the question to submission or resistance."
At this statement, the
chamber became quiet as a church. Daniel Webster leaned forward in his chair,
staring gloomily into space; Thomas Benton on the back bench sat rigid like a
slab of granite; Henry Clay sat with his hands shielding his face. In the minds
of each of the politicians came a quick black image of cities in smoking ruins.
And everywhere in the little chamber was felt the veiled touch of dreadful
black ghosts wandering.
On March 7th, 1850, Daniel Webster took the Senate floor and responded to Calhoun's speech, his
piercing black eyes flashing. Webster was dressed in tight vanilla breeches,
with a blue cloth coat cut squarely at the waist, and adorned with brass
buttons, his neck encased
in a high soft collar surrounded
by black stock.
Webster flatly rejected
the idea of separation of the States as a physical impossibility. It is
impossible, he said, for the simple reason that the Mississippi cannot be cut
in two, the North to control its headwaters and the South its mouth. How could
the North's commerce flow uninterrupted from the Ohio and Mississippi valleys
to the Caribbean? What would become of the border states as they are pulled
north and south? What would become of commerce between the West and the East?
Then the Senator from Massachusetts suggested to the Senate the one politically honest solution which might have
redeemed the tyranny of the people of the Free states, in bottling up the
African Negroes in the old states of the South.
Return to Virginia, Webster proposed, and through her to the whole South, the two hundred millions of
dollars the National government obtained from the sale of the old Northwest Territory she ceded to the United States—in exchange for the abolition of slavery
in the South.
Here was a solution to
the problem of maintaining the South’s economic integrity—a solution which recognized
that the existence of slavery was a national, not sectional, responsibility; a
solution which shared the burden the abolition of slavery entailed. But to
adopt it, there must have been included the recognition that the Africans were
now “citizens of the United States," with all the privileges and immunities
that term entails—the right to travel, the right to litigate in the courts, and
the right to vote. This the Northern senators were not then prepared to allow. It would
mean living with the Africans on a basis of equality.
Once freed, where were
the Africans to go? How were they to earn their living? What was to be their
new place in society? Where? And what was to be the conditions of the society
in which they might find their place?
The then existing social
caste of the African was founded in a deep-rooted prejudice in Northern public
opinion as well as the South. Before the Revolution, it was not southern
planters who brought the Africans in chains to America's shore. It was New
England vessels, owned by New England businessmen, manned by New England
citizens, which traversed the Atlantic Ocean a thousand times to bring black
cargo wailing into the ports of Norfolk, Charleston and Savannah. In 1850, the
laws of many of the Free states did not recognize free Africans as citizens.
They could own certain property and they were required to pay taxes but they
could neither vote nor serve on juries, and their children were forced to attend
segregated public schools.
Just the year before,
for example, in 1849, a little five year old colored girl, Sara Roberts, had sued
the Boston School District, seeking the right to attend the school closest to
her home, instead of the colored school way across town. Though colored
children, the Supreme Court ruled, have a right to public education, the right was
limited to a separate education. (See Roberts v. Boston (1849) 59 Mass. 198) New England had no slaves, it is true, but still a
majority of its citizens didn’t want to live with Negroes.
Thus, even if the
Government of the United States could have found the means somehow, to
compensate the slaveowners for the taking of their property—Alexander Stephens
thought compensation was worth two billion—and though the former slaves might
live peacefully with their former owners, it could not be done on the basis of
equality under law, and certainly not on the basis of citizenship. Emancipation
would bring the Africans the freedom to perform work for some form of wages,
but for a long time to come, in the eyes of most whites in the North as well as
South, they would be a degraded and despised people not fit to socialize with.
of Slave Population in 1860
The Death of John C. Calhoun
John C. Calhoun died on March 31, 1850. The funeral ceremonies were conducted in the Senate chamber. President
Taylor, Vice-president Fillmore, and Cobb, the Speaker of the House, attended
with the members of the Supreme Court. The diplomatic corps was also present,
standing with the other dignitaries in the well in front of the screaming eagle
perched above the Senate President's chair. Daniel Webster and Henry Clay
walked at the head of the simple metal casket as the pallbearers brought it
down the center aisle past the rest of the senators standing by their desks.
The senators and
dignitaries closed in around the pallbearers as they set Calhoun's casket down. In his eulogy, Webster said
there was nothing mean or low about the man who had spent his life in the
service of the National government, first as senator, then secretary of state,
then vice president and finally as senator again. In fulfilling his public
duties, Webster said, Calhoun was perfectly patriotic and honest.
. When the ceremony
ended, the casket of South Carolina's greatest son was transported by caisson
through the streets of Washington to the Navy landing and taken by vessel down
the Chesapeake, past the Capes into the ocean and then to Charleston harbor
where it was brought ashore and laid to rest in the quiet little churchyard of
St. Phillips Church. Today, a hard-faced statute of Calhoun stands in a small,
bare park in Charleston through which African Americans daily stroll.
Thomas Hart Benton was
the next oldest member of the Senate behind Webster. He had spent thirty years
in the Senate, voting always against measures which favored the slave interest.
To convey his disdain for Calhoun's political views, Benton had turned his back
as Webster spoke. Benton thought Calhoun's ideas were treason.
Benton was wrong about Calhoun. In Calhoun's view,
allegiance to the sovereign meant faithful service to one's native state, the
minority social group of which each American citizen was then a constituent
member, and not faithful service to the Federal government.
function of the federal government, Calhoun thought, was to administer the
external affairs of the aggregate of the group. His view was consistent with
the view of the Old states, whose political leaders designed the original Union. The delegates to the Constitutional Convention which framed the constitution, in 1787,
were elected by the state legislatures. But the instrument, when it came from
their hands, was nothing but a mere proposal. It carried no obligation. The
people of each state acted upon it by assembling through their delegates in
separate conventions held in each state. Thus, the government of the United States ultimately derives its whole authority from these state conventions. Sovereignty,
whether the Federal Government likes it or nor, resides in the people.
By accepting the
stipulation that the assent of the people of merely nine states was sufficient
to make the constitution operative, the delegates to the Constitutional
Convention and the delegates to the United States Congress expressly adopted
the political principle that the people of the states, in a combination which
amounted to less than the whole people of the United States, were naturally
free to leave the "perpetual union" of the United States and among
themselves, "form a more perfect union."
The only constraint on
the power of the people of the seceding states to disengage from the perpetual
union defined by the Articles of Confederation was the power of the people of
the States remaining loyal to the original Union to resist disengagement. The
nation styled the United States of America, therefore, was certainly not one
Nation indivisible, with liberty and justice for all: it was a combination of
divergent political societies, motivated by self-interest to unite together
against the world.
When the people of the
Old states first formed a Union between themselves under the Articles of
Confederation, Virginia held title from the English crown to the territory
north and west of the Ohio River extending to the Mississippi valley and the Great Lakes. Virginia could have remained aloof from the original Union and adopted the
policy of concentrating a population sympathetic to its culture in the area of
what is now Ohio and Michigan. Such a policy would have blocked New England from expanding the influence of its culture westward.
In such circumstance, if
New England did not attempt by force of arms to wrest the Northwest Territory
away from Virginia, Virginia and its allies might eventually have gained
possession of all the territory between the Mississippi and the Pacific. Just
look at the map!
Virginia certainly possessed the men, materiel and the allies necessary
to enforce a policy of unilateral expansion into the western territories. Instead,
Virginia not only joined the original Union but assented to the adoption of a
more perfect union transferring in the process title to its Northwest Territory
to the United States—with the stipulation that slavery be prohibited there. Truly
Virginia, the mother of states, stands at the head of the first flight.
Virginia's voluntary transfer to the United States of its title to the Northwest Territory radically changed the strategic
situation for New England. Instead of being bottled up on the northeast
seaboard of the continent, the people of New England could peaceably migrate
west and north of the river Ohio and take their culture with them. It can
hardly be imagined, under such circumstance, that New England could have
reasonably believed that Virginia and her allies would not likewise expect to
migrate with their culture west and south of the river.
The principle of
division of the Territory of the United States between two fundamentally
divergent forms of Republican government, therefore, must have been understood
by the whole people of the United States to be the bedrock upon which the
political stability of the Union depended. If the representatives in Congress
of a majority of the people of the United States were to discard it, without
reference to the powers granted them by the Constitution, they could expect the
people of the affected States to judge for themselves whether the usurpation
justified their secession.
After Calhoun's death,
the Congress returned to the debate regarding the admission of California in the Union as a Free State. As a consequence of the debate that had been waged
between Webster, Clay, Benton and Davis, in the early months of the 1850 Senate
session, the bills and amendments the senators had suggested were sent to a
joint committee on the territories.
The Southern Whigs, led
by Alexander Stephens and Robert Toombs, who were in the House at that time,
wanted the Congress to agree that, in organizing all other territorial
governments formed from the newly acquired Spanish territories, the settlers
should be left alone to introduce slaves or not, and to frame their
constitution as they might please. Stephen Douglas, as chairman of the
committee on territories in the Senate, agreed with the Southern Whigs' plan
and introduced a bill in the Senate in March 1850. Then Henry Clay was made chairman
of a committee to review the series of resolutions he had offered on the Senate
On May 8, 1850, Clay reported an "omnibus" bill which provided for restrictions on the
introduction of slavery into the New Mexico territory. Jefferson Davis
countered with an amendment which would allow slavery in Utah and Douglas moved to strike previous
amendments to his bill. In the
House, the majority rejected several amendments which would have allowed
slavery to exist in the western territories.
In the Senate, in June
1850, Webster spoke in favor of Douglas's latest proposed amendment, which would
leave the territorial governments free to decide the slavery issue for
themselves. This meant that all territorial governments formed after the
admission of California in the Union would not be subject to a slavery
At this point in the debate,
President Taylor died, Fillmore became president and Webster left the Senate to
join the Cabinet. After these events, in August 1850, with the admission of California and the organization of the territories of Utah and New Mexico, the Congress
adopted the policy of leaving the issue of slavery to the territorial
legislature to decide. At this, a country lawyer in Illinois, Abraham Lincoln,
In December 1852, a bill
was introduced in the House to organize Nebraska territory. This territory was
part of the territory obtained by France from Spain and ceded to the United States, in 1804. The bill passed and went to the Senate, in March 1853, but was
voted down. The bill as it passed the House provided for the organization of a
territory bounded by the 45th parallel on the north, Missouri and Iowa on the east, in the south by the 36th parallel and on the west by the Rocky Mountains.
The issue of organizing
the Nebraska territory had come up in the Senate before 1853, but the Slave
states rejected the organization bills because they did not want to open the
territory to settlement under the restriction imposed by the Missouri
Compromise. In addition, by keeping settlers out of Nebraska, the proposed
transcontinental railroad could not be built from either Chicago or St. Louis, leaving open the possibility that the railroad would pass through Texas
Later, in December 1853,
Dodge of Iowa introduced an organization bill for Nebraska. This bill was
referred to the Committee on the Territories which was chaired by Stephen A. Douglas.
In January 1854, Douglas reported favorably on Dodge's bill, but an amendment
was attached to the bill which declared that, in accordance with the principles
adopted in 1850, all questions relating to slavery should be left to the
decision of the people who occupied the territory.
When southern senators
indicated that they would introduce an amendment expressly repealing the
Missouri Compromise, Douglas withdrew the Committee's report and presented it
again with two amendments: one provided for two territories to be named Nebraska and Kansas and the other asserted that the Missouri Compromise had been superseded
by the Compromise of 1850.
On March 3, 1854, the Senate passed Dodge's bill as reported by Douglas by a vote of 37 to 14. Slave
state senators voted 23 in favor. Free state senators voted 14 to 12 in favor.
The vote made plain that the Free state senators cared more about opening the Indian
territory for construction of a railroad to the Pacific than they did about restricting
The House, with the
general population of the Nation having shifted in favor of the restriction of
slavery, experienced a bitter fight over the issue of the express repeal of the
Missouri Compromise. On May 22, 1854, the Dodge bill passed the House by a vote
of 113 to 100. As soon as the bill became law, the people of the border states began agitating for the opening of the Indian territory south of Kansas and west of Arkansas in order to open trade routes to Texas, New Mexico and California.
Meanwhile, Charles Sumner,
freshman senator from Massachusetts, joined by Salmon Chase of Ohio, published
a paper, which appealed to disaffected Whigs and Democrats to oppose the
"monstrous plot" of the slave power to spread slavery further into the
When Douglas introduced
the revised bill for debate in the Senate, he had charged that Sumner and Chase
were confederates in a conspiracy to force the abolition of slavery. The two
senators, Douglas had bellowed, were the agents of "Niggerism in the
Congress of the United States." Interrupting Douglas, Sumner snapped back
that the policy behind the effort to repeal the Missouri Compromise, which the
amended bill expressly codified, was a "soulless, eyeless monster—horrid,
unshapen and vast."
For a month, Douglas, Butler, Mason and Sumner and Chase wrangled over the issue. Douglas saw the opponents to
the bill as strutting down the path of abolition, "in Indian file, each
treading close upon the heels of the other" avoiding ground "which did
not bear the foot-print of the Abolition champion." Deep into the debate,
Sumner finally gained the floor and declared that the slave power was reneging
on a solemn covenant of peace after the free power had performed its side of
the bargain; that it was destroying, with Douglas's revised bill, a
"Landmark of Freedom." Immediately when Sumner finished his speech
and sat down, Douglas took the floor and challenged Sumner's assertion that the
Missouri Compromise was sacred. If one congressional act touching slavery was
to be considered sacred, why not another like the Fugitive Slave Act which
increasingly the Free States were repudiating. When the vituperative debate
between the two antagonists finally ended, in May 1854, the bill easily passed
the Senate. In the House, the debate lasted two weeks, the bill passing by a 13
vote majority. The repeal of the Missouri Compromise was history. The power of
patronage proved greater than the power of principle.
Immediately after the
passage of the Kansas-Nebraska organization bill, a petition signed by 3,000 Massachusetts citizens asking for the repeal of the 1850 Fugitive Slave Law was received in
the Senate. Since 1850, every Free State had experienced great excitement over
a "fugitive slave case." In Racine, Wisconsin, for instance, in March
1854, an African named Joshua Glover was arrested on a warrant issued by a
United States District Court judge under the Fugitive Slave Law. Glover was
accused of being a runaway slave from Missouri. Two United States marshals,
with four other men, broke into Glover's house, arrested Glover and transported
him to Milwaukee where he was placed in jail. The next morning, news of
Glover's arrest by the marshals spread across Wisconsin. Soon a mob gathered in
front of the jail. As the crowd in the courthouse square increased to five
thousand, speakers denounced Glover's arrest and demanded the repeal of the
slave catching law. Soon the temper of the mob became volatile and men gathered
in a knot in front of the jailhouse door and battered it down, freeing Glover
who the crowd then lifted bodily over their heads and carried away through the
streets, shouting, "No slave hunters in Wisconsin," Glover escaped
across Lake Michigan to Canada in a schooner.
In Boston, the very day that Charles
Sumner rose in the Senate to speak in support of the Massachusetts petition to
repeal the Fugitive Slave law, Faneuil Hall was filled with citizens protesting
the arrest by United States marshals of an African named Anthony Burns.
Speakers soon incited the crowd to action and the citizens streamed out of
Faneuil Hall and through the streets and attempted to storm the courthouse
where Burns was being held. In the melee that followed one of the police
officers guarding Burns was killed. President Pierce immediately ordered
Federal troops to Boston and they took Burns into their custody and returned
him to his master in Virginia.
In his speech, in
support of the Massachusetts petition, Sumner told the Senate that the repeal
of the Missouri Compromise annulled all past compromises with the slave power
and made future compromise impossible. No more would the Free States tolerate
the "disgusting rites" by which the slave hunters sent their dogs,
with savage jaws, howling into Massachusetts after men escaping from bondage,
In the course of the
uproar that followed Sumner's vehement words, Senator Butler of South Carolina gained the floor and demanded that the Free State senators say whether South Carolina could expect the return of runaway slaves if the Fugitive Slave Law was
Charles Sumner sat in
the desk row in front of Butler's and when Butler spoke, Sumner jerked his
chair back from his desk and stood up and faced him. Speaking over Butler's head to the spectators crowded together behind him in the vestibule space and the
public gallery at the back of the senate chamber, Sumner shouted out,"
servant a dog, that he should do this thing?"
Butler's face flushed and he stumbled slightly as he took a step backward.
Behind Butler, Mason of
Virginia leaped to his feet and, stabbing his index finger toward the domed
ceiling of the Senate chamber, he hissed at Sumner, "Black Republican, you
dare to tell us there are dogs in the Constitution." Other senators
shouted out that Sumner should be expelled for dishonoring his solemn oath to
support the Constitution which provided that a "person held to
service" in a Slave State escaping to a Free State "shall be
delivered up" on demand of his master.
As the verbal storm
swirled around him, Sumner braced himself against his chair. He stood
tight-fisted and scanned the hot, red faces around him with black burning eyes.
many are there here," he shouted, "who will stoop with Butler and Mason to be a slave hunter? Who is here who will hunt the bondmen down, flying
from Carolina's hateful hell? "
Calls of "censure,
Censure," rang out from senators seated on both sides of the aisle, but no
one directly answered Sumner's challenge. Sweeping his arm in an arch around
the Senate chamber, Sumner continued,
Sir. No Sir, I do not believe there are any dogs, however keen their scent or
savage their jaws, that can bind me to return your fugitive slaves."
Senator Cass of Michigan rose to remonstrate with Sumner, labeling his outburst "the most un-American
and un-patriotic that ever grated on the ears." Douglas of Illinois joined
Cass to charge Sumner with uttering obscenities which should be suppressed as
"unfit for decent young men to read." Mason chimed in with the rebuke
that Sumner's language reeked of "vice in its most odious form."
In rebuttal, Sumner
attacked Douglas directly, saying, "No person with the upright form of man
can be allowed—" Sumner's voice broke off.
Douglas leaped back to his feet in a rage. "Say
it," Douglas shouted.
say it," Sumner retorted; "No person with the upright form of man can
be allowed, without violation of all decency, to switch out from his tongue the
perpetual stench of offensive personality. . . The nameless animal to which I
now refer, is not the proper model for an American senator. Will the Senator
from Illinois take notice?"
not imitate you," Douglas shouted back.
not stop. "Again the Senator has switched his tongue, and again he fills
the Senate with its offensive odor."
When the newspapers
reported Sumner's harangue, the public response from the North was highly
favorable toward Sumner. The residents of Washington, generally pro-slavery in
sympathy, discussed his speech on the street corners, expressing the view that
somebody ought to kick the Massachusetts senator down a flight of stairs.
During the next two
years, the issue of the settlement of Kansas and the recognition of a
territorial government constantly occupied the attention of the Congress. The
radical Democrats and Whigs, now transformed into new Republicans, actively
supported the migration of people from the Free States to Kansas territory
while the slave power in the Democratic Party supported the immigration of Southerners.
The Pierce administration appointed a Southerner to act as Territorial Governor
and he quickly held elections for a territorial legislature. Since Southern
immigrants outnumbered their Northern counterparts early in the process of
settling Kansas, the slave power won a majority of the seats in the legislature, which was seated at the town of LeCompton, and it promptly adopted the civil law of Missouri. As time passed, however,
settlers from the Free States began to arrive in substantial number and
established towns in the northwestern part of the territory. Then they met in
convention and organized a shadow legislature seated at Topeka and it adopted a
constitution which prohibited any Africans, whether free or slave, from
residing in Kansas. In January 1856, President Pierce issued a proclamation
which recognized LeCompton as the legitimate legislature and ordered the shadow
legislature at Topeka to disband. When the members of the Topeka legislature
refused, supporters of the LeCompton legislature sacked the free soil
stronghold of Lawrence, Kansas. In retaliation, John Brown and his five sons
appeared on the scene and began killing slave-holding settlers in the
As these events were
debated on the floor of the Senate, Sumner continued to bitterly attack his
opponents on a personal level, always returning in his arguments to Senator
Butler of South Carolina and Senator Mason of Virginia, and rebuking them for
swinging the "overseer's lash" in the Senate, as if it were one of
their plantations stocked with slaves. During these debates various senators
made motions to expel the Massachusetts senator for perjury and treason, but
the motions never came to a vote.
Senator Charles Sumner Attacked
Finally, in May 1856, Sumner
spoke for three hours, calling the concept of popular sovereignty a "crime
against Kansas" by which the people of the Free states were swindled into
accepting the repeal of the Missouri Compromise.
Several days after
Sumner's "crime against Kansas" speech, Preston Brooks, a young
congressman from South Carolina, came
into the vestibule of the Senate
chamber, carrying a walking stick. The cane had a gold head and tapered from
the head down to the end with a weight of about a pound. At 12:45 p.m. the Senate recessed and most of the senators cleared the chamber except for a
scattered few. Brooks came down the center aisle and sat down at a desk several
seats removed from Sumner who was reading from a pile of documents at his desk.
When all the spectators had exited the gallery above the Senate floor, Brooks
got up from the desk, came down the aisle, to a position in front of Sumner.
When Sumner looked up at Brooks's call of his name, Brooks began furiously
whacking at his head with the cane. Sumner tried to rise, but got caught up in
his chair. Finally breaking free, Sumner staggered sideways and fell between
the desk rows, while Brooks frantically whipped the cane back and forth across
his face and shoulders.
Only when the cane
splintered into pieces too small for Brooks to handle, did the assault end.
When Brooks backed away, Sumner laid motionless on the crimson carpet of the
Senate floor. Globs of dark red blood oozed from the cuts and gashes of his
face and formed a pool around his head. Slowly, Sumner rolled over on his hands
and knees and struggled to rise. Stephen Douglas came into the chamber from the
cloakrooms where he had been standing behind the Senate president's chair, but
did not approach Sumner. Robert Toombs of Georgia and John Crittenden of Kentucky also appeared in the room but they did not offer Sumner help. By the time Sumner's
few friends arrived, Sumner was alone, slumped in his chair, the blood still
seeping from his head wounds down his neck, saturating the blue broadcloth coat
he wore. The wounds Brooks inflicted on Sumner did not cause permanent physical
damage, but they destroyed Sumner's will. Once taken from the Senate chamber,
the abolition champion soon left America and traveled through Europe for two
years, only returning to his Senate seat in 1859.
The Dred Scott Decision
The breakdown in political
civility in the Senate was made permanent in December 1856, when the United
States Supreme Court announced its decision in the matter of Dred Scott.
Eight years earlier, in 1848, Dred Scott's wife, Harriet, was sued in Missouri state court by a Mr. Emmerson. Emmerson alleged that he had purchased Dred and
Harriet from an army officer who had taken the Scotts as slaves from Missouri to army posts in the Free State of Illinois and the Territory of Minnesota, and then returned with them to Missouri. Emmerson's action was tried to a jury who
gave verdict for Harriet, but the trial court granted Emmerson a new trial.
Harriet appealed from the order granting new trial but lost in the Missouri
Supreme Court. Dred Scott then instituted suit against Emmerson in St. Louis
Circuit Court. Scott contended that the fact that he and Harriet had been taken
voluntarily into Illinois and Minnesota Territory made them free under both Illinois law and the Missouri Compromise. The circuit court agreed with Scott and Emmerson
appealed to the Missouri Supreme Court.
The Missouri Supreme
Court acknowledged that, as a matter of comity between the courts of the Free
and Slave States, many times in the past persons held to service had been
adjudged to be free by the courts of the Slave States on the ground that the
master had forfeited his chattel interest in such persons because they had been
wrongfully held to service in territories or States where slavery was deemed
unlawful. Similarly, prior to 1850 at least, many decisions of the Free State courts had held that, in a spirit of comity and in light of the Fugitive Slave
Clause in the U.S. Constitution, slaves escaping from a Slave State to a Free State must be returned to the Slave State.
But the laws of other
states, the Missouri Supreme Court held, "have no intrinsic right to be
enforced beyond the limits of the State for which they were enacted."
Since 1850, the Supreme Court observed, the courts of the Free State had
repeatedly refused to recognize the legitimacy of the Fugitive Slave Law
enacted by Congress as the controlling law of the land. Indeed, the Free State courts by 1856 persistently refused to punish persons who were known to attack
federal marshals holding runaway slaves in custody. This conduct on the part of
the citizens and courts of the Free states, the Missouri Supreme Court held,
justified enforcing the public policy of Missouri which recognized the right of
property in persons held to service as paramount.
After the Scotts lost a
second time in the Missouri state courts, Emerson sold Dred Scott to John
Sanford, a citizen of New York. Scott, alleging that he was a citizen of Missouri, then sued Sanford for his freedom in the Federal District Court in Missouri. Scott based his suit for freedom on the ground that, since the Missouri
Compromise had prohibited slavery in that part of the Louisiana territory at
the time he had been taken there, he was now free. Sanford opposed the suit on
the ground that the federal court lacked jurisdiction because Scott, as an African
whose ancestors were brought to America as slaves, could not be a citizen of Missouri. The district court rejected Sanford's argument regarding Scott's lack of
standing, but granted judgment for Sanford against Scott's claim that his being
taken to Minnesota made him free.
Scott appealed the decision to
the United States Supreme Court. Led by Chief Justice Roger Taney, a majority
of the Supreme Court, all southerners, refused to recognize that Scott was a
citizen of the United States within the meaning of the Constitution and,
therefore, the justices held, he could not sue
John Sanford in federal court.
Although a free African
residing in a state may be recognized by the people of that state to be, like
them, a citizen, Taney wrote, he cannot be a citizen of a state, "in the
sense in which the word `citizen' is used in the Constitution of the United
States." Taney argued that the word "citizen" as used in the
constitution is synonymous with the words "people of the United States" which describes the sovereign, the source of the supreme law. In
Taney's peculiar view, Dred Scott could not possibly be included as a part of
the people of the United States, in 1856, because at the time the people
established the constitution as the supreme law of the land, in 1789, Scott's
ancestors were considered "beings of an inferior order. . . [so] that they
had no rights which the white man was bound to respect." Therefore, Taney
concluded, Scott was an alien who lacked the rights, privileges and immunities
guaranteed citizens of the United States, one of which was the privilege of
bringing suits in its courts.
Chief Justice Taney
wasn't satisfied, however, with resolving the matter of Dred Scott by
narrowly interpreting the meaning of "citizen of the United States." The Chief Justice and his associates had been in secret communication
with James Buchanan who had been elected President in November, 1856. Taney
promised Buchanan that the Court would use Dred Scott's case to rule on the
issue of whether Congress had the power to make unlawful, white persons
forcibly holding black persons to service in the territories of the United States.
In 1820, the Congress
had based the enactment of the Missouri Compromise on the express power granted
it by the Constitution, "to make all needful rules and regulations
respecting the Territory or other property belonging to the United
States." Taney, with an apparent majority of the Supreme Court supporting
him, rejected the reasonable notion that the Territory clause authorized Congress
to enact laws which prohibited citizens of the United States from holding
Africans to service in the territories of the United States. The Framers
intended the express grant of power to make rules and regulations for
the administration of the territories, Taney asserted, to apply only to that
particular territory, which, at the time of the Constitution's ratification in
1789, was claimed by the United States. The power to regulate the affairs of
new territories acquired after 1789, Taney maintained, springed solely from the
express grants of power to make war and treaties, which implied the power to
In the exercise of the latter
powers, Taney argued, Congress could make rules and regulations for the new
territories acquired by the United States only in a manner which promoted
"the interests of the whole people of the United States" on whose behalf the territory was acquired. As the agent of the whole
people of the United States, Taney wrote, it was the duty of the general
government, in organizing the territories for settlement, to not enact laws
which infringed upon the "rights of property of the citizen who might go
there to reside." Thus, despite the fact that the laws Congress enacts
constitute the supreme law of the land, "anything in the. . . laws of any
State to the contrary notwithstanding," in the strange logic of Taney's
mind, Congress was powerless to prohibit a person from taking to the
territories, a person held to service under only the common law of a
Before the whole people
made the Constitution the supreme law of the land, in 1789, the sole basis for
recognizing a white person's right to hold a black person as property was the
common law of the state in which the white person resided. Yet, as the Missouri
Supreme Court explained in 1848, with Dred Scott's state court suit for
freedom, the state courts had always understood that their respective common
laws had "no intrinsic right to be enforced beyond the limits of the
State for which they were enacted."
It is true that the
whole people did recognize as the supreme law the duty of the general
government to deliver up a black person escaping from a Slave State, if the
right to hold the black person as property in the state was shown; but
the whole people did not write anything in their Constitution that said their
general government must recognize the right of white persons to hold black
persons as property anywhere else. Chief Justice Taney and his associates could
have easily decided, therefore, that, since the general government held the
territories in trust to advance the interests of the whole people, it
was reasonable for the citizen of a Slave State emigrating to the territories
to expect to enjoy the right of property in pigs, cows and horses because the
whole people recognized such rights; but it would be unreasonable for the same
citizen to expect to enjoy the right of property in man which the whole people
did not recognize.
All of the great moments
in the Nation's political struggle over slavery—the Missouri Compromise, the
Compromise of 1850, the emergence of the doctrine of popular sovereignty, the
disintegration of the Democratic and Whig parties, the rise of the Black
Republicans and the Dred Scott decision—were certainly nails in the coffin
of domestic slavery, but it remained for the nation to produce Abraham Lincoln
and place him in command of the executive branch of government, to undo the
Union as it was, under the constitution framed by the founders, and to replace
it with the constitution we live by today.
The founders used the
constitution as the means to control the power of democracy, in order to
protect the minority from the tyranny of the majority. If the power of the
democracy attempts to usurp the supreme law, twist it into something it is not,
whatever the moral ground it claims, the retribution it faces is civil war. At
its barest root the American Civil War was about the human impulse not to
submit willingly to the power of the majority to oppress. This is the irony of the war; the oppressor becoming the oppressed: It is this sacred heritage--the power of the people to change their government--that both black and white Americans can share; and General Lee's great battleflag, though sorely used in latter times, is the most poignant example of it.